Podcast Summary: Amicus with Dahlia Lithwick

Episode: “The Gross Spectacle of a Divided Defense”
Date: January 20, 2018
Host: Dahlia Lithwick, Slate
Guests: Jay Schweickart (Cato Institute), Linda Greenhouse (Yale Law School, New York Times)

Episode Overview

This episode of Amicus explores two major topics in contemporary American law:

1. McCoy v. Louisiana and the Rights of Criminal Defendants – A Supreme Court case questioning whether a defense lawyer may, over the client’s express objection, admit his client’s guilt as a strategic move in a death penalty case.
2. The Role and Shifting Norms of the Office of the Solicitor General (SG) – Veteran Supreme Court journalist Linda Greenhouse discusses the historical and current significance of the SG, especially regarding consistency and reputation amid political shifts.

The episode is characterized by nuanced legal analysis, candid reflections on institutional norms, and philosophical debates about autonomy, strategy, and fairness in the criminal justice system.

Segment 1: McCoy v. Louisiana – Defendant Autonomy vs. Lawyer Strategy

[00:42–32:46]
Key Guest: Jay Schweickart, Cato Institute

Introduction to the Case

• Background: Robert McCoy, a Louisiana death row inmate, was convicted after his defense attorney told the jury he was guilty, despite McCoy’s adamant insistence on his innocence.
• Core Issue: Can a lawyer override a client’s explicit desire to maintain innocence and instead concede guilt to save them from the death penalty?

The Facts

• [03:20] Jay Schweickart: Outlines that McCoy was charged with murdering three family members in Louisiana in 2008. McCoy insisted he had an alibi (being out of state) and attributed the evidence against him to police corruption.
• McCoy’s public defenders and later retained counsel (Larry English) refused to pursue his defense strategy, considering it implausible.
• Days before trial, English informed McCoy he would admit guilt before the jury as a mitigation tactic; McCoy objected.
• At trial, English repeatedly told the jury McCoy was guilty, even cross-examining him to further the prosecution’s case.
• The jury returned guilty verdicts and sentenced McCoy to death.
  • Notable Quote:

    “Not only is his attorney not defending Mr. McCoy, but he's actually bringing in more evidence for the state's case than the state itself could have introduced.”
    — Jay Schweickart [07:25]

Legal Context and Precedents

• Sixth Amendment: The right to "assistance of counsel" is at stake, but Schweickart stresses this is about defendant autonomy, not attorney competence or effective assistance:
  • Notable Quote:

    “It's a question about who decides... It’s ultimately about what the client's objectives were in this case.”
    — Jay Schweickart [08:52]

• Florida v. Nixon (2004): The Supreme Court held that a lawyer can concede guilt if the client is unresponsive, but specifically did not address whether this can be done over explicit objection.
  • Clarification:

    “A lawyer cannot enter any plea of guilt, whether it's a capital case or not, without your client's express consent.”
    — Jay Schweickart [15:00]

The ‘Gross Spectacle’ and Systemic Concerns

• Schweickart highlights the “gross spectacle of a divided defense,” arguing that open lawyer-client conflict in front of the jury undermines the legitimacy of the criminal justice system.
  • Notable Quote:

    “I think that's an institutional problem going forward for the office.”
    — Linda Greenhouse [00:06]

  • On the adversarial system:

    “The storied history of criminal justice in this country is the jury trial, where you have adversarial testing of evidence... And without that, I think you don't have criminal justice.”
    — Jay Schweickart [19:03]

Oral Arguments at the Supreme Court

• Louisiana’s Solicitor General, Elizabeth Merle, argued for the necessity of allowing attorneys to override clients to avoid "futile charades" in some death penalty cases. Justices, especially Kagan and the Chief Justice, were skeptical:
  • Justice Kagan:

    “You just have conflicting objectives... The question is, when that happens, does the lawyer have to step back and say, you know what? That's not his goal.”
    — [23:35]

• Both liberal and conservative Justices seemed receptive to the idea that overriding a defendant’s goals, even for strategic reasons, was deeply problematic.
  • Schweickart’s Assessment:

    “I feel pretty confident about the ultimate outcome... I think it's a much more open question about how far they go, how they write the opinion.”
    — [24:19]

Philosophical and Practical Tensions

• Justice Breyer: Raised concerns about defendants walking themselves “right into the death chamber” by insisting on unwise defenses.

