when a defendant maintains his innocence and insists on testing the prosecution on its burden of proof, the constitution prohibits a trial court from permitting the defendants own lawyer over the defendants objection to tell the jury that he is guilty. the six amendment guarantees a personal defense that belongs to the accused and whether to admit or contest guilt is the example of that of the personal defense. not only because it affects the life and liberty of the accused but also because making that decision requires wayne subject of aspirations and value judgments that are unique to every individual. >> suppose the charge is murder and the lawyer says, based on what i've looked, i think your best case is self-defense. the defendant says no, i didn't shoot the person. and the lawyer says well, i think the evidence is going to show that you did, self-defense. if the lawyer goes that ever since that defense, does that fall under your theory? >> well, mr. chief justice, i think your question raises a a question both of what defense counsel may constitutionally do and also what defense counsel may not constitutionally do. i will also note first that your hypothetical in dramatic contrast to this case involves at a minimum they shared objective of obtaining an acquittal on the charged crimes. but in addition our position is that the one thing that counsel in that case and in no case may do is -- this isn't about what counsel can argue. it's not about what evidence can be introduced. it's that counsel may not stand up and affirmatively vouch, admit that his client is guilty. >> that was -- >> now, your example -- >> that was a big windup. >> yes. >> that my particular question is obviously, when you say simply that my client shot the guy. that doesn't mean he's guilty. if he did in self-defense, he's not guilty. >> that's right pixel recognizing that that is not this case, our position is, and i think the framers utterly would agree that if the defendant stands up and says look, i did not shoot that guy, as mr. mccoy said, i did not kill my own family members and i do not want my lawyer standing up and telling the jury that i did, that is for the defendant -- >> so your position is not limited to the situation where the lawyer admits the client guilt. it goes beyond that? >> that's a hypothetical and our position is that the framers,, the meaning of the sixth amendment, the meaning of the right to defend that the framers enshrined and is recognized in all, law jurisdictions is that if the defendant contests and decides to put the prosecution to its proof beyond a reasonable doubt as to an element of the offense, particularly at the actus reus, the constitution precludes the defense, his own lawyer from telling the jury that he did it. >> any element of the offense? offenses have a lot, is venue n element of an offense sometimes? >> the most extreme hypothetical i can think of is, was there a meeting in interstate commerce. >> that's a good one. [laughing] >> thank you. >> does that, the hobbs act or something? did you cross state lines? that's an audit of the offense. so if a lawyer says it's obvious that you did cross state lines,, you got 48 witnesses. undergoing argued that you argue that you didn't cross state lines. the person says that's an element of the offense pic yet to say i didn't or withdraw. >> no, no, no. the client doesn't get decide what you will affirmatively say. the client can say, even if it's just an element -- >> so the lawyer gets up, it got to prove these things. crossing state lines, that's clearly proved that we want to talk about these other things. so that violates this fundamental right? >> jew so that you and i are very clear about this, we don't think that this case presents the question because this is a case in which there was not an agreement on whether to pursue acquittal. this wasn't a disagreement about strategy, about how to be acquitted of murder. that's a huge difference, and our position in this case only depends on that. >> know, i know. you know how hypotheticals work. this is a different case and i just want to make sure i understand that your position is that the lawyer cannot vouch for any element of the defense. not just that it was self-defense, not that you didn't shoot him, all that, but any element of an offense, if the lawyer tells the jury that that's satisfied contrary to the clients wishes, that violates -- >> our position is that the defense that the framers enshrined in the sixth amendment and that is recognized in the entire rest of the common-law world is that whether it's admitting guilt or not, if the defendant said i did not do x, i did not kill my family members. defense counsel may not affirmatively tell the jury that he did, and asked that he be required to spend the rest -- >> i did not cross the pennsylvania state law in the course of the -- >> that's right. the defense lawyer doesn't have to say to the jury, he does have to say one word about crossing state lines. what you can't say is i am telling you that mr. mccoy killed these three family members. >> that is fairly simple. the defense attorney cannot concede any element of the offense. >> if there is a contemporaneous objection, the trial court may not permit the defense lawyer to admit any element of the offens offense. >> right there is the problem. that's the problem in my mind. faretta itself poses a problem because a large percentage of the people that insist on representing themselves, particularly in death cases, , e going to walk right into the death chamber. a lot of people are not capable of managing their own defense. now we have lawyer and suddenly come in with the constitutional role that's going to tell the lawyer how to argue his case. how do i know what you say is true? the people who know this are the trial bar, if anybody. how do you know whether there are cases where in fact, to make a sensible defense for this person who might have one, the lawyer has to say for the jury, because what other witnesses have said and so forth, that letter did cross state lines. and