McCoy v. Louisiana

(Slip Opinion)              OCTOBER TERM, 2017                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

                          MCCOY v. LOUISIANA

      CERTIORARI TO THE SUPREME COURT OF LOUISIANA

    No. 16–8255.       Argued January 17, 2018—Decided May 14, 2018
Petitioner Robert McCoy was charged with murdering his estranged
  wife’s mother, stepfather, and son. McCoy pleaded not guilty to first-
  degree murder, insisting that he was out of State at the time of the
  killings and that corrupt police killed the victims when a drug deal
  went wrong. Although he vociferously insisted on his innocence and
  adamantly objected to any admission of guilt, the trial court permit-
  ted his counsel, Larry English, to tell the jury, during the trial’s guilt
  phase, McCoy “committed [the] three murders.” English’s strategy
  was to concede that McCoy committed the murders, but argue that
  McCoy’s mental state prevented him from forming the specific intent
  necessary for a first-degree murder conviction. Over McCoy’s repeat-
  ed objection, English told the jury McCoy was the killer and that
  English “took [the] burden off of [the prosecutor]” on that issue.
  McCoy testified in his own defense, maintaining his innocence and
  pressing an alibi difficult to fathom. The jury found him guilty of all
  three first-degree murder counts. At the penalty phase, English
  again conceded McCoy’s guilt, but urged mercy in view of McCoy’s
  mental and emotional issues. The jury returned three death verdicts.
  Represented by new counsel, McCoy unsuccessfully sought a new
  trial. The Louisiana Supreme Court affirmed the trial court’s
  ruling that English had authority to concede guilt, despite McCoy’s
  opposition.
Held: The Sixth Amendment guarantees a defendant the right to
  choose the objective of his defense and to insist that his counsel re-
  frain from admitting guilt, even when counsel’s experienced-based
  view is that confessing guilt offers the defendant the best chance to
  avoid the death penalty. Pp. 5–13.
     (a) The Sixth Amendment guarantees to each criminal defendant
  “the Assistance of Counsel for his defence.” The defendant does not
2                         MCCOY v. LOUISIANA

                                  Syllabus

    surrender control entirely to counsel, for the Sixth Amendment, in
    “grant[ing] to the accused personally the right to make his defense,”
    “speaks of the ‘assistance’ of counsel, and an assistant, however ex-
    pert, is still an assistant.” Faretta v. California, 422 U. S. 806, 819–
    820. The lawyer’s province is trial management, but some decisions
    are reserved for the client—including whether to plead guilty, waive
    the right to a jury trial, testify in one’s own behalf, and forgo an ap-
    peal. Autonomy to decide that the objective of the defense is to assert
    innocence belongs in this reserved-for-the-client category. Refusing
    to plead guilty in the face of overwhelming evidence against her, re-
    jecting the assistance of counsel, and insisting on maintaining her
    innocence at the guilt phase of a capital trial are not strategic choic-
    es; they are decisions about what the defendant’s objectives in fact
    are. See Weaver v. Massachusetts, 582 U. S. ___, ___. Counsel may
    reasonably assess a concession of guilt as best suited to avoiding the
    death penalty, as English did here. But the client may not share that
    objective. He may wish to avoid, above all else, the opprobrium at-
    tending admission that he killed family members, or he may hold life
    in prison not worth living and prefer to risk death for any hope, how-
    ever small, of exoneration. See Tr. of Oral Arg. 21–22. Thus, when a
    client makes it plain that the objective of “his defence” is to maintain
    innocence of the charged criminal acts and pursue an acquittal, his
    lawyer must abide by that objective and may not override it by con-
    ceding guilt. Pp. 5–8.
       (b) Florida v. Nixon, 543 U. S. 175, is not to the contrary. Nixon’s
    attorney did not negate Nixon’s autonomy by overriding Nixon’s de-
    sired defense objective, for Nixon “was generally unresponsive” dur-
    ing discussions of trial strategy and “never verbally approved or pro-
    tested” counsel’s proposed approach. Id., at 181. He complained
    about counsel’s admission of his guilt only after trial. Id., at 185.
    McCoy, in contrast, opposed English’s assertion of his guilt at every
    opportunity, before and during trial, both in conference with his law-
    yer and in open court. Citing Nix v. Whiteside, 475 U. S. 157, the
    Louisiana Supreme Court concluded that English’s refusal to main-
    tain McCoy’s innocence was necessitated by a Louisiana Rule of Pro-
    fessional Conduct that prohibits counsel from suborning perjury. But
    in Nix, the defendant told his lawyer that he intended to commit per-
    jury. Here, there was no avowed perjury. English harbored no doubt
    that McCoy believed what he was saying; English simply disbelieved
    that account in view of the prosecution’s evidence. Louisiana’s ethi-
    cal rules might have stopped English from presenting McCoy’s alibi
    evidence if English knew perjury was involved, but Louisiana has
    identified no ethical rule requiring English to admit McCoy’s guilt
    over McCoy’s objection. Pp. 8–11.
                      Cite as: 584 U. S. ____ (2018)                      3

                                 Syllabus

     (c) The Court’s ineffective-assistance-of-counsel jurisprudence, see
  Strickland v. Washington, 466 U. S. 668, does not apply here, where
  the client’s autonomy, not counsel’s competence, is in issue. To gain
  redress for attorney error, a defendant ordinarily must show preju-
  dice. See id., at 692. But here, the violation of McCoy’s protected au-
  tonomy right was complete when the court allowed counsel to usurp
  control of an issue within McCoy’s sole prerogative. Violation of a de-
  fendant’s Sixth Amendment-secured autonomy has been ranked
  “structural” error; when present, such an error is not subject to harm-
  less-error review. See, e.g., McKaskle v. Wiggins, 465 U. S. 168, 177,
  n. 8; United States v. Gonzalez-Lopez, 548 U. S. 140; Waller v. Geor-
  gia, 467 U. S. 39. An error is structural if it is not designed to protect
  defendants from erroneous conviction, but instead protects some oth-
  er interest, such as “the fundamental legal principle that a defendant
  must be allowed to make his own choices about the proper way to
  protect his own liberty.” Weaver, 582 U. S., at __ (citing Faretta, 422
  U. S., at 834). Counsel’s admission of a client’s guilt over the client’s
  express objection is error structural in kind, for it blocks the defend-
  ant’s right to make a fundamental choice about his own defense. See
  Weaver, 582 U. S., at ___. McCoy must therefore be accorded a new
  trial without any need first to show prejudice. Pp. 11–12.
2014–1449 (La. 10/19/16), 218 So. 3d 535, reversed and remanded.

  GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
ALITO, J., filed a dissenting opinion, in which THOMAS and GORSUCH,
JJ., joined.
                        Cite as: 584 U. S. ____ (2018)                               1

                              Opinion of the Court

      NOTICE: This opinion is subject to formal revision before publication in the
     preliminary print of the United States Reports. Readers are requested to
     notify the Reporter of Decisions, Supreme Court of the United States, Wash-
     ington, D. C. 20543, of any typographical or other formal errors, in order
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SUPREME COURT OF THE UNITED STATES
                                   _________________

                                   No. 16–8255
                                   _________________


ROBERT LEROY MCCOY, PETITIONER v. LOUISIANA
    ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 

                      LOUISIANA

                                 [May 14, 2018] 


  JUSTICE GINSBURG delivered the opinion of the Court.
  In Florida v. Nixon, 543 U. S. 175 (2004), this Court
considered whether the Constitution bars defense counsel
from conceding a capital defendant’s guilt at trial “when
[the] defendant, informed by counsel, neither consents nor
objects,” id., at 178. In that case, defense counsel had
several times explained to the defendant a proposed guilt-
phase concession strategy, but the defendant was unre-
sponsive. Id., at 186. We held that when counsel confers
with the defendant and the defendant remains silent,
neither approving nor protesting counsel’s proposed con-
cession strategy, id., at 181, “[no] blanket rule demand[s]
the defendant’s explicit consent” to implementation of that
strategy, id., at 192.
  In the case now before us, in contrast to Nixon, the
defendant vociferously insisted that he did not engage in
the charged acts and adamantly objected to any admission
of guilt. App. 286–287, 505–506. Yet the trial court per-
mitted counsel, at the guilt phase of a capital trial, to tell
the jury the defendant “committed three murders. . . .
[H]e’s guilty.” Id., at 509, 510. We hold that a defendant
has the right to insist that counsel refrain from admitting
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                     Opinion of the Court

guilt, even when counsel’s experienced-based view is that
confessing guilt offers the defendant the best chance to
avoid the death penalty. Guaranteeing a defendant the
right “to have the Assistance of Counsel for his defence,”
the Sixth Amendment so demands. With individual lib-
erty—and, in capital cases, life—at stake, it is the defend-
ant’s prerogative, not counsel’s, to decide on the objective
of his defense: to admit guilt in the hope of gaining mercy
at the sentencing stage, or to maintain his innocence,
leaving it to the State to prove his guilt beyond a reason-
able doubt.
                             I
  On May 5, 2008, Christine and Willie Young and Grego-
ry Colston were shot and killed in the Youngs’ home in
Bossier City, Louisiana. The three victims were the mother,
stepfather, and son of Robert McCoy’s estranged wife,
Yolanda. Several days later, police arrested McCoy in
Idaho. Extradited to Louisiana, McCoy was appointed
counsel from the public defender’s office. A Bossier Parish
grand jury indicted McCoy on three counts of first-degree
murder, and the prosecutor gave notice of intent to seek
the death penalty. McCoy pleaded not guilty. Throughout
the proceedings, he insistently maintained he was out of
State at the time of the killings and that corrupt police
killed the victims when a drug deal went wrong. App.
284–286. At defense counsel’s request, a court-appointed
sanity commission examined McCoy and found him com-
petent to stand trial.
  In December 2009 and January 2010, McCoy told the
court his relationship with assigned counsel had broken
down irretrievably. He sought and gained leave to repre-
sent himself until his parents engaged new counsel for
him. In March 2010, Larry English, engaged by McCoy’s
parents, enrolled as McCoy’s counsel. English eventually
concluded that the evidence against McCoy was over-
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                         Opinion of the Court

whelming and that, absent a concession at the guilt stage
that McCoy was the killer, a death sentence would be
impossible to avoid at the penalty phase.1 McCoy, English
reported, was “furious” when told, two weeks before trial
was scheduled to begin, that English would concede
McCoy’s commission of the triple murders. Id., at 286.2
McCoy told English “not to make that concession,” and
English knew of McCoy’s “complet[e] oppos[ition] to [Eng-
lish] telling the jury that [McCoy] was guilty of killing the
three victims”; instead of any concession, McCoy pressed
English to pursue acquittal. Id., at 286–287.
   At a July 26, 2011 hearing, McCoy sought to terminate
English’s representation, id., at 449, and English asked to
be relieved if McCoy secured other counsel, id., at 458.
With trial set to start two days later, the court refused to
relieve English and directed that he remain as counsel of
record. Id., at 461. “[Y]ou are the attorney,” the court told
English when he expressed disagreement with McCoy’s
wish to put on a defense case, and “you have to make the
trial decision of what you’re going to proceed with.” Id.,
at 469.
——————
  1 Part of English’s strategy was to concede that McCoy committed the

murders and to argue that he should be convicted only of second-degree
murder, because his “mental incapacity prevented him from forming
the requisite specific intent to commit first degree murder.” 2014–1449
(La. 10/19/16), 218 So. 3d 535, 570. But the second-degree strategy
would have encountered a shoal, for Louisiana does not permit intro-
duction of evidence of a defendant’s diminished capacity absent the
entry of a plea of not guilty by reason of insanity. Ibid., and n. 35.
  2 The dissent states that English told McCoy his proposed trial strat-

egy eight months before trial. Post, at 3. English did encourage
McCoy, “[a] couple of months before the trial,” to plead guilty rather
than proceed to trial. App. 66–67. But English declared under oath
that “the first time [he] told [McCoy] that [he] intended to concede to
the jury that [McCoy] was the killer” was July 12, 2011, two weeks
before trial commenced. Id., at 286. Encouraging a guilty plea pretrial,
of course, is not equivalent to imparting to a defendant counsel’s
strategic determination to concede guilt should trial occur.
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                     Opinion of the Court

