your argument next to case sixty eighty two fifty five mccoy versus louisiana mr waxman mr chief justice and may it please the court when a defendant maintains his innocence and insist on testing the prosecution upon 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 the sixth amendment guarantees a personal defense that belongs to the accused and whether to admit or contest guilt is the par example of that personal defense not only because it singularly affects the life and liberty of the accused but also because making that decision requires weighing subjective aspirations and value judgments that are unique to every individual supposed to be the the charges of murder and the lawyer says based on what i've looked i think your best case that self defense you know and the other guys they're 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 defen e if the lawyer goes ahead and presents that defense is that does that fall under your theory mr chief justice i think your question raises a question both of what defense counsel may constitutionally do and also what defense counsel may not constitutionally do also note first that your hypothetical in dramatic contrast in this case involves at a minimum the shared objective of acquittal on the charge 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 see the end up and affirmatively vouch admit that his client is guilty now big wind up with the that's what my particular question is obviously when you say simply that my client shot the guy that doesn't mean he's guilty that he did it in self defense he's not guilty and then the defense is it was self defense  recognizing that that is not this case our position is and i think the framers all utterly would agree that if a 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 ok so that is it or that is not your position is not limited to the situation with  lawyer admits the client skilled it goes beyond that we that's a hypothetical and our position is that the framers that the meaning of the sixth amendment the meaning of the right to defend that the framers ensure and then it is recognized in all common 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 offen particularly at the actus reus the constitution precludes the defense his own lawyer from telling the jury any element any element of the offense so as have a lot of with some venue an actor something did you cross the cross state lines so it's an element of the offense so the lawyer says it's obvious that you did cross state lines you got forty eight witnesses i'm not going to argue that you didn't cross the lines of the person says that's an element of the offense you have to say i didn't or withdraw not on no you don't that does the client doesn't get to decide what you will of formative lee say the client can say even if it's just an element of ok so the lawyer gets up look they've got to prove these things crossing state lines that's clearly proved but you want to talk about these other things so that violates this fundamental right just so that we're 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 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 and that's a huge difference and our position in this case only depends on that but the law did i think that you know how hypotheticals were i says this is a different case and i just want to make sure that i understand that your position is that the lawyer cannot vouch for any element of the fence not just that you know it was self defense not this didn't shoot him all that but any element of an offense if the lawyer tells the jury that that satisfied contrary to the client's wishes that violates our position defendant says i did not do x i did not kill my parents my family members the defense counsel may not affirmatively tell the jury that he did and asked that he be required to spend the rest of the night i did not i did not cross the pennsylvania state line in the course of that's right the defense lawyer doesn't have to say to the jury he doesn't have to say one word about crossing state lines what he can't say is i am telling you that mr mccoy killed these three family your answer is that is this is fairly simple the defend 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 offense right there is a problem i mean that's the problem in my mind managing their own defense and now we have a lawyer and suddenly we come in with a constitutional rule 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 of the trial bar if anybody but how do you know whether there are cases where in fact to make a sensible defense for this person who might have won the lawyer hasta say the jury because of what other witnesses have said and so forth that letter did cross state lines if we get a green with you in this which is a very different case the argument against agreeing with you and this is it will be like a balloon expanding into we don't know where or 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 now that's the concern that i think is there in the chief question and i would like to know your response to what i consider a very practical concern my response as your honour's question noted is that if there is there is no need for this court to decide the elements question or any other deciding it there are like two hundred thousand criminal cases in the lower courts and there will be a kind of chaos i mean i fear that as to what there are lots of people you know there are many many defendants who go through dozens of lawyers while they're objecting to this one or that one of the other would just as you see what i'm worried about i think we should decide ok i i invite you to decide it it will be but i invite you to state what the logic is and our position is simply this we are talking about the defense that was in shrine in the sixth amendment and there is no contest from the state about the contemporary understanding of this at the time but mr right if we have to draw a line it seems we have at least two axes we have to worry about one is where do we stop on the concession you say goes down the elements i press you why would you go further than that if the client's trucks the lawyer not to a seat to admission of a piece of evidence is particularly damning but the lawyer sees no good faith basis for objecting so what why doesn't it go down to that level that's  lawyer can't admit the element but what if the lawyer casts doubt on the element i mean what if the lawyer here hadn't admitted guilt but had presented a mens