if we agree with you in this, which is a very different case, the argument against agreeing with you in this is it would be like a balloon expanding into we don't know where what, because they are filled with elements, the federal code. before you know it, lawyers will have a hard time defending this person. and you're walking right into jail when you start telling your lawyer how to run his case. now, that's the concern that i think is there in the chiefs question. i would like to know your response to what i consider a very practical concern. >> my response as the question noted is, there is no need for this court to decide the elements question or any other hypothetical in which there is a shared objective of acquittal in order to decide this case. >> well, that would be surprising. >> my position with -- >> that's surprising because if we announce that we are not deciding it, there are like 200,000 criminal cases in the lower courts and the would be a kind of chaos, i mean, i fear, that as to what, there are lots of people, there are many, many defendants who go through dozens of lawyers while they're objecting to this one or that one or the other one. you see what i'm worried about? i think we should decide it. >> i invite you to decide it. it will be dicta but i invite you to state what the logic is. and our position is simply this. we are talking about the defense that was enshrined in the sixth amendment, and there is no contest from the state about the contemporary understanding of this at the time. >> mr. waxman, it seems to me we have at least two axes which we bet. what is what we stop on the concession? use it goes down to elements. i pressure white would would go further than that, if the client instructs the lawyer not to exceed to admission to a piece of evidence as particularly damaging that the lawyer sees no good-faith basis for objecting. why does it go down to that level? the other is, you say the lawyer can't admit the element. but what if the lawyer casts doubt on the element? what if the lawyer had not admitted guilt but had presented a mens rea defense that really cast dispersion of the actus reus defense, any reasonable person would know what the lord is up to. he didn't use the magic words i admit but he did, in fact, essential do that. with ambiguity. what where do we draw the line? >> this court has been come as to your first, the court has been very, very clear that decisions, once a a defendant chooses to be represented by counsel, decisions about what evidence to admit, what objections to raise, what witnesses to call, with the exception of the defendant, and what witnesses not to call and what arguments to be made are for the lawyer, reviewable if at all under the ineffective assistance of counsel defense. so evidence, arguments, witnesses, this case is only about -- and you say there's a small difference, that this is all the difference in the world. >> sometimes though a piece of evidence is far more important than an element. take the chief justices example of a hop sector interstate commerce elements issue you not that big of a deal in those cases. but admission of a piece of litter or admission by the defendant is a huge deal. >> in the real world what the defense objected and i've been representing death row inmates for this is my 40th year, defendants are not drawing a line and sang you can't admit that something moved in interstate commerce across state lines. what they are concerned about and what they have an autonomy, dignitary right to have protected is i didn't do this, i didn't commit the actus reus. >> mr. waxman, if we concede the general proposition that you're right, the client has right to say i didn't do it, but that's a defense. .. but then what? how does the lawyer back up that defense, i didn't do it, when the lawyer's view there is no basis for taking that position? >> justice ginsburg, the defendants and even clients in civil case all the time do thins that make counsel's job either difficult or impossible. the defendant can say, look, i don't care, i am going to testify and i'm going to give my side of the story. or, i don't care, i instructed all my family members not to talk to you, not to provide you any information. the lawyers professional responsibility, nonetheless, is just exactly how justice white explained it at pages 257 and 258 of his opinion in united states versus wade. what happens in these cases is the lawyer doesn't, the principle at stake here is not in any way a restriction on how the lawyer presents evidence, what defenses he actually does present, how he goes about cross-examining witnesses. his obligation -- >> can we be concrete about this case? so the lawyer doesn't say to the jury, he did it, and the lawyer says nothing, and then the client wants to present this alibi that is inherently incredible. what does the lawyer do? how does the lawyer assist the client in making out the defense of the client that the client chosen? >> the lawyer will cross-examine the government's witnesses, as justice white explained, attempting to find holes in their testimony even if the lawyer believes that they are testifying truthfully. that is the hallmark of the adversary system and although it is not this case, because mr. english testified repeatedly under oath that his client belief that he was not there, and he did not do this, was sincere, sincerely reflected his understanding, even if he thought that mr. mccoy, mr. mccoy said look, i was there but i will get up there and say i wasn't, the ethics are very clear what lawyers can and can not do. that is not at issue in this case. >> mr. waxman, this sounds like my ethics class in law school and very hypothetical what you do with a lying client? and it was my understanding that every ethics rule requires the lawyer to put the client on the stand, but not assist the client in telling the lie by, you can put him on the stand and say, tell your story. if the judge or some one objects, that this person is rambling on, you say, to the judge, i can not ask questions. my client has directed