   At the beginning of his opening statement at the guilt
phase of the trial, English told the jury there was “no way
reasonably possible” that they could hear the prosecution’s
evidence and reach “any other conclusion than Robert
McCoy was the cause of these individuals’ death.” Id., at
504. McCoy protested; out of earshot of the jury, McCoy
told the court that English was “selling [him] out” by
maintaining that McCoy “murdered [his] family.” Id., at
505–506. The trial court reiterated that English was
“representing” McCoy and told McCoy that the court
would not permit “any other outbursts.” Id., at 506.
Continuing his opening statement, English told the jury
the evidence is “unambiguous,” “my client committed
three murders.” Id., at 509. McCoy testified in his own
defense, maintaining his innocence and pressing an alibi
difficult to fathom. In his closing argument, English
reiterated that McCoy was the killer. On that issue,
English told the jury that he “took [the] burden off of [the
prosecutor].” Id., at 647. The jury then returned a unan-
imous verdict of guilty of first-degree murder on all three
counts. At the penalty phase, English again conceded
“Robert McCoy committed these crimes,” id., at 751, but
urged mercy in view of McCoy’s “serious mental and emo-
tional issues,” id., at 755. The jury returned three death
verdicts.
   Represented by new counsel, McCoy unsuccessfully
moved for a new trial, arguing that the trial court violated
his constitutional rights by allowing English to concede
McCoy “committed three murders,” id., at 509, over
McCoy’s objection. The Louisiana Supreme Court af-
firmed the trial court’s ruling that defense counsel had
authority so to concede guilt, despite the defendant’s
opposition to any admission of guilt. See 2014–1449 (La.
10/19/16), 218 So. 3d 535. The concession was permissible,
the court concluded, because counsel reasonably believed
that admitting guilt afforded McCoy the best chance to
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                     Opinion of the Court

avoid a death sentence.
   We granted certiorari in view of a division of opinion
among state courts of last resort on the question whether
it is unconstitutional to allow defense counsel to concede
guilt over the defendant’s intransigent and unambiguous
objection. 582 U. S. ___ (2017). Compare with the instant
case, e.g., Cooke v. State, 977 A. 2d 803, 842–846 (Del.
2009) (counsel’s pursuit of a “guilty but mentally ill” ver-
dict over defendant’s “vociferous and repeated protesta-
tions” of innocence violated defendant’s “constitutional
right to make the fundamental decisions regarding his
case”); State v. Carter, 270 Kan. 426, 440, 14 P. 3d 1138,
1148 (2000) (counsel’s admission of client’s involvement in
murder when client adamantly maintained his innocence
contravened Sixth Amendment right to counsel and due
process right to a fair trial).
                             II

                             A

  The Sixth Amendment guarantees to each criminal
defendant “the Assistance of Counsel for his defence.” At
common law, self-representation was the norm. See Fa-
retta v. California, 422 U. S. 806, 823 (1975) (citing 1 F.
Pollock & F. Maitland, The History of English Law 211 (2d
ed. 1909)). As the laws of England and the American
Colonies developed, providing for a right to counsel in
criminal cases, self-representation remained common and
the right to proceed without counsel was recognized.
Faretta, 422 U. S., at 824–828. Even now, when most
defendants choose to be represented by counsel, see, e.g.,
Goldschmidt & Stemen, Patterns and Trends in Federal
Pro Se Defense, 1996–2011: An Exploratory Study, 8 Fed.
Cts. L. Rev. 81, 91 (2015) (0.2% of federal felony defend-
ants proceeded pro se), an accused may insist upon repre-
senting herself—however counterproductive that course
may be, see Faretta, 422 U. S., at 834. As this Court
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                      Opinion of the Court

explained, “[t]he right to defend is personal,” and a de-
fendant’s choice in exercising that right “must be honored
out of ‘that respect for the individual which is the lifeblood
of the law.’ ” Ibid. (quoting Illinois v. Allen, 397 U. S. 337,
350–351 (1970) (Brennan, J., concurring)); see McKaskle v.
Wiggins, 465 U. S. 168, 176–177 (1984) (“The right to
appear pro se exists to affirm the dignity and autonomy of
the accused.”).
   The choice is not all or nothing: To gain assistance, a
defendant need not surrender control entirely to counsel.
For the Sixth Amendment, in “grant[ing] to the accused
personally the right to make his defense,” “speaks of the
‘assistance’ of counsel, and an assistant, however expert, is
still an assistant.” Faretta, 422 U. S., at 819–820; see
Gannett Co. v. DePasquale, 443 U. S. 368, 382, n. 10
(1979) (the Sixth Amendment “contemplat[es] a norm in
which the accused, and not a lawyer, is master of his own
defense”). Trial management is the lawyer’s province:
Counsel provides his or her assistance by making deci-
sions such as “what arguments to pursue, what eviden-
tiary objections to raise, and what agreements to conclude
regarding the admission of evidence.” Gonzalez v. United
States, 553 U. S. 242, 248 (2008) (internal quotation
marks and citations omitted). Some decisions, however,
are reserved for the client—notably, whether to plead
guilty, waive the right to a jury trial, testify in one’s own
behalf, and forgo an appeal. See Jones v. Barnes, 463
U. S. 745, 751 (1983).
   Autonomy to decide that the objective of the defense is
to assert innocence belongs in this latter category. Just as
a defendant may steadfastly refuse to plead guilty in the
face of overwhelming evidence against her, or reject the
assistance of legal counsel despite the defendant’s own
inexperience and lack of professional qualifications, so
may she insist on maintaining her innocence at the guilt
phase of a capital trial. These are not strategic choices
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                      Opinion of the Court

about how best to achieve a client’s objectives; they are
choices about what the client’s objectives in fact are. See
Weaver v. Massachusetts, 582 U. S. ___, ___ (2017) (slip
op., at 6) (2017) (self-representation will often increase the
likelihood of an unfavorable outcome but “is based on the
fundamental legal principle that a defendant must be
allowed to make his own choices about the proper way to
protect his own liberty”); Martinez v. Court of Appeal of
Cal., Fourth Appellate Dist., 528 U. S. 152, 165 (2000)
(Scalia, J., concurring in judgment) (“Our system of laws
generally presumes that the criminal defendant, after
being fully informed, knows his own best interests and
does not need them dictated by the State.”).
   Counsel may reasonably assess a concession of guilt as
best suited to avoiding the death penalty, as English did
in this case. But the client may not share that objective.
He may wish to avoid, above all else, the opprobrium that
comes with admitting he killed family members. Or he
may hold life in prison not worth living and prefer to risk
death for any hope, however small, of exoneration. See Tr.
of Oral Arg. 21–22 (it is for the defendant to make the
value judgment whether “to take a minuscule chance of
not being convicted and spending a life in . . . prison”);
Hashimoto, Resurrecting Autonomy: The Criminal De-
fendant’s Right to Control the Case, 90 B. U. L. Rev. 1147,
1178 (2010) (for some defendants, “the possibility of an
acquittal, even if remote, may be more valuable than the
difference between a life and a death sentence”); cf. Jae
Lee v. United States, 582 U. S. ___, ___ (2017) (slip op., at
12) (recognizing that a defendant might reject a plea and
prefer “taking a chance at trial” despite “[a]lmost cer-
tai[n]” conviction (emphasis deleted)). When a client
expressly asserts that the objective of “his defence” is to
maintain innocence of the charged criminal acts, his law-
yer must abide by that objective and may not override it
by conceding guilt. U. S. Const., Amdt. 6 (emphasis add-
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                        Opinion of the Court