rea defense that really ca lines so i think this court has been as to your first access the court has been very very clear that decisions that once once 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 long oyur review under the ineffective assistance of counsel defense so evidence arguments witnesses this case is only about and you say there's a small difference because that's what all the difference in the world sometimes so a piece of evidence is far more deal i mean in the real world what defendants object to when i've been representing death row and i know for this is my fortieth year defendants are not drawing a line and saying you can admit that something moved in interstate commerce or crossed state lines what they are concerned about and what they have and are and autonomy dignitary right to have protected is i didn't do this i didn't com put on to make out that then the lawyer says i can't present that because you say there are witnesses i've talked to the witnesses they feel the opposite i can't put position justice ginsburg the defendants and even clients in civil cases all the time do things that make councils 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've instructed all of my family members not to talk to you not to provide you any information the lawyers professional responsibility none the less is just exactly how justice white explained it at pages two fifty seven and two fifty eight of his opinion in united states versus wade what happens in these cases is the whole lawyer doesn't have that the principle at stake here is not in any way a restriction on how the lawyer presents evidence what defenses the 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 hallmarks of the adversary system and although it is not this case because mr english testified repeatedly under oath that that his client's belief that he was not there and he did not were sincerely reflected his understanding even if he thought that mr mccoy mr record said look i was there but i'm going to get up and say that i was it these ethics rules are very clear about and it was my understanding that every ethics rule requires a 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 and if the judge or someone objects that you're that this person is rambling on you say to the judge i cannot ask questions my client has directed me to put him or her on the stand people can walk themselves into jail they can walk themselves regrettably into the gas chamber but they have a right to tell their story they not a chance in the world that the defense is going to be able to convince a jury that the defendant did not commit the act isra yes but there's a plausible defense may be a pretty good defense on men's r so about the client insists i didn't do it i did not commit the act this way it's now two ways of approaching this on the part of the defendant and defense attorney i want you to explain whether one is required or  whether one whether both are permissible or only want to promise simple one is for the attorney to concede in the opening yes he committed the act just read us but there's a good mens or a defense and developed that i take it you would say that's not permissible correct but could the attorney open by saying now they have to prove he committed certain acts but also that he had a certain mental state and our defense here is going to be that he didn't have the requisite mental state and everything it's done during the trial is directed toward that there's no attempt to put the government to its proof to try to poke holes in the witnesses who are going to be called to it may or may not be ok let me be very clear about this because your sixth amendment right that is at issue here is where a defendant says this is a personal defense i can make my own value judgments about whether i do or do not want to to take a miniscule chance of not being convicted and spending a life in my in prison the the diff the sixth amendment prohibits the lawyer from  the answer to your question is an if i understood your hypothetical correctly there would not be a violation of this fundamental six the meme that right and the defense counsel's strategy in focusing the jury rea and saying nothing or cross examining or not would be evaluated under that's your position our position is that the law is the yes or no please you're the lawyer does not go in and say the client did it the client says i want you to say i did it that's a very clever defense you have a menswear but i want you to say i didn't do in and say it is the government's burden to prove this case beyond a reasonable doubt it means that they have to prove each and every element of the  other other important element there is if the government were to prove every other element in this case beyond a reasonable doubt the one they can't prove is that the putting your focus just on interest right now i'm my defense i you know the government alleges all these things ladies and gentlemen of the jury it is going to be required to prove each an element every element to your satisfaction beyond a reasonable doubt i am going to introduce evidence in this case that is going to convince you that even if you find that the defendant committed these murders he did not act with the requisite mens rea that's easy for you to say in a case that you  what i'm wondering if there are other cases where it might be far more difficult to come up with that answer and therefore i'm asking you this question suppose the opinion were to say in this case the lawyer exploits atlee said to the jury he is guilty of a crime charge that the sixth amendment forbids but the rest of these complicated matters whether it's elements whether it's 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 six the mend now what would you think of that i think that the only holding that this court can apply in this case is that under this that where was your honour's type of that was your honour's statement of the case which is where the defendant says and says to the judge promptly and repeatedly i did not kill the members of my family my warrior wants to stand up and tell the jury that i did and that i am guilty judge if the judge says you're the lawyer you decide that is a violation of the six missing miners the one thought 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 reus which is killing i didn't kill my family you can't say i killed my family but there are different levels of generality write one is you can't say that i didn't kill my