me to put her him on the stand. people wan caulk -- can walk themselves into jail, they can walk themselves regrettably into the has chamber but they have the right to tell their story. >> your honor's understanding this is not question of ethics rules or perjury testimony. but your honor's understanding is correct to the vast majority of jurisdictions. >> mr. waxman, could i ask you about, because i want to understand where the line is here. so, let's, imagine a case where the evidence of the the mens rea is overwhelming. there is not a defense in the world that the that he did not commit the on mens rea. but the client insists i did not do, i did not commit the a.c.t. s -- whether both are permissible or only one is permissible. one for the attorney to concede in the opening, yes he committed the acutus ray chris and there is a good mens rea defense and you can develop that i would say that you that is not permissible. >> correct. >> that he proved he committed certain acts and had a certain mental state. our defense here will be that he didn't have the requisite mental state and everything else done during the trial is directed toward that. there is no attempt to put the government to its proof to try to poke holes in the witnesses called to establish the a.c.t. us raus. is the latter permitted? sew long as as he didn't say the words, it is okay? >> it may or may not be okay. let me be very clear about this. the core sixth amendment is at issue here where a defendant says, this is personal defense. i can make my own value judgments about whether i do or do not want to ache a minuscule chance of not being convicted and spending life in prison. the sixth amendment prohibits the lawyer from affirmatively telling the jury i'm telling you he is guilty and he is should spend the rest of his life -- that is the right of issue here. >> i understand your position but what is the answer, i want to understand where the line is. >> so the line -- >> give me an answer to my question. >> the answer to your question if i understood your hypothetical correctly there would not be a violation of this fundamental sixth amendment right and the defense counsel's strategy in focusing the jury on mens rea, saying nothing or cross-examining or not would be evaluated under -- standards. >> mr. waxman? >> that's true, that's true, even, justice sotomayor will have the next question and, that's true even if the accused says, i want you to say that i didn't do it? if a lawyer does not have to do that, right? that's your position? >> our position is that the -- >> yes or no please. the lawyer does not go in and say the client did it, but the client says i want you to say i did it. that is clever defense on mens rea. that. >> i believe the lawyer does not have to do that. only a prohibition. >> justice sotomayor. >> taking justice alito's hypothetical, i walk in and say, it is the government's burden to prove this case beyond a reasonable doubt. it means they have to prove each and every element of the offense the mens rea, whatever other important element there is mutting your focus on mens rea. >> the government alleges all these things, ladies and gentlemen, of the jury it is going to be required to prove each and every element to your satisfaction beyond a reasonable doubt, i am going to introduce evidence in this case that is going to convince you even if you find that the defendant committed these hurts, he did not act with the requisite mens rea. >> that is easy for you to say in a case that you're imagining. what i'm wondering is, if there are other cases where might be far more difficult to come up with that answer? and therefore, i'm asking you this question. , suppose the opinion were to sigh in this case the lawyer explicitly said to the jury he is guilty of the crime charged. that the sixth amendment forbids. but, the rest of these complicated matters, whether it is elements, whether it is this, whether it's that, we leave at least, for now, we leave to the law schools, the bars, the ethics classes and the others because we don't want to freeze the answer into the sixth amendment. now, what would you think of that? >> i think that the only holding that this court can apply in this case is that under the -- where was your honor's, your honor's statement of the case where the defendant says and says to the judge, promptly and repeatedly i did not kill the members of my family. my lawyer wants to stand up and tell the jury that i did, and that i am guilty, and if the judge says you're the lawyer, you decide, that is a violation of the sixth amendment. >> can i take you back to the chief justice's question? because here we do have a case where the defendant is saying, you can't admit the actus ray just which is killing. i didn't kill my family. you can't say i killed my family. there. are different levels of generalitity. you can't say i didn't kill my family. one is, you can't say, that i committed the actus reus no matter what the actus reus is. you can't say i didn't commit any element of the defense, actus reus or otherwise of you say the logic of your position take us from this case, actus reus of killing to any actus reus from there, to any element. i wanter why is its that the logic of your position insists we go up that change? >> i think the better view, stop affirmatively admitting, now how the trial is conducted but affirmatively admitting any element. it goes back to my reading, my understanding, maybe i'm wrong of the rule that existed, the law that existed at the time the sixth amendment was considered and adopted and what the framers must have understood and we go over this at some length in our brief. there is no con troh version about this. i think at the time, in the 18th century in england in common law jurisdiction and at the time of the framing of the sixth amendment, the, people would have been astonished as the, as the amicus brief of the bar of england in wales expresses, that the notion that the defendant could say, this is my defense, and my decision to contest this invokes my own subjective