ed); see ABA Model Rule of Professional Conduct 1.2(a)
(2016) (a “lawyer shall abide by a client’s decisions con-
cerning the objectives of the representation”).
   Preserving for the defendant the ability to decide
whether to maintain his innocence should not displace
counsel’s, or the court’s, respective trial management
roles. See Gonzalez, 553 U. S., at 249 (“[n]umerous choices
affecting conduct of the trial” do not require client consent,
including “the objections to make, the witnesses to call,
and the arguments to advance”); cf. post, at 8–9. Counsel,
in any case, must still develop a trial strategy and discuss
it with her client, see Nixon, 543 U. S., at 178, explaining
why, in her view, conceding guilt would be the best option.
In this case, the court had determined that McCoy was
competent to stand trial, i.e., that McCoy had “sufficient
present ability to consult with his lawyer with a reason-
able degree of rational understanding.” Godinez v. Moran,
509 U. S. 389, 396 (1993) (quoting Dusky v. United States,
362 U. S. 402 (1960) (per curiam)).3 If, after consultations
with English concerning the management of the defense,
McCoy disagreed with English’s proposal to concede
McCoy committed three murders, it was not open to Eng-
lish to override McCoy’s objection. English could not
interfere with McCoy’s telling the jury “I was not the
murderer,” although counsel could, if consistent with
providing effective assistance, focus his own collaboration
on urging that McCoy’s mental state weighed against
conviction. See Tr. of Oral Arg. 21–23.
                             B
  Florida v. Nixon, see supra, at 1–2, is not to the con-
trary. Nixon’s attorney did not negate Nixon’s autonomy by
overriding Nixon’s desired defense objective, for Nixon

——————
  3 Several times, English did express his view that McCoy was not, in

fact, competent to stand trial. See App. 388, 436.
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                      Opinion of the Court

never asserted any such objective. Nixon “was generally
unresponsive” during discussions of trial strategy, and
“never verbally approved or protested” counsel’s proposed
approach. 543 U. S., at 181. Nixon complained about the
admission of his guilt only after trial. Id., at 185. McCoy,
in contrast, opposed English’s assertion of his guilt at
every opportunity, before and during trial, both in confer-
ence with his lawyer and in open court. See App. 286–287,
456, 505–506. See also Cooke, 977 A. 2d, at 847 (distin-
guishing Nixon because, “[i]n stark contrast to the defend-
ant’s silence in that case, Cooke repeatedly objected to his
counsel’s objective of obtaining a verdict of guilty but
mentally ill, and asserted his factual innocence consistent
with his plea of not guilty”). If a client declines to partici-
pate in his defense, then an attorney may permissibly
guide the defense pursuant to the strategy she believes to
be in the defendant’s best interest. Presented with ex-
press statements of the client’s will to maintain innocence,
however, counsel may not steer the ship the other way.
See Gonzalez, 553 U. S., at 254 (Scalia, J., concurring in
judgment) (“[A]ction taken by counsel over his client’s
objection . . . ha[s] the effect of revoking [counsel’s] agency
with respect to the action in question.”).
   The Louisiana Supreme Court concluded that English’s
refusal to maintain McCoy’s innocence was necessitated
by Louisiana Rule of Professional Conduct 1.2(d) (2017),
which provides that “[a] lawyer shall not counsel a client
to engage, or assist a client, in conduct that the lawyer
knows is criminal or fraudulent.” 218 So. 3d, at 564.
Presenting McCoy’s alibi defense, the court said, would
put English in an “ethical conundrum,” implicating Eng-
lish in perjury. Id., at 565 (citing Nix v. Whiteside, 475
U. S. 157, 173–176 (1986)). But McCoy’s case does not
resemble Nix, where the defendant told his lawyer that he
intended to commit perjury. There was no such avowed
perjury here. Cf. ABA Model Rule of Professional Conduct
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                      Opinion of the Court

3.3, Comment 8 (“The prohibition against offering false
evidence only applies if the lawyer knows that the evi-
dence is false.”). English harbored no doubt that McCoy
believed what he was saying, see App. 285–286; English
simply disbelieved McCoy’s account in view of the prosecu-
tion’s evidence. English’s express motivation for conceding
guilt was not to avoid suborning perjury, but to try to
build credibility with the jury, and thus obtain a sentence
lesser than death. Id., at 287. Louisiana’s ethical rules
might have stopped English from presenting McCoy’s alibi
evidence if English knew perjury was involved. But Loui-
siana has identified no ethical rule requiring English to
admit McCoy’s guilt over McCoy’s objection. See 3 W.
LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure
§11.6(c), p. 935 (4th ed. 2015) (“A lawyer is not placed in a
professionally embarrassing position when he is reluc-
tantly required . . . to go to trial in a weak case, since that
decision is clearly attributed to his client.”).
   The dissent describes the conflict between English and
McCoy as “rare” and “unlikely to recur.” Post, at 2, 5–7,
and n. 2. Yet the Louisiana Supreme Court parted ways
with three other State Supreme Courts that have ad-
dressed this conflict in the past twenty years. People v.
Bergerud, 223 P. 3d 686, 691 (Colo. 2010) (“Although
defense counsel is free to develop defense theories based
on reasonable assessments of the evidence, as guided by
her professional judgment, she cannot usurp those funda-
mental choices given directly to criminal defendants by
the United States and the Colorado Constitutions.”);
Cooke, 977 A. 2d 803 (Del. 2009); Carter, 270 Kan. 426, 14
P. 3d 1138 (2000). In each of the three cases, as here, the
defendant repeatedly and adamantly insisted on main-
taining his factual innocence despite counsel’s preferred
course: concession of the defendant’s commission of crimi-
nal acts and pursuit of diminished capacity, mental ill-
ness, or lack of premeditation defenses. See Bergerud, 223
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                     Opinion of the Court

