Whistleblower News & Articles
May 16, 2018
Although we usually write about topics pertaining to the representation of whistleblowers, from time to time things come up where it’s hard for us as lawyers who care about process to remain silent. Yesterday, the Supreme Court issued an opinion in McCoy v Louisiana (16-8255) (05/14/2018) that got little attention because it came down the same day as the big sports gambling decision.
The #NotoriousRBG authored the opinion. The Court held, 6-3, that a lawyer in a capital case cannot admit his client’s guilt if the client disagrees. Importantly, this holds even the lawyer reasonably believes that it represents client’s best chance to avoid a death sentence. (The tactic did not work; the jury voted for the death penalty anyway.)
If you’re tempted to say, well duh, you’re not alone. Of course a lawyer can’t take a position in court that expressly violations his client’s stated defense. In this case, the client maintained that he didn’t do. But his lawyer said he did. But why did the dissenters take a different view of things?
We will tell you who those three dissenters were (although you could probably guess). But first, consider the question applied to a civil lawsuits like the False Claims Act. Let’s suppose we’re litigating a non-intervened FCA case and in the course of the litigation the defendant signals that it wants to settle the matter. The defense offers $1 million to settle.
The client insists that at trial he would win ten times that amount. Therefore, he says no way, but the whistleblower lawyer accepts the offer on his behalf anyway!! The lawyer then runs to the government and says hey look at this great settlement! The lawyer would get fired on the spot. A court would likely deem the acceptance of the offer unenforceable.
So why, in a comparable criminal case, where the issue is not money but a man’s life, would three justices find the defense lawyer’s move acceptable? Well, because they’re on the far end of the ideological spectrum, and the era of ringing unanimous 9-0 opinions is pretty much gone for the foreseeable future.
Yes, Justices Alito and Thomas, joined by Justice Gorsuch (sitting in for, ahem, Merrick Garland) said that they, like the Louisiana courts, saw no reason to require a new trial (and that executing a man in these circumstances would be o.k.). These three justices will be, regrettably, oh-so-predictable and oh-so-far-out for as long as they’re on the Court. (In Justice Thomas’ first vote on the court, many years ago, he joined Justice Scalia in dissent, finding that the beating of a prisoner chained to a wall was not cruel and unusual punishment. He’s remained on Planet Scalia pretty much ever since, where Alito and Gorsuch have now joined him.)
So much rests in the balance with the Supreme Court. The breakdown of our politics, though, has had a real impact on the Court–and on the law itself. When you replace Thurgood Marshall with Clarence Thomas, and when you prevent Merrick Garland from taking his seat and give it to Neil Gorsuch instead, the law evolves differently.
Fortunately for Mr. McCoy, Justices Kennedy and Roberts brought some reason to the case and joined RBG in the majority. But it will not always be so. The Travel Ban case is pending and could well be 5-4 in favor of the Trump Administration, where it might have been 5-4 the other way with Garland on the Court. In cases like that, it’s hard to have confidence in the institution of the Supreme Court when an issue as important as the Travel Ban is determined by a single vote, and that vote in turn was determined by whether or not Mitch McConnell was able to stall Merrick Garland’s appointment for over a year, denying a well-respected jurist even a hearing.
In times like these, it is good to remember (or to hope) that “the arc of the moral universe is long.” But for the litigants themselves, like Robert McCoy or an immigrant whose case and career will turn on the Travel Ban case, they don’t have forever to wait.