judgments about what is important to me and what is not important to me, that it would be, they would be astonished to hear that that in that circumstance defense counsel could stand up and say -- >> you're out of time but my question would be, i'm sorry. go ahead. >> no, no. >> on that it seems to me that is faretta, you have a right to control yourself representation if you're unhappy with your lawyer. your client had the opportunity, this is on his second lawyer, he had notice before trial that there was a breakdown with his lawyer. and trial court ruled he came too late to replace him with a third lawyer yet or to go to self-representation. why isn't this untimely faretta problem, accepting everything you said about the original understanding? at some point one can wave these rights too. these personal rights can be waved. >> there is no question about it but the right to the assistance of counsel and the right to your defense are not mutually exclusive rights. justice alito and then if i may, i would like to save some time for rebuttal. >> when the sixth amendment was adopted, there was not a right to appointed counsel. so i imagine somebody in mr. english's position would simply say, i'm not going to be part of this farce that you want to put on. i'm just withdrawing. and mr. mccoy would be either have to come up with another attorney very quickly or go ahead without an attorney. so i don't know how much you can read into the original understanding because the situation here is, dictated, is dominated by the fact that now there is the right to have an appointed attorney. >> justice alito, daniel webster himself could not constitutionally have done what mr. english did in this case and i don't think there would be any doubt in the framer's mind about that. if i may, may i reserve the balance of my time. >> certainly. >> thank you. miss merrill? >> thank you, mr. chief justice. may it please the court. the state proposes a rule that in a narrow class of death penalty cases counsel sometimes might be required to override his client on a trial strategy, when the strategy that the client wants counsel to pursue is a futile charade and requires him, that to defeat both their objectives of defeating the death penalty. we submit that that should be treated as a strickland ineffective assistance of counsel. >> i'm sorry, you started by saying you wanted a narrow rule. why is it narrow? seems to me that it's a rule that you're saying is absolute. why does it have to be just in death penalties cases? why would we limit your rule. >> your honor, we conceded and we would agree in most cases that the rules of professional conduct would dictate that a lawyer follows a directives of his client. >> is it the rules of professional conduct or is it the sixth amendment? the sixth amendment requires you to be represented by counsel, effective counsel but counsel. do you concede that generally, or all the time, let's not say this is a death case. say this is a robbery case, all right? robbery case. defendant says, i want the robber. the lawyer come in and do what mr. english did? yes he was the robber, but no, he didn't intend to force to use force? >> i think that the rules of professional conduct inform the sixth amendment and that they would probably give some level of greater force to the client's wishes in certain situations but again, i think that goes back to strickland. if you evaluate it as a strickland claim, then we're looking at it under the first prong of strickland as a question of -- >> so you don't think it's a sixth amendment violation? >> no i do not. i think it is ineffective of assistance claim and you have not proven that. >> you're not taking the position when you're seeing generally that a client has any right to say, i didn't do this in court? i didn't do, i didn't shoot, i didn't rob, i didn't make that call that that witness says i made? that the witness, that, that a clients, once he take as lawyer, takes, doesn't have a right to say i didn't do it? >> i think we -- >> at all? >> we wouldn't characterize it as an independent, autonomy right. we believe that it's a shared relationship, part of the attorney/client relationship when -- >> one of my former colleagues said, one must analgize these things to agency. that the defendant, the lawyer, is the agent of the defendant, and once they disagree, the agency ends. >> yes, your honor. >> so if the agency has ended because the client has said don't do this, how could it not be a violation of the sixth amendment to do it? >> because agency principles only take us so far and because even the aba standards on criminal defense standards don't suggest that they do. that agency principles, especially in a death penalty case can only take you so far. and that if we, if we look at this purely as a question of agency, then we are viewing the lawyer's relationship simply as the alter ego of the client. >> your point is, normally these are questions of the bar rules, of rules of ethics for lawyers and so forth. normally they do what the client says. that's the normal situation. right here, it was pretty clear that on the most major matter in respect to the trial he did the opposite and said his client was guilty. so why didn't this work out just the way you said? why didn't the defendant says it violates the ethics rules? he was therefore ineffective, therefore give me a new trial? >> your honor, i think this was a very, very difficult client and that is part of the equation. >> the ethics rules say it is all different, when you have a difficult client? many are difficult? >> ethics rules don't tell us what to do. >> no, but you just said the ethics rules say follow the wishes of your client. that is what's worrying obviously me in fact about the case the extent it fed into the sixth amendment because there are so many different situations but if anything is fed into the sixth amendment i would think the example of the lawyer going in against his wishes and saying he is guilty of the crime charged which is basically what happened. that that might, or