P. 3d, at 690–691; Cooke, 977 A. 2d, at 814; Carter, 270
Kan., at 429, 14 P. 3d, at 1141. These were not strategic
disputes about whether to concede an element of a charged
offense, cf. post, at 8; they were intractable disagreements
about the fundamental objective of the defendant’s repre-
sentation. For McCoy, that objective was to maintain “I
did not kill the members of my family.” Tr. of Oral Arg.
26. In this stark scenario, we agree with the majority of
state courts of last resort that counsel may not admit her
client’s guilt of a charged crime over the client’s intransi-
gent objection to that admission.
                             III
   Because a client’s autonomy, not counsel’s competence,
is in issue, we do not apply our ineffective-assistance-of-
counsel jurisprudence, Strickland v. Washington, 466
U. S. 668 (1984), or United States v. Cronic, 466 U. S. 648
(1984), to McCoy’s claim. See Brief for Petitioner 43–48;
Brief for Respondent 46–52. To gain redress for attorney
error, a defendant ordinarily must show prejudice. See
Strickland, 466 U. S., at 692. Here, however, the violation
of McCoy’s protected autonomy right was complete when
the court allowed counsel to usurp control of an issue
within McCoy’s sole prerogative.
   Violation of a defendant’s Sixth Amendment-secured
autonomy ranks as error of the kind our decisions have
called “structural”; when present, such an error is not
subject to harmless-error review. See, e.g., McKaskle, 465
U. S., at 177, n. 8 (harmless-error analysis is inapplicable
to deprivations of the self-representation right, because
“[t]he right is either respected or denied; its deprivation
cannot be harmless”); United States v. Gonzalez-Lopez,
548 U. S. 140, 150 (2006) (choice of counsel is structural);
Waller v. Georgia, 467 U. S. 39, 49–50 (1984) (public trial
is structural). Structural error “affect[s] the framework
within which the trial proceeds,” as distinguished from a
12                      MCCOY v. LOUISIANA

                         Opinion of the Court

lapse or flaw that is “simply an error in the trial process
itself.” Arizona v. Fulminante, 499 U. S. 279, 310 (1991).
An error may be ranked structural, we have explained, “if
the right at issue is not designed to protect the defendant
from erroneous conviction but instead protects some other
interest,” such as “the fundamental legal principle that a
defendant must be allowed to make his own choices about
the proper way to protect his own liberty.” Weaver, 582
U. S., at ___ (slip op., at 6) (citing Faretta, 422 U. S., at
834). An error might also count as structural when its
effects are too hard to measure, as is true of the right to
counsel of choice, or where the error will inevitably signal
fundamental unfairness, as we have said of a judge’s
failure to tell the jury that it may not convict unless it
finds the defendant’s guilt beyond a reasonable doubt. 582
U. S., at ___–___ (slip op., at 6–7) (citing Gonzalez-Lopez,
548 U. S., at 149, n. 4, and Sullivan v. Louisiana, 508
U. S. 275, 279 (1993)).
   Under at least the first two rationales, counsel’s admis-
sion of a client’s guilt over the client’s express objection is
error structural in kind. See Cooke, 977 A. 2d, at 849
(“Counsel’s override negated Cooke’s decisions regarding
his constitutional rights, and created a structural defect in
the proceedings as a whole.”). Such an admission blocks
the defendant’s right to make the fundamental choices
about his own defense. And the effects of the admission
would be immeasurable, because a jury would almost
certainly be swayed by a lawyer’s concession of his client’s
guilt. McCoy must therefore be accorded a new trial with-
out any need first to show prejudice.4
——————
  4 The dissent suggests that a remand would be in order, so that the

Louisiana Supreme Court, in the first instance, could consider the
structural-error question. See post, at 10–11. “[W]e did not grant
certiorari to review” that question. Post, at 10. But McCoy raised his
structural-error argument in his opening brief, see Brief for Petitioner
38–43, and Louisiana explicitly chose not to grapple with it, see Brief
                     Cite as: 584 U. S. ____ (2018) 
                  13

                          Opinion of the Court 


                         *     *    * 

   Larry English was placed in a difficult position; he had
an unruly client and faced a strong government case. He
reasonably thought the objective of his representation
should be avoidance of the death penalty. But McCoy
insistently maintained: “I did not murder my family.”
App. 506. Once he communicated that to court and coun-
sel, strenuously objecting to English’s proposed strategy, a
concession of guilt should have been off the table. The
trial court’s allowance of English’s admission of McCoy’s
guilt despite McCoy’s insistent objections was incompati-
ble with the Sixth Amendment. Because the error was
structural, a new trial is the required corrective.
   For the reasons stated, the judgment of the Louisiana
Supreme Court is reversed, and the case is remanded for
further proceedings not inconsistent with this opinion.

                                                        It is so ordered.




—————— 

for Respondent 45, n. 5. In any event, “we have the authority to make

our own assessment of the harmlessness of a constitutional error in the 

first instance.” Yates v. Evatt, 500 U. S. 391, 407 (1991) (citing Rose v.

Clark, 478 U. S. 570, 584 (1986)). 

                      Cite as: 584 U. S. ____ (2018)                       1

                           ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
                               _________________

                               No. 16–8255
                               _________________


ROBERT LEROY MCCOY, PETITIONER v. LOUISIANA
     ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

                       LOUISIANA

                              [May 14, 2018]


   JUSTICE ALITO, with whom JUSTICE THOMAS and
JUSTICE GORSUCH join, dissenting.
   The Constitution gives us the authority to decide real
cases and controversies; we do not have the right to sim-
plify or otherwise change the facts of a case in order to
make our work easier or to achieve a desired result. But
that is exactly what the Court does in this case. The
Court overturns petitioner’s convictions for three counts of
first-degree murder by attributing to his trial attorney,
Larry English, something that English never did. The
Court holds that English violated petitioner’s constitu-
tional rights by “admit[ting] h[is] client’s guilt of a charged
crime over the client’s intransigent objection.” Ante, at
11. 1 But English did not admit that petitioner was guilty
——————
   1 When the Court expressly states its holding, it refers to a concession

of guilt. See ante, at 1–2 (“We hold that a defendant has the right to
insist that counsel refrain from admitting guilt, even when counsel’s
experienced-based view is that confessing guilt offers the defendant the
best chance to avoid the death penalty”); ante, at 11 (“counsel may not
admit her client’s guilt of a charged crime over the client’s intransigent
objection to that admission”). The opinion also contains many other
references to the confession or admission of guilt. See, e.g., ante, at 2
(“confessing guilt”; “admit guilt”); ante, at 4 (“admitting guilt”); ante, at
5 (“concede guilt”); ante, at 6 (“maintaining her innocence at the guilt
phase”); ante, at 7 (“concession of guilt”); ante, at 8 (“conceding guilt”);
ante, at 9 (“assertion of his guilt”); ante, at 10 (“conceding guilt”; “admit
McCoy’s guilt”); ante, at 13 (“concession of guilt”; “admission of McCoy’s
2                      MCCOY v. LOUISIANA