• Justice Sotomayor: Responded that defendants have the right to “walk themselves, regrettably, into the gas chamber, but they have a right to tell their story.” [27:55]

• Schweickart’s Explanation:

  “Defendants are allowed to make decisions that put themselves at risk... Any other approach is unworthy of a free people.”
  — [28:21]

Expertise vs. Autonomy

• On whether lawyers or clients know best:
  • Schweickart:

    “He knows better on the how question. ... He doesn't know better on what Mr. McCoy's goals and values should be.”
    — [30:42]

Segment 2: The U.S. Solicitor General – Legal Consistency & Institutional Integrity

[34:12–59:43]
Guest: Linda Greenhouse

The Solicitor General’s Role

• The Solicitor General (SG) represents the federal government before the Supreme Court, overseeing appeals and deciding which cases to pursue.
  • Greenhouse:

    “The solicitor general is a presidential nominee confirmed by the Senate... The SG is the government’s top appellate lawyer.”
    — [34:52]

Institutional Expectations vs. Political Pressures

• The SG’s office is expected to act with measured consistency to preserve credibility with the Supreme Court, even though it operates within the political Justice Department.
• Changing positions (“flipping sides”) on major precedents can damage the office’s reputation—a concern heightened during the Trump administration.
  • Greenhouse:

    “If the court comes to see the SG as simply another political player from the executive branch, I think that's an institutional problem going forward for the office.”
    — [00:06; 37:20]

The SG and the Supreme Court’s Stability

• The Supreme Court relies on the SG as a “straight shooter” for objective case assessments (e.g., identifying meaningful circuit splits).
  • Greenhouse:

    “The court relies on the Solicitor General’s office to be a straight shooter... If that gets eroded, it’s a problem for the SG and it’s a problem for the court.”
    — [39:36]

SG in Action: DACA and the Travel Ban

• Department of Justice (DOJ) controversially requested the Supreme Court to bypass the Ninth Circuit and take up the DACA case directly, a rare move framed as political by Greenhouse:
  • Greenhouse:

    “The administration appears to be thumbing its nose at the Ninth Circuit and thinking it may be able to count on five friends at the Supreme Court. The court wasn’t born last night...”
    — [41:14]

• Discusses how the court has strategically managed high-profile cases like the travel ban, not out of “outrage fatigue,” but to make well-informed decisions.

Segment 3: First Amendment, Abortion, and Speech – The NIFLA Case Preview

[46:02–53:59]

The NIFLA Case Context

• The Supreme Court was poised to hear National Institute of Family and Life Advocates (NIFLA) v. Becerra, involving California’s law requiring crisis pregnancy centers to provide certain information to clients (medical and abortion-related disclosures).
  • Greenhouse:

    “This is the case at the intersection of abortion law and the First Amendment. That’s a pretty tricky place to be.”
    — [46:32]

• The debates involve compelled speech and the limits of the government’s authority to require the dissemination of information by advocacy groups.

Broader Implications

• Potential for the case to affect not just abortion law, but also the broader landscape of compelled professional speech and religious liberty.

Segment 4: Journalism, Objectivity, and the Trump Era

[53:59–59:43]

Greenhouse on Legal Journalism

• Discusses her book, Just a Journalist, and the ongoing media struggle to distinguish between objective reporting and calling out falsehoods, especially during the Trump administration.
  • Greenhouse:

    “What's so fascinating about the Trump era is that the mainstream media finally had to wrestle with this ... has something changed in the media's DNA because of this?”
    — [55:19]

Parallels with the Supreme Court’s Own Institutional Struggles

• Links the media’s challenge to the Supreme Court’s and Chief Justice Roberts’ efforts to maintain institutional respect and a non-partisan façade in polarized times.

Memorable Quotes & Timestamped Highlights

• On Attorney-Client Division:

  “The gross spectacle of a divided defense… is not just a threat to Mr. McCoy's liberty, but really to the legitimacy of the criminal justice system itself.”
  — Jay Schweickart [18:48]

• On Defendant’s Right to Tell Their Story:

  “People can walk themselves into jail, they can walk themselves, regrettably, into the gas chamber, but they have a right to tell their story.”
  — Justice Sotomayor [27:55] (read by Linda Greenhouse)

• On the SG’s Institutional