must? >> your honor, i think the state has been very clear that we think that the, the defense that mr. mccoy wanted was inextricably intertwined with the alibi that mr. mccoy wanted. that it was not purely a question. -- >> they're not saying what you have to put on,. they're saying that the sixth amendment says, you can't go to the jury and say as this lawyer did, my client is guilty of the crime charged. now that's the extreme case that's put to us. now why doesn't that violate the sixth amendment? >> because at the end of the day it leaves him with a less, less of a defense, a less of, the defense is not as strong, it is a weaker defense. he has not waived his right to counsel. he hasn't waived the remedy of ineffective assistance of counsel. so he is, he is tying his counsel's hands. >> well, for sure we have given lawyers a lot of leeway to make to make quite a number of decisions when they're representing a defendant, troubled and untroubled. the idea is that lawyers no better sometimes than their clients and that we should want lodge a great many strategic decisions in their hands rather than the client's. you're not talking about there, or we're not talking about here how to pursue a set of objectives. is it better to pursue it this way or better to pursue it that way. we're talking about a client saying that you have to follow, i have an overriding objective in this case, that is to avoid the apropium admitting that i killed family members and that is it my overriding objective. you're saying that the lawyer can say it doesn't matter that is your overriding objective. i guess i want to know is why? >> well, because, first, your honor, i don't think that is entirely how mr. mccoy characterized his objective. i would describe it more as though he said, i know a better way to cross this divide and we're going to cross it by letting me drive this car over the cliff because the car will -- >> but he didn't say that he he said, this much is clear from the record, he said in no uncertain terms i do not want to concede i killed these three people. >> yes, justice. >> he wasn't talking about strategy then. he said, i do not want to concede that i killed these people. i think we, we've heard that, from waxman, a lawyer can't make that concession but the lawyer doesn't have to do anything else. they can just stand there and let the client get on the stand and tell whatever story the client wants to tell. >> no, i don't think that we -- i think that the problem that that presents is that the lawyer is now less effective than he could be especially in a case like this, when, and we will, i will give mr. english the benefit of the doubt that he did not believe that his client was going to lie and yet he believed the alibi was entirely falsified. so he is giving him the benefit of the doubt. he believes his klein was delusional. and that does bring into play other rules of ethics. doesn't give him the answer what to do, how to do it, but his ultimate objective, his ultimate objective is to do the right things for his client, to defeat the death penalty to save his life. >> but the client is saying his ultimate objective is not to defeat the death penalty. in other words, you just have conflicting objectives. i totally understand this lawyer was in a terrible position because this lawyer wants to defeat the death penalty and he has a client who says, that's not my goal here. but the question is when that happens does the lawyer have to step back and say, you know what, that's not his goal, his goal is to avoid admitting he killed his family members? >> so if that was all he had said, and that was the totality of the circumstances was, i don't want to admit that, and it was a rational, fine discussion, i don't want to admit that i don't want everybody to hear, that's fine. that is not what happened. >> we got to this -- the situation hero cured and it is an extreme situation and a difficult one but it only occurred because of a number of prior steps, many i think which are debatable. one, the decision that mccoy is competent to stand trial. the second, the judge's ruling, although i understand the reason that english couldn't withdraw. the decision that there couldn't be a continuance so that mccoy could find another attorney if he could find one that would put on his farfetched alibi defense. and mccoy's refusal to wave his right to counsel to represent himself. now if any of those had gone difficultly, the situation wouldn't have been presented. what about the issue of, what about the issue of competence and allowing english to withdraw? if, somebody like mccoy really sincerely believes he did not committees physical acts but it was all done as part of an elaborate conspiracy, he is capable of sustaining his own defense? -- assisting in his own defense? no your honor, that is a very difficult question. i agree it is a very tough question and it is the question in tension in this case but it was not the question that was presented. so the question is -- >> it was a determination that he was competent to stand trial? >> there was a determination that he was competent. there was a subsequent review of that determination on the motion for new trial by the trial judge, and there was a third review of that decision by the louisiana supreme court. >> can we mo on to the other part of it. if english says to the judge, look, your honor, i can't be part, i don't want to be part of this farce, and this farce that has the predictable result of sending this, my client to a death sentence, i want to withdraw, why shouldn't the judge let him withdraw? >> perhaps he should at a certain point in time but i think that is a limited right in and of itself and that the judge has to make that decision based on an abuse -- and that is an abuse of discretion standard and that was raised in this case too. so maybe that would have been an answer. i think it has to happen at the right time and the right circumstances. >> [inaudible]. did his lawyer put on a defense? he conceded it, he didn't fight the confidence but did he put on a