                         ALITO, J., dissenting

of first-degree murder. Instead, faced with overwhelming
evidence that petitioner shot and killed the three victims,
English admitted that petitioner committed one element of
that offense, i.e., that he killed the victims. But English
strenuously argued that petitioner was not guilty of first-
degree murder because he lacked the intent (the mens rea)
required for the offense. App. 508–512. So the Court’s
newly discovered fundamental right simply does not apply
to the real facts of this case.
                              I
   The real case is far more complex. Indeed, the real
situation English faced at the beginning of petitioner’s
trial was the result of a freakish confluence of factors that
is unlikely to recur.
   Retained by petitioner’s family, English found himself in
a predicament as the trial date approached. The evidence
against his client was truly “overwhelming,” as the Loui-
siana Supreme Court aptly noted.            2014–1449 (La.
10/19/16), 218 So. 3d 535, 565 (2016). Among other things,
the evidence showed the following. Before the killings
took place, petitioner had abused and threatened to kill
his wife, and she was therefore under police protection.
On the night of the killings, petitioner’s mother-in-law
made a 911 call and was heard screaming petitioner’s first
name. She yelled: “ ‘She ain’t here, Robert . . . I don’t know
where she is. The detectives have her. Talk to the detec-
tives. She ain’t in there, Robert.’ ” Id., at 542. Moments
later, a gunshot was heard, and the 911 call was
——————
guilt”).
  At a few points, however, the Court refers to the admission of crimi-
nal “acts.” Ante, at 1, 7, 10. A rule that a defense attorney may not
admit the actus reus of an offense (or perhaps even any element of the
actus reus) would be very different from the rule that the Court ex-
pressly adopts. I discuss some of the implications of such a broad rule
in Part III of this opinion.
                  Cite as: 584 U. S. ____ (2018)            3

                      ALITO, J., dissenting

disconnected.
   Officers were dispatched to the scene, and on arrival,
they found three dead or dying victims—petitioner’s mother-
in-law, her husband, and the teenage son of petitioner’s
wife. The officers saw a man who fit petitioner’s descrip-
tion fleeing in petitioner’s car. They chased the suspect,
but he abandoned the car along with critical evidence
linking him to the crime: the cordless phone petitioner’s
mother-in-law had used to call 911 and a receipt for the
type of ammunition used to kill the victims. Petitioner
was eventually arrested while hitchhiking in Idaho, and a
loaded gun found in his possession was identified as the
one used to shoot the victims. In addition to all this, a
witness testified that petitioner had asked to borrow
money to purchase bullets shortly before the shootings,
and surveillance footage showed petitioner purchasing the
ammunition on the day of the killings. And two of peti-
tioner’s friends testified that he confessed to killing at
least one person.
   Despite all this evidence, petitioner, who had been found
competent to stand trial and had refused to plead guilty by
reason of insanity, insisted that he did not kill the victims.
He claimed that the victims were killed by the local police
and that he had been framed by a farflung conspiracy of
state and federal officials, reaching from Louisiana to
Idaho. Petitioner believed that even his attorney and the
trial judge had joined the plot. App. 509.
   Unwilling to go along with this incredible and uncorrob-
orated defense, English told petitioner “some eight
months” before trial that the only viable strategy was to
admit the killings and to concentrate on attempting to
avoid a sentence of death. 218 So. 3d, at 558. At that
point—aware of English’s strong views—petitioner could
have discharged English and sought new counsel willing
to pursue his conspiracy defense; under the Sixth
Amendment, that was his right. See United States v.
4                   MCCOY v. LOUISIANA

                     ALITO, J., dissenting

Gonzalez-Lopez, 548 U. S. 140, 144 (2006). But petitioner
stated “several different times” that he was “confident
with Mr. English.” App. 411, 437.
   The weekend before trial, however, petitioner changed
his mind. He asked the trial court to replace English, and
English asked for permission to withdraw. Petitioner
stated that he had secured substitute counsel, but he was
unable to provide the name of this new counsel, and no
new attorney ever appeared. The court refused these
requests and also denied petitioner’s last-minute request
to represent himself. (Petitioner does not challenge these
decisions here.) So petitioner and English were stuck with
each other, and petitioner availed himself of his right to
take the stand to tell his wild story. Under those circum-
stances, what was English supposed to do?
   The Louisiana Supreme Court held that English could
not have put on petitioner’s desired defense without violat-
ing state ethics rules, see 218 So. 3d, at 564–565, but this
Court effectively overrules the state court on this issue of
state law, ante, at 9–10. However, even if it is assumed
that the Court is correct on this ethics issue, the result of
mounting petitioner’s conspiracy defense almost certainly
would have been disastrous. That approach stood no
chance of winning an acquittal and would have severely
damaged English’s credibility in the eyes of the jury, thus
undermining his ability to argue effectively against the
imposition of a death sentence at the penalty phase of the
trial. As English observed, taking that path would have
only “help[ed] the District Attorney send [petitioner] to the
death chamber.” App. 396. (In Florida v. Nixon, 543 U. S.
175, 191–192 (2004), this Court made essentially the same
point.) So, again, what was English supposed to do?
   When pressed at oral argument before this Court, peti-
tioner’s current counsel eventually provided an answer:
English was not required to take any affirmative steps to
support petitioner’s bizarre defense, but instead of conced-
                 Cite as: 584 U. S. ____ (2018)            5