family one is you you can't say that i committed the act isra yes no matter what the actus reus is another is you can't say that i committed any element of the offense act reus or otherwise and if i understood your argument you're saying that the logic of your position takes you from this case which is an act of cereus of killing to any act of psoriasis and then further from there to any element and i guess i wonder why is it that the logic of your position insists that we go up that chain i don't think the logic of my position insists that you go all the way up the chain but all explain to you why i think the better view would stop at affirmatively it miltie nothing about what the trial how the trial is conducted but affirmatively admitting any element and it it simply goes back to my reading and 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's no controversial about this i think that at the time in the eighteenth century in england in common law jurisdictions and at the time of the framing of the sixth amendment the frame people would have been astonished as  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 in that circumstance defense counsel could stand up and the your client had an opportunity he was on a second lawyer and he had notice before trial that there was a breakdown with his lawyer and the trial court ruled he came too late to replace him with a third lawyer yet were to go to self representation why isn't this just an untimely for retta problem accepting everything you've said about the original understanding at some point one can waive these rights to these are personal rights could be waived there's no question about it but  the right to the assistance of soul and the right to your defense are not mutually exclusive rights justice alito and then if i may i'd like to save some time for rebuttal well in when the sixth amendment was adopted there was not a right to appoint counsel so i magine and somebody in mr english is 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 mccloy would be either have to come up with another attorney very quickly or go ahead without an attorney so i don't know how a jury and read into that into the original understanding because the situation  dominated by the fact that now there is the white 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 framers mind about that if i may may i reserve the well it certainly  was thank you mr chief justice and may 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 track strategy that the that the client wants counsel to pursue is a futile charade because i think we've conceded and we would we would agree that in most cases that the rules of professional conduct would dictate that a lawyer follow the directives of his client is it the rules of professional conduct or is it the six the men the six amendment requires you to be represented by counsel effective counsel counsel that would do you can see that generally or all the time let's not say this 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 it's in if you if you evaluate it as a strickland claim the 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 i do not i think it's an ineffective assistance claim and you have not proven that so you're not taking the position you're saying generally that that a client has any right to say i didn't do this or i didn't do i didn't shoot i didn't draw i didn't make back hole that that says i mean that the witness that that a client once he takes away or six doesn't have a right to say i didn't too i think we all we wouldn't characterize it as an independent autonomy right we we believe that that it is a shared relationship the attorney client relationship one counsel when one  yes your honor so if the agency has and because the client has said don't do this how could it not be a violation of the sixth because agency principles only take us so far and because even the a b a standards on on criminal defense standards and joan suggest that they do that that agency principles especially in a death penalty case can only take you so far and that if if we if we look at this purely as a question of agency then we are viewing the lawyers relationship simply as the alter ego of the client or your or your point normally these are questions of  the bar rules of rules of ethics for lawyers and so forth normally they do it the client says that's the normal situation right here it was pretty clear that on the most major matter in respect to the me a new trial your i think this was a very very difficult client and that that is part of the equation and the ethics rules say it's all different when when when you have a difficult client maybe many are difficult the ethics rules don't tell us what to do but now but you just said the ethics rules say follow the wishes of your client i mean that's what worrying me obviously in fact about the case is the extent to which it's fed into the six the men because there 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 charge which is basically what happened mr mccloy wanted that it was not purely a question they're not saying about what you have to put on or not put on they're just saying 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 that the extreme case that's put to us now why doesn't that violate the sixth of them because at the end of the day it leaves him with a less less of a defense less 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  counsel and so he's he's he is timing his counsel's hands well for sure we've given lawyers a lot of leeway to make quite a number of decisions when they're representing the defendant troubled and and the idea is that lawyers know better sometimes than their clients and that we should want to lodge a great many strategic decisions in their hands rather than the clients but you're not talking about here are aware not talking about here about how to pursue a set of objectives is it better to pursue it this way or is it better to pursue it that way we're talking about a client saying you have to follow i have i have an overriding objective in this case and that's to avoid the a program that comes with admitting that i killed family members and that's my overriding objective and you're saying that the lawyer can say it doesn't matter that that's your overriding objective and i guess what i want to know is why well because first your honor i don't think that that's 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 the car over the cliff because the car will then