defense that the defendant was not competent at the time of murder? that his mental state was such that he couldn't be convicted? >> the entire tenor of his defense was to attack mens rea and subsequently to beg for mercy and -- >> to attack mens rea on the ground he was not mentally competent at that time? >> yes, your honor. that he didn't have confident to develop the specific intent. >> counsel you've been asking us to review this under strickland but why isn't this a structural error? the sixth amendment guarantees the assistance of counsels as mr. waxman points out. and that is a fiduciary relationship, and when someone doesn't just admit an element and admits guilt of second-degree murder which effectively what happened here, why isn't that structural error, total denial of assistance of counsel, absence much assistance of counsel we should take cognizance of and draw the line there? >> well, your honor, first of all because i don't think it fits within the class of cases that have been evaluated as chronic, complete failure of adversarial testimony. >> why isn't this like fa rhett tax where you have a right to assistance of counsel, and not an agent of state assist the state in prosecuting you? >> well, initially i would suggest to you, he was not an agents of the state. he was mr. mccoy's counsel of choice. >> you agree effectively conceded guilt to second-degree murder? >> as strategy and means of defeating the death penalty and testing the state's case on specific intent. >> i'm sorry, i thought it's been not disputed that he thought, quite wrongly, that there was no mens rea for second-degree murder but it has been conceded that there, that there was a mens rea both for first and second degree and he was on only arguing for second degree? >> your honor, the facts of this case he was arguing for second degree. louisiana law does permit, does cover, fellly murder is not a specific intent to kill. that was really not issue in this case. >> i'm sorry there is a mens rea for second-degree murder. >> yes, there is. >> and so conceded there wasn't. >> i think that was a strategy decision that false under the first prong of strickland. and if that was in fact the wrong decision, then it would still fail -- leave the first prong of strickland and we would go to the second but i think that goes back to strickland and most or all of the questions how he did, what he did and choices that he made ultimately i think fall under the -- >> that is how i understand we are where we are. that in this case he did not, the lawyer, concede that his client was guilty of the crime charged. rather, he said, he conceded that the he had shot the people or killed the people but he is not guilty because of his state of mind. so to the question of the defense, that is why he started with elements and so forth. you have to go down some road like that. >> yes. >> all right. and so your view is that even here where he is saying i did this thing, but i didn't have the mental element, i did this thing, the client says, don't say i did this thing, and that's the problem, and, okay, got the problem. sorry i should have it before now but now but -- >> justice breyer, i think, i think that you captured where the state is when you said, let's don't freeze that answer into the sixth amendment. >> what's your -- that's fine to say in abstract terms, but our problem, at least mine is, i have it write something here that is going to be taken as a rather authoritative account. now what is your view as what those words should be? that he can do anything, the lawyer, no matter how incriminating it is to the client as long as he says, i want to follow a different defense, a different defense than my client wants? that is your view of it? and leave the rest to strickland and the bar association, et cetera, itself? is that your view? what is you are view if you could say it in a sentence or two? >> in a very narrow class of death penalty cases the counsel may be required to override the decision of his client if the client's strategy is futile and -- >> if we're there though in strickland, even in strickland world on deficient performance why isn't there at least deficient performance here by the lawyer admitting the element as opposed to remaining mute about it? that would have been an option that i think the lawyer could have pursued. so we would still have prejudice prong, i understand your arguments there, but why not under deficient performance? i thought under the ethical rules i which know are controlling here you would have an article for ethical violation in conceding your client's guilt? >> and i would expect them to make that argument. they have reserved their strickland claims. they reserved them before the louisiana supreme court. they can bring those claims in subsequent post-conviction review proceedings, and they have expressly reserved them in their proceedings here so i would suggest that it would not be appropriate to preadmit that eninquiry. that a state court should make that decision and that those are factual findings -- >> case comes under chronic, if it's a chronic case as mr. waxman urged that it is, then there is no strickland analysis, there's no prejudice inquiry, it is just automatic new trial. because the sixth amendment right is violated. >> and so justice ginsburg i would suggest that the sixth amendment is not violated until it's a strickland question. we submit the sixth amendment is not violated until he -- >> -- as a lawyer who has said, i concede my client did it and against the client's will, made that concession, why isn't that a chronic error? >> because i think it's not a complete failure of adversarial testing and that it fundamentally tested the state's case. it did not relief the state of its burden of proof. the state put on overwhelming evidence of this man's guilt. >> can i -- >> can i put in my notes in this case, can i take away from your argument, that the state of louisiana says that if a defendant wants to plead not guilty the defense attorney can plead guilty if the defense attorney