                     ALITO, J., dissenting

ing that petitioner shot the victims, English should have
ignored that element entirely. Tr. of Oral Arg. 21–23. So
the fundamental right supposedly violated in this case
comes down to the difference between the two statements
set out below.
    Constitutional: “First-degree murder requires proof
    both that the accused killed the victim and that he
    acted with the intent to kill. I submit to you that my
    client did not have the intent required for conviction
    for that offense.”
    Unconstitutional: “First-degree murder requires proof
    both that the accused killed the victim and that he
    acted with the intent to kill. I admit that my client
    shot and killed the victims, but I submit to you that
    he did not have the intent required for conviction for
    that offense.”
  The practical difference between these two statements is
negligible. If English had conspicuously refrained from
endorsing petitioner’s story and had based his defense
solely on petitioner’s dubious mental condition, the jury
would surely have gotten the message that English was
essentially conceding that petitioner killed the victims.
But according to petitioner’s current attorney, the differ-
ence is fundamental. The first formulation, he admits, is
perfectly fine. The latter, on the other hand, is a violation
so egregious that the defendant’s conviction must be re-
versed even if there is no chance that the misstep caused
any harm. It is no wonder that the Court declines to
embrace this argument and instead turns to an issue that
the case at hand does not actually present.
                             II
  The constitutional right that the Court has now discov-
ered—a criminal defendant’s right to insist that his attor-
ney contest his guilt with respect to all charged offenses—
6                       MCCOY v. LOUISIANA

                         ALITO, J., dissenting

is like a rare plant that blooms every decade or so. Having
made its first appearance today, the right is unlikely to
figure in another case for many years to come. Why is
this so?
   First, it is hard to see how the right could come into play
in any case other than a capital case in which the jury
must decide both guilt and punishment. In all other cases,
guilt is almost always the only issue for the jury, and
therefore admitting guilt of all charged offenses will
achieve nothing. It is hard to imagine a situation in which
a competent attorney might take that approach. So the
right that the Court has discovered is effectively confined
to capital cases.
   Second, few rational defendants facing a possible death
sentence are likely to insist on contesting guilt where
there is no real chance of acquittal and where admitting
guilt may improve the chances of avoiding execution.
Indeed, under such circumstances, the odds are that a
rational defendant will plead guilty in exchange for a life
sentence. By the same token, an attorney is unlikely to
insist on admitting guilt over the defendant’s objection
unless the attorney believes that contesting guilt would be
futile. So the right is most likely to arise in cases involv-
ing irrational capital defendants. 2
   Third, where a capital defendant and his retained attor-
ney cannot agree on a basic trial strategy, the attorney
and client will generally part ways unless, as in this case,
the court is not apprised until the eve of trial. The client
will then either search for another attorney or decide to
represent himself. So the field of cases in which this right
——————
  2 The Court imagines cases in which a rational defendant prefers

even a minuscule chance of acquittal over either the social opprobrium
that would result from an admission of guilt or the sentence of impris-
onment that would be imposed upon conviction. Ante, at 7. Such cases
are likely to be rare, and in any event, as explained below, the defend-
ant will almost always be able to get his way if he acts in time.
                     Cite as: 584 U. S. ____ (2018)                    7

                          ALITO, J., dissenting

might arise is limited further still—to cases involving
irrational capital defendants who disagree with their
attorneys’ proposed strategy yet continue to retain them.
   Fourth, if counsel is appointed, and unreasonably insists
on admitting guilt over the defendant’s objection, a capa-
ble trial judge will almost certainly grant a timely request
to appoint substitute counsel. And if such a request is
denied, the ruling may be vulnerable on appeal.
   Finally, even if all the above conditions are met, the
right that the Court now discovers will not come into play
unless the defendant expressly protests counsel’s strategy
of admitting guilt. Where the defendant is advised of the
strategy and says nothing, or is equivocal, the right is
deemed to have been waived. See Nixon, 543 U. S., at 192.
   In short, the right that the Court now discovers is likely
to appear only rarely, 3 and because the present case is so
unique, it is hard to see how it meets our stated criteria
for granting review. See this Court’s Rules 10(b)–(c).
Review would at least be understandable if the strategy
that English pursued had worked an injustice, but the
Court does not make that claim—and with good reason.
Endorsing petitioner’s bizarre defense would have been
extraordinarily unwise, and dancing the fine line recom-
mended by petitioner’s current attorney would have done
——————
  3 The Court responds that three State Supreme Courts have “ad-

dressed this conflict in the past twenty years.” Ante, at 10. Even if
true, that would hardly be much of a rebuttal. Moreover, two of the
three decisions were not based on the right that the Court discovers
and applies here, i.e., “the right to insist that counsel refrain from
admitting guilt.” Ante, at 1–2. In People v. Bergerud, 223 P. 3d 686
(Colo. 2010), the court found that defense counsel did not admit guilt,
and the court’s decision (which did not award a new trial) was based on
other grounds. Id., at 692, 700, 707. In State v. Carter, 270 Kan. 426,
14 P. 3d 1138 (2000), defense counsel did not admit his client’s guilt on
all charges. Instead, he contested the charge of first-degree murder but
effectively admitted the elements of a lesser homicide offense. Id., at
431–433, 14 P. 3d, at 1143.
8                    MCCOY v. LOUISIANA

                      ALITO, J., dissenting

no good. It would have had no effect on the outcome of the
trial, and it is hard to see how that approach would have
respected petitioner’s “autonomy,” ante, at 6, 7, 8, 11, any
more than the more straightforward approach that Eng-
lish took. If petitioner is retried, it will be interesting to
see what petitioner’s current counsel or any other attorney
to whom the case is handed off will do. It is a safe bet that
no attorney will put on petitioner’s conspiracy defense.
                               III
   While the question that the Court decides is unlikely to
make another appearance for quite some time, a related—
and difficult—question may arise more frequently: When
guilt is the sole issue for the jury, is it ever permissible for
counsel to make the unilateral decision to concede an
element of the offense charged? If today’s decision were
understood to address that question, it would have im-
portant implications.
   Under current precedent, there are some decisions on
which a criminal defendant has the final say. For exam-
ple, a defendant cannot be forced to enter a plea against
his wishes. See Brookhart v. Janis, 384 U. S. 1, 5–7
(1966). Similarly, no matter what counsel thinks best, a
defendant has the right to insist on a jury trial and to take
the stand and testify in his own defense. See Harris v.
New York, 401 U. S. 222, 225 (1971). And if, as in this
case, a defendant and retained counsel do not see eye to
eye, the client can always attempt to find another attorney
who will accede to his wishes. See Gonzalez-Lopez, 548
U. S., at 144. A defendant can also choose to dispense
with counsel entirely and represent himself. See Faretta
v. California, 422 U. S. 806, 819 (1975).
   While these fundamental decisions must be made by a
criminal defendant, most of the decisions that arise in
criminal cases are the prerogative of counsel. (Our adver-
sarial system would break down if defense counsel were
                 Cite as: 584 U. S. ____ (2018)           9

