Elena Kagan

If a defendant says he’s innocent, his lawyer can’t say he did it

If a defendant says he’s innocent, his lawyer can’t say he did it

The 6th Amendment says that a person accused of a crime has the right to the “assistance of counsel for his defense.” But what if that “assistance” takes the form of an admission by a defense lawyer that his client committed the crime — even though the client insists he is innocent?

A lawyer for a Louisiana man named Robert McCoy made just such a startling admission when McCoy was tried for the 2008 murders of the mother, stepfather and son of his estranged wife. The lawyer, Larry English, did so in hopes of sparing McCoy — who he told the jury suffered from mental problems — from the death penalty.

Alas, this audacious strategy proved unsuccessful, and McCoy was convicted...

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