Justice Ginsburg’s Groundbreaking Opinion in McCoy Revives Criminal Defendants’ Right to Autonomy

Supreme Court Justice Ruth Bader Ginsburg in 2006.
Supreme Court Justice Ruth Bader Ginsburg in 2006.
Photo edited by Slate. Photo by Mark Wilson/Getty Images.

On Monday, the U.S. Supreme Court issued a groundbreaking decision in McCoy v. Louisiana affirming that criminal defendants have a constitutional right to maintain their innocence at trial. The case revolves around Robert McCoy, who was charged with the murder of three people in 2008. McCoy insisted that he had not committed the crimes and instructed his lawyer (whom his parents had hired for him) not to concede his guilt. But the attorney conceded anyway, declaring McCoy’s guilt while asking the jury to spare his life out of mercy. This strategy failed: The jury sentenced McCoy to death. After hiring a new lawyer, he then argued that the conviction must be overturned because his previous attorney had violated his Sixth Amendment right “to make his defense.”

In a 6–3 decision authored by Justice Ruth Bader Ginsburg, the Supreme Court ruled in McCoy’s favor, ensuring that he’ll get a new trial. Ginsburg’s opinion for the court found that McCoy’s right to autonomy had been violated and that the Sixth Amendment guarantees criminal defendants the “autonomy to decide … to assert innocence” as their defense. When a client decides to maintain his innocence, she concluded, “his lawyer must abide by that objective and may not override it by conceding guilt.” (Justice Samuel Alito penned a snarky dissent, joined by Justices Clarence Thomas and Neil Gorsuch.)

Ginsburg’s holding relied heavily upon a well-regarded 2010 law review article by Erica Hashimoto, “Resurrecting Autonomy: The Criminal Defendant’s Right to Control the Case. The justice cited the article and drew from it extensively, as did several prominent amicus briefs in the case. Indeed, Ginsburg’s opinion in McCoy is essentially a vindication of Resurrecting Autonomy’s central thesis, writing its arguments into constitutional law. On Tuesday, I spoke with Hashimoto, now a professor at Georgetown University Law Center, about her article’s impact on McCoy. Our interview has been edited for clarity.

Mark Joseph Stern: What inspired you to write Resurrecting Autonomy?

Erica Hashimoto: I originally was worried that the Supreme Court might overrule the right of self-representation, the ability of a criminal defendant to argue her own case in court, so I wrote an article on that right. My work on self-representation led me to wonder why the Constitution would protect that right, and I decided that the animating interest was the autonomy interest. Telling criminal defendants that they had to accept a lawyer—particularly a state-appointed lawyer—just seemed so fundamentally wrong to me. Lawyers get to make some of the decisions along the way, but if a defendant disagrees with those decisions, she should be able to have the case tried the way she wants to. The right of self-representation guarantees that defendants have a voice in the process. It’s an important right to recognize, even though most defendants probably shouldn’t use it.

Right—most criminal defendants should still accept a lawyer. But the principle of autonomy that you described goes beyond self-representation.

A defendant who obtains counsel must still be able to make some of the most basic decisions herself. That includes the right to testify, the right to reject a plea deal and go to trial, and the right to contest guilt. These rights derive from the criminal defendant’s interest in autonomy—they fall squarely in the defendant’s capacity to choose. The lawyer is there as an adviser. He can say, “I think your chances of being acquitted are really low here, and the risks of going to trial are very high.” But every defendant is going to weigh that differently.

How did your work as an assistant federal public defender inform your view here?

There were times when I would not have taken the risks my clients took. But I felt very strongly that it was their right to make those decisions. And sometimes they turned out to be totally right. Also, I do think that people are much better at accepting consequences if those consequences are a result of their own decisions. I served as standby counsel in self-representation cases three times. One of my clients was acquitted at trial. The other two did no worse than they would’ve done had I been representing them. I would help them along the way, particularly with evidentiary objections. But they were bright folks.

Justice Ginsburg’s opinion for the court cites your article and draws from it extensively. Do you think she got it right?

I think she got it exactly right. The opinion recognizes that it is the criminal defendant who gets to make this decision about conceding guilt. If her lawyer believes her client is making a bad decision, the client still gets to make that decision.

The other big part of the opinion says that a lawyer’s error in overriding her client’s affirmative instructions results in an automatic reversal of her conviction. That’s important because otherwise, to get a new trial, the defendant would have to show what she would’ve done differently—and that she would’ve gotten a different, better outcome than her lawyer got. That’s virtually impossible to show; it’s a really hard burden.

What did you make of Justice Alito’s dissent?

It surprised me that Justices Thomas and Gorsuch joined the dissent because the right of autonomy and self-representation has originalist roots. At the founding, the default was not having a lawyer in court; the default was people representing themselves. That’s embedded within the Constitution as this idea that it’s the defendant’s case to control. Certain decisions have to be given over to the lawyer, like objections at trial, so that the lawyer can actually do her job. But fundamental decisions about which direction the case goes—ethically and constitutionally, those belong to the defendant.

How do think you think Justice Antonin Scalia would’ve voted in this case?

I always worry about trying to project where any particular justice might come out. But I would’ve been surprised had he not joined the majority opinion. Justice Scalia was very adamant that it’s the defendant who gets to decide if he wants a lawyer, and whether he wants the lawyer to be his voice. This is a case where the lawyer substituted his voice and judgment for the defendant. So I would be surprised if he had come out with the dissent.

To me, Alito’s opinion seemed to say: This guy is obviously guilty, so what are we doing here?

And of course, it doesn’t matter if the Supreme Court thinks he’s guilty or not. That’s why the second part of Justice Ginsburg’s opinion was so important. It recognizes that what happened to McCoy was just so fundamentally unfair that he has to be given a new trial.