thinks that's the best way to avoid the death penalty? >> no, your honor. >> so you do not agree with that proposition? >> i do not agree with that proposition. >> how is that proposition any different from what really happened in this case? >> because the state was still put to its burden of proof. because i think, i think that in florida v. nixon, the court did evaluate the nature of the defense itself and it is not the equivalent of a guilty plea. so he didn't change the guilty plea. he tested the state's case and he -- >> i thought he said i'm relieving the prosecutor of that burden? >> he made that statement. he did make that statement in his closing argument but he couldn't actually do it. he had no power to relief the state of its burden. >> maybe this is the same question, justice kennedy was getting at but what if there was a discussion before and the client told the lawyer, i understand you think you'ring doing your job keeping me from the death sentence but i don't want -- it is worse for me to spend the rest of my life in jail. that is my perspective. so i don't want you to pursue your objective saving me from the death penalty. i've got this, if that is in the the case i do not want to make it an easier case on second degree, our only chance is to defeat first-degree murder and here is how i'm going to do it. so you can not stand up and say he is guilty, that is just getting me life in prison and that's worse. does the lawyer still then have the right to pursue his strategy? still has the right to say, yes, i'm going to tell you he's guilty but the doesn't have the mens rea? >> i think, i think in that situation you probably are going to fail the deficiency prong of strickland and probably the prejudice prong. and you are in your hypothetical talking about a rational conversation with someone who is cooperative. that is not correct in this case. mr. mccoy simply said, i won't talk to you anymore. i want my alibi. i want to subpoena david vitter, senator david vitter and put on all this crazy stuff, and i can, i can prove that i wasn't in -- >> so the further footnote is only happens if your client is not rational? that is it where you have the freedom to ignore your client? >> no, your honor. i think that, i think that our rule by placing it under strickland falls within the principles that have been applied by state courts over and over again. that you look at the totality of the circumstances. that the rules of ethics and norms of practice do inform counsel's judgment. in most cases you would validate the decision of the client. >> miss murrill, i think all of these questions go to the same point which is strickland seems a very awkward fit here because there is nothing wrong with what this lawyer did if the goal is avoiding the death penalty. this lawyer probably did the best thing, the thing that a good lawyer would do if the goal were avoiding the death penalty. the problem that this case presents is something different. it's the lawyer's substitution of his goal of avoiding the death penalty for the client's goal, as the chief justice said, i don't care about that i have don't want to avoid the death penalty. that's not my paramount goal. my paramount goal is to insist until my last breath that i didn't kill my family members. >> well, justice kagan, i think the record reflects that's not, that what mr. mccoy wanted was to defeat the death penalty by the means that he wanted it which was his alibi. so -- >> let's take justice kagan's hypothetical then on its own term. what would be the outcome in that case? >> i think that probably, to some degree goes back to justice roberts' hypothetical about a rational conversation with a defendant who was willing to have a conversation and not simply close the door to the discussion which is much more likely to -- >> posit all of that, that we have a competent, rational, thoughtful individual who make as calculated decision autonomously, that is the route he or she wishes to go. is it, can we even call it assistance of counsel? is that what it is when a lawyer overrides that person's wishes? >> i do believe it still falls within assistance of counsel. and i think that, that is answered by the deficiency prong and the norms of practice. and owe tallet of the circumstances and he would probably win that. >> i'm thinking back that the chief asked you or justice kennedy, he quoted the language where he said i relieved you of your burden. so he says relieved you of your burden he says to the jury and he also says, that he is guilty. that was earlier. now in the context was that, you're familiar with the record, was that in fact an admission that he committed a crime, namely agree murder or second agree purposed or both? are you saying it was not a an admission, then it was not an admission he didn't tell the jury but he had a mental state that makes it impossible for you to convict or did he? >> he did. >> you said you an not convict because he has a mental state that prevents you from either convicting him of first degree or second-degree murder. >> he put that consistently. >> his closing statement said that too? >> yes. >> i'm sorry, i thought, i will go back to it, but i thought the essence of his closing statement was, he is not deserving of the death penalty because, as you heard him, he is a sick man? >> if the -- the specific words that he used, the totality of his defense from start to finish was he did not have the mens rea necessary to support the death penalty, the first-degree charge. that was the gist of it. there is some creep in his arguments over time, the words are there on the page, but i would submit to you again that is argument and that is a deficiency question under strickland. that that is always, argument has always been a question of deficiency under strickland. that is not a new proposition. so i think that, if we're, he still, and i would submit, we should go back and look at what happened with the court, and that, that ultimately, to my very able friends, to the left of me, this is not a court error. this is a counsel