The United States Law Week

Supreme Court Rejects Rogue Lawyer Appeal in Texas Death Case (1)

Feb. 28, 2019, 9:50 AMUpdated: Feb. 28, 2019, 10:43 PM

The U.S. Supreme Court rejected an appeal from a Texas death row inmate who argued his lawyers went rogue at his 1990 trial, abandoning his insanity defense and conceding his guilt to the jury instead of defending him against charges of killing his estranged wife’s parents and brother.

In clearing the way for Billie Wayne Coble’s execution set for Thursday night, the justices turned down the opportunity to clarify how to apply their decision from last term involving another defendant whose lawyer conceded his involvement in a triple-homicide.

No justices noted their dissent from the high court’s order, issued late in the day, denying Coble’s stay application and petition for review.

In the case from last term, the lawyer’s concession over Robert McCoy’s vigorous in-court objection violated his Sixth Amendment rights, Justice Ruth Bader Ginsburg wrote for the 6-3 majority last May in McCoy v. Louisiana.

McCoy’s lawyer thought the concession strategy could help avoid a death sentence by attempting to build credibility with the jury instead of claiming innocence in the face of strong evidence. Justices Samuel A. Alito Jr., Clarence Thomas, and Neil M. Gorsuch dissented.

Since then, courts across the country have reached divergent views on how to apply McCoy, Coble said in urging the justices to take his case and clear up the confusion.

One issue the high court could have addressed by taking up Coble’s appeal was whether McCoy only applies when the objection to the lawyer’s strategy is lodged by the defendant in open court, as McCoy did, or whether it also applies when the defendant only conveys disapproval to his lawyer, as Coble did. Courts have gone both ways on the question, Coble said in his petition.

His case also differed from McCoy’s in that he didn’t claim total innocence. Instead, Coble was intent on his lawyers presenting an insanity defense for the 1989 killings, he said, but they dropped it at the last minute.

“These circumstances squarely present this Court the opportunity to clarify that McCoy is not simply about insisting upon one’s innocence,” Coble said in his petition. “The Sixth Amendment right does not require a defendant to choose one option—absolute innocence—or otherwise relinquish the constitutional protection.”

Coble blasted his trial counsel’s decision to essentially forego a legal defense and instead opt to play “silent archival footage that depicted scenes from the Vietnam War—a war in which [he] fought extensively as a member of the Marine Corps some decades earlier.” Rather than make an opening statement in closing arguments, Coble said, they conceded his guilt.

That “feeble” defense “stunned the prosecutors, the media, and the defendant himself,” Coble said in his petition, citing a local account from the Waco Tribune-Herald.

Texas’ top criminal court rejected Coble’s reliance on McCoy, prompting his Supreme Court appeal in the hopes of an 11th-hour ruling saving him from the death chamber.

State officials countered that the Texas court’s decision should stand and his execution be allowed to proceed as scheduled.

“Coble asks for such an extension [of McCoy] because the facts of his case clearly do not come within the ambit of McCoy,” they said in their opposition brief. “Extending McCoy as Coble wishes,” the state said, “has no basis in law or policy.”

(adds denial of stay and cert petition )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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