words to tell no you're i mean i don't think that we i think that the problem that that present says 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's giving him the benefit of the doubt he he believes his client was delusional and so that does bring into play other rules of ethics it doesn't really give him the answer of what to do and how to do it but his ultimate objective his ultimate objective is to try and do the right thing for his client to defeat the death penalty and to save his life but then i just saying that his ultimate objective is not to defeat the death penalty in other words you  just have conflicting objectives i'm in a 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 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 well and so if that's all he had said and that was the totality of the circumstances was i don't want to admit that and it was it was a rational fine discussion i don't want to make that i don't want to read here that's fine but that's not what happened we got to this this situation here occurred and some extreme situation then a difficult one but it only occurred because of a number of prior steps many of which i think are debatable one that the decision that mcqueary is competent to have to stand trial the second the judge's ruling oh 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 can find one who would put on his farfetched alibi defense and mccoys refusal to waive his right to counsel and represent himself now if any of those had gone differently the situation wouldn't have been presented so what about the issue of what about the issue of competence and allowing english to withdraw if the if somebody like mccoy really sincerely believes that he did not commit these physical acts but it was all done by as part of an elaborate conspiracy is he is he capable of this is thing in his own defense your honor that's a very difficult question i agree it's a very tough question and i think it is and it is a question and tension in this case but it's not the question that was presented and so the question is really about how a motion and the with the determination that he was competent to stand trial there there was a determination that he competent there was a subsequent review of that determination on the motion for a new trial by the trial judge and there was this third review of that decision by the louisiana supreme court the lawyer could always move on to the the other part of it so if english says to the judge look your honor i can't be part of i don't want to be part of this farce it and this farce that has the predictable result of something this my client to  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's a limited right in and of itself and that the judge has to make that decision based on an abusive and that's an abuse of discretion standard and and that was raised in this case too so i mean maybe that would have been an answer i think has to happen at the right time and right circumstance did did his lawyer put on the defen conceded that he we hadn't fight the competence but did he put on a defense that the defendant was not competent the time of the murder that his that his mental state was such that he couldn't be convicted the entire tenor of his defense was to attack admits guilt of second degree murder which is effectively what happened here why isn't that structural err a total denial of assistance of counsel absence of an assistance of counsel that we should take cognizance of and draw the line there and not to have an agent of the state assist the state in prosecuting you well initially because i would suggest to you was not a he was not an agent of the state he was mr mccoy's counsel of choice agree though th effectively conceded guilt to second degree murder as a strategy and a 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 after second degree murder but that it's been conceded that were there were that there was a bench radio both for first and second degree and he was on the arguing for second degree your honor on the facts of this case he was arguing for second degree louisiana law does for met does does cover felony murder is not a specific intent to kill but that was really never an issue in strickler and if that was in fact the wrong decision then it was still would fail to protect chile the first prong of strickland and then we would go to the second but i think that does go back to strickland and most or all of the questions about how he did what he did and the choices that he made alternately i think fall under the first and that's i know understand why we are we or the in this case he did not the lawyer concede that is calling it was guilty of the crime charge rather he said he conceded that he had shot the people who killed the people but he's not guilty because of his state of mind so it's a question of the defense that's why he started with elements and so forth you have to go down some road like yes and so your view is that even here where he's saying i did this thing but i didn't have the mental element terms but but but our problem i think at least mine is i have to write something here that is going to be taken as a rather authoritative account now what is your view as to what those words should be that he can do anything a 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 and my client override the decision of his client if that's if the client strategy is is what you know and if were there though and strickland even in strickland world on the fishing 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 still have prejudice prong i understand your arguments there but why not on deficient performance i would have thought under the ethical rules which i know are not controlling here that you would have had an argument for ethical violation in can see a client's guilt and i would expect them to make that argument they reserved their strickland claims they reserved them before the louisiana supreme court they can bring those clients in subsequent post conviction review for seedings and they have expressly reserved them in their proceedings here testing and that it fundamentally tested the state's case it did not relieve the state of its burden of proof the state put on overwhelming evidence of this man's guilt you know that a better word in my notes this case thinks that's the best way to avoid the death penalty no your honor because you do not agree with that problem 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 the