decision and the court around the prosecutor went over, bent over pack ward to try to protect this record. there was very little more they could do to protect the record, once trial had started, once they were at the point they were choosing a jury. so i think it was a very, very complicated situation and when we get to that point then it needs to be a strickland question. -- too hard. >> when you say strickland question this, the client says, i didn't do it, and i have a right to take that position. do you agree that a client has the right to take that position? >> certainly, your honor. i think the client can take that position. >> so the client can do that. and the client can say, when my lawyer tells you that i did it, he has violated my privilege of self-incrimination? he has incriminateed me. he has said i have done something that i haven't conceded that i have done. what happened it my fifth amendment privilege? >> justice ginsburg, i think that the fifth amendment could be implicated in certain factual scenarios. i think in in particular case what we saw were a repeated, consistent sequence of waivers of the fifth amendment so that everything he said was already in the record. that he had repeatedly put this information with his alibi statements and his statements in the court where the court continued to miranda and read him his rights over and over and over again. so all of this information was in the record and now counsel has to cope with it and that was part of the problem too. so it is a situation where you certainly have a very difficult client. you had a death penalty case. we are very near two days before trial and that is where we are suggesting you draw the line and treat it as ineffective assistance of counsel claim. but not that it doesn't implicate other rights potentially depending when it happens. >> thank you, counsel. three minutes, mr. waxman. >> i know i will never do this i will try to make five points. first, justice gorsuch, this is structural error. the fact of the matter is that this was presented to the trial court not once but twice on the record that what the defendant was asking for is, i don't want my lawyer to admit that i am guilty, and the trial court's ruling in this case made that structural error and not ineffective, not properly viewed as ineffective assistance of counsel just as in gonzalez lopez and in faretta it was structural error. second the notion that what mr. mccoy was asking for was not that his lawyer not stand up and admit that he was guilty, but that he insists on putting on an alibi defense is simply refuted by the record at page 398 of the joint appendix, this is during an argument, six months before the trial, the argument was all about whether his, mr. mccoy's subpoenas had to be enforced or not and whether mr. english should be supporting him. mr. mccoy tells the court, i am not asking him to validate any theory. there was a dispute about whether mr. english was in fact investigating his alibi defense if there ever were a subsequent hearing about that, that would be tested but this is flat-out a case which the judge was told, as soon as this issue arose, twice on the record, i believe that i have an ethical duty to save my client's life and the clienteling the judge, i do not want my lawyer admitting that i am guilty. that's structural error. number two, justice breyer, this was absolutely an admission of the guilt on the charged crime. at opening and at closing mr. english got up and said, i am telling you he is guilty of second-degree murder and he should spend the rest of his life in prison. and under, under louisiana law the jury, the jury was required to be given the choice, the following choices which it was, murder one, murder two, manslaughter, and not guilty. and there is no dispute in the record that murder one, murder two, and manslaughter all have exactly the mens rea defense as murder one. that is not what distinguishes those crimes. as to chronic, as we said we don't think -- >> you can finish your third point. >> as to chronic, we don't think this is an ineffective assistance of counsel case but it surely is, it surely is chronic if it were because if the constitutional right to defend means anything, it is the right to decide to test the prosecution on its burden of proof beyond a reasonable doubt. >> thank you, counsel. the case is submitted. >> the u.s. conference of mayors is taking a break until about 1:15 eastern when virginia senator mark warner will address the gathering. we expect to hear comments from vice president at jpmorgan chase, "weekly standard" editor bill kristol and others. again that will start live at 1:15 eastern here on c-span2. sunday night on "after words," republicannings in committee spokesperson, cale leigh mcmen any, the making of a populist movement. >> i had conservatives say to me, use this word, i'm not a populist, liberals express aversion to this word. to me it sums up what the book is about, it is the people. i wanted to honestly profile the people on the left and on the right. moist of the voters i profiled were trump voters and i profiled some that were not. to me it was capturing an electorate to deliver one of the most astonishing electoral defeats certainly we've seen certainly in my lifetime and certainly in modern history. so it was a profile of the american people on given issues from terrorism to poisoned watered in flint, michigan. watch add words, sunday night eastern on c-span2's booktv. francis townsend, former homeland security advisor to president george w. bush spoke at american bar association earlier this month, addressing the committees on law and national security. this is just over 45 minutes. >> gooding, everybody. good morning. thank you for braving that very cold weather out there. [laughter]. my name is jamie baker, the chair of the aba standing committee on law and national security. one of the missions of the committee on law and national security is to bring transparency to the national security law issues of

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