Seth Waxman (2015). Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

The U.S. Supreme Court on Wednesday grappled with whether a criminal defense lawyer violates the Constitution by ignoring his client's express wishes in order to save him from the death penalty.

“This sounds a lot like my ethics class in law school,” Justice Sonia Sotomayor said during arguments in McCoy v. Louisiana.

Robert McCoy argues that the Sixth Amendment prohibits a defense lawyer—as part of his defense strategy—from admitting his client's guilt over the client's express objections. McCoy's defense lawyer at trial conceded McCoy's guilt to the killings of three people despite his client's insistence he had an alibi and his express objections to the lawyer's admissions.

As in law school classes, the issue inspired a series of hypotheticals from the justices as they pressed McCoy's counsel, Seth Waxman of Wilmer Cutler Pickering Hale and Dorr, and Louisiana's lawyer, state Solicitor General Elizabeth Murrill, on what a defense lawyer can and cannot do.

What follows are some key moments from the arguments.

A Sixth Amendment rule?

Waxman told the justices that the Sixth Amendment guarantees a personal defense that belongs to the accused. Waxman's bottom line: “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 defendant's own lawyer, over the defendant's objection, to tell the jury that he is guilty.”

Can a lawyer concede any element?

Chief Justice John Roberts Jr. asked if Waxman's Sixth Amendment argument applies to bar a defense lawyer from conceding any element of the crime. If there is a contemporaneous objection, Waxman replied, the attorney cannot concede any element of the offense.

Justice Stephen Breyer interjected: “The argument against agreeing with you in this is it will be like a balloon expanding into we don't know where what, because they're filled with elements, the federal code. And 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. Right there is the problem.”

Defendants often make their lawyer's job difficult.

Defendants, and even clients in civil cases, “all the time do things that make counsel's job either difficult or impossible,” Waxman said in response to a hypothetical from Justice Ruth Bader Ginsburg. The Sixth Amendment principle does not restrict how the lawyer presents evidence, what defenses he actually does present, or how he cross-examines witnesses.

Sotomayor added: “People can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.”

What Louisiana's “narrow” rule says.

Louisiana's Murrill proposed the state's own rule to the justices: “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 to defeat both their objectives of defeating the death penalty.”

Murrill argued that McCoy's lawyer made a strategy decision and McCoy's claim should be reviewed under the two-prong test for ineffective assistance of counsel, not the Sixth Amendment.

A “terrible” position for a lawyer, in Kagan's view.

Kagan said at one point during the argument: “I totally understand that 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.” She continued: “In other words, you just have conflicting objectives. 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 that he killed his family members.'”

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