next and this court did evaluate the nature of the defense itself and that it is not the equivalent of a guilty plea so he didn't change the do it he had no power to relieve 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 so i understand you think you're doing your job keeping me from the death sentence but i don't want it's worse for me to spend the rest of my life in jail that's my perspective so i don't want you to pursue your objective the saving the death penalty said i've got this and so if that's not the case i don't want to make it in easier case and second degree our only chance to defeat first to be murder and here's how i'm going to do it so you cannot stand up and say that he's he's guilty because that's just getting the life in prison and that's worse and the lawyer does a lawyer then still have the right to pursue his strategy still has the right to say yes i'm going to tell you he's guilty but he doesn't have the mens rea i think and i think at the 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's cooperated i mean that's not correct on this case mr mccoy simply said i won't talk to you anymore i want my alibi i want to subpoena are rational that that's where you have the freedom to ignore your client no your honor i think that i think that are ruled by placing it under strickland falls within the  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 jus inform counsels judgment and that in most cases you would validate the decision of the client so i think all these questions go to the same point which is strickland seems a very awkward fit here because there's nothing wrong with what this lawyer did if the goal is avoiding the death penalty this lawyer probably did the best then the thing that a good lawyer would do if the gore were avoiding the death penalty the problem that this case presents is something different it's the lawyer substitution of his goal of avoiding the death penalty for the client school as the chief justice said i don't care about that i don't want  avoid the death penalty that's not my paramount goal my paramount goal is to insist till 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 which was his alibi so let's take justice kagan is hypothetical on its own terms 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 which which is much more like the defendant and you know what's politics all of that that we have a competent rational thoughtful individual who makes a calculated decision autonomously that that's the route he or she wishes to go  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 if he does how do the circumstances then he would probably win that did did thinking back i think the chief steward it was just as kennedy he quoted the language where he said i relieved you of your burden so he says i've relieved you of your burden he says to the jury and he also says and he's guilty that was earlier now in the context was that you're familiar with the record all right was that in fact an admission that he committed a crime namely first degree murder or second degree murder or both were are you saying no it was not that admission because if it was not that had mission then why didn't he tell the jury but you see he had a mental state that makes it impossible for you to convict be the specific words that he used the totality of his defense from start to finish was that he did not have the mens rea are necessary to support the death penalty the first degree charge and that was the gist of this is there's some creep in his arguments over time the words are there on the page but i would submit to you again that his argument and that that is a deficiency question under strickland that that is always argument has always been a question of deficiency under under strickland that's not a new proposition so i think that if we're we he still and i would say submit get 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 was not a court error this was a council decision and the court and the prosecutor went over bent over backwards to try and protect this record there was very little more that they could do to protect the record once trial had started once they were at the point where they were choosing a jury so so i think that it was a very very complicated situation and that when we get to that point th he has violated by justice ginsburg i think that the fifth amendment could be implicated in certain factual scenarios i think in this particular case what we saw were a repeated consistent sequence of way verse 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 court where the court continued to miranda read him his rights over and over and over again and 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 he certainly had a very difficult client you got a death penalty case we are very near the two days before trial and that's where we are suggesting you draw the line and treated as an ineffective assistance of counsel cla but not that it doesn't implicate other rights potentially depending on what happens thank you counsel three minutes  i'll never do this i'll try to make five points first just to score such 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 is not properly viewed as ineffective assistance of counsel just as in gonzalez lopez and in for red 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 says he insists on putting on an alibi defense is simply refuted by the record at page three ninety eight of the joint appendix this is during an argument in 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 this what 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 in 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 client telling the judge i do not want my lawyer admitting that i am guilty that structural error number two justice prior this was absolutely and admission of the char guilt on the charge crime at opening and it 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 understander louisiana law the jury the jury was required to be given the choice of the following choices which it was murder one murder to manslaughter and not guilty and there is no dispute in the record that murder one murder two and manslaughter all have exactly the same mens rea a defense as murder one that is not what's distinguishes those crimes as to the chronic as as we've 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 means the right to decide to test the prosecution on its burden of proof beyond a reasonable doubt thank you counsel the case is submitted