                     ALITO, J., dissenting

required to obtain the client’s approval for every im-
portant move made during the course of the case.) Among
the decisions that counsel is free to make unilaterally are
the following: choosing the basic line of defense, moving to
suppress evidence, delivering an opening statement and
deciding what to say in the opening, objecting to the ad-
mission of evidence, cross-examining witnesses, offering
evidence and calling defense witnesses, and deciding what
to say in summation. See, e.g., New York v. Hill, 528 U. S.
110, 114–115 (2000). On which side of the line does con-
ceding some but not all elements of the charged offense
fall?
   Some criminal offenses contain elements that the prose-
cution can easily prove beyond any shadow of a doubt. A
prior felony conviction is a good example. See 18 U. S. C.
§922(g) (possession of a firearm by a convicted felon).
Suppose that the prosecution is willing to stipulate that
the defendant has a prior felony conviction but is pre-
pared, if necessary, to offer certified judgments of convic-
tion for multiple prior violent felonies. If the defendant
insists on contesting the convictions on frivolous grounds,
must counsel go along? Does the same rule apply to all
elements? If there are elements that may not be admitted
over the defendant’s objection, must counsel go further
and actually contest those elements? Or is it permissible
if counsel refrains from expressly conceding those ele-
ments but essentially admits them by walking the fine
line recommended at argument by petitioner’s current
attorney?
   What about conceding that a defendant is guilty, not of
the offense charged, but of a lesser included offense? That
is what English did in this case. He admitted that peti-
tioner was guilty of the noncapital offense of second-
degree murder in an effort to prevent a death sentence.
10                     MCCOY v. LOUISIANA

                         ALITO, J., dissenting

App. 651. 4 Is admitting guilt of a lesser included offense
over the defendant’s objection always unconstitutional?
Where the evidence strongly supports conviction for first-
degree murder, is it unconstitutional for defense counsel to
make the decision to admit guilt of any lesser included
form of homicide—even manslaughter? What about sim-
ple assault?
   These are not easy questions, and the fact that they
have not come up in this Court for more than two centu-
ries suggests that they will arise infrequently in the fu-
ture. I would leave those questions for another day and
limit our decision to the particular (and highly unusual)
situation in the actual case before us. And given the
situation in which English found himself when trial com-
menced, I would hold that he did not violate any funda-
mental right by expressly acknowledging that petitioner
killed the victims instead of engaging in the barren exer-
cise that petitioner’s current counsel now recommends.
                              IV
   Having discovered a new right not at issue in the real
case before us, the Court compounds its error by summarily
concluding that a violation of this right “ranks as error of
the kind our decisions have called ‘structural.’ ” Ante,
at 11.
   The Court concedes that the Louisiana Supreme Court
did not decide the structural-error question and that we
“ ‘did not grant certiorari to review’ that question.” Ante,

——————
  4 The Court asserts that, under Louisiana law, English’s “second-
degree strategy would have encountered a shoal” and necessarily failed.
Ante, at 3, n. 1. But the final arbiter of Louisiana law—the Louisiana
Supreme Court—disagreed. It held that “[t]he jury was left with
several choices” after English’s second-degree concession, “including
returning a responsive verdict of second degree murder” and “not
returning the death penalty.” 2014–1449 (La. 10/19/16), 218 So. 3d
535, 572 (2016).
                      Cite as: 584 U. S. ____ (2018)                     11

                           ALITO, J., dissenting

at 12, n. 4. We have stated time and again that we are “a
court of review, not of first view” and, for that reason, have
refused to decide issues not addressed below. Cutter v.
Wilkinson, 544 U. S. 709, 718, n. 7 (2005); see also, e.g.,
Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (slip op.,
at 29); McWilliams v. Dunn, 582 U. S. ___, ___ (2017) (slip
op., at 16); County of Los Angeles v. Mendez, 581 U. S. ___,
___, n. (2017) (slip op., at 8, n.); BNSF R. Co. v. Tyrrell,
581 U. S. ___, ___ (2017) (slip op., at 12); Goodyear Tire &
Rubber Co. v. Haeger, 581 U. S. ___, ___ (2017) (slip op., at
13); McLane Co. v. EEOC, 581 U. S. ___, ___ (2017) (slip
op., at 11); Expressions Hair Design v. Schneiderman, 581
U. S. ___, ___ (2017) (slip op., at 10); Manuel v. Joliet, 580
U. S. ___, ___ (2017) (slip op., at 14).
   In this case, however, the court-of-review maxim does
not suit the majority’s purposes, so it is happy to take the
first view. And the majority does so without adversarial
briefing on the question. See Brief for Respondent 45–46,
n. 5. 5 Under comparable circumstances, we have re-
frained from taking the lead on the question of structural
error. See e.g., Sandstrom v. Montana, 442 U. S. 510,
526–527 (1979); Faretta, 422 U. S., at 836; id., at 852
(Blackmun, J., dissenting). There is no good reason to
take a different approach in this case.
                      *    *    *
  The Court ignores the question actually presented by
the case before us and instead decides this case on the
——————
   5 Indeed, the Court actually faults the State for not “grappl[ing] with”

an argument raised for the first time in petitioner’s opening brief.
Ante, at 12, n. 4. But how can it blame the State? This Court has said,
time and again, that when “petitioners d[o] not raise [an] issue” until
the merits stage, “we will not consider [the] argument.” Chandris, Inc.
v. Latsis, 515 U. S. 347, 354, n. (1995); see also, e.g., Taylor v. Freeland
& Kronz, 503 U. S. 638, 645–646 (1992). That is also what our Rules
say. See Yee v. Escondido, 503 U. S. 519, 535–538 (1992). Why is this
case any different?
12                  MCCOY v. LOUISIANA

                     ALITO, J., dissenting

basis of a newly discovered constitutional right that is not
implicated by what really occurred at petitioner’s trial. I
would base our decision on what really took place, and
under the highly unusual facts of this case, I would affirm
the judgment below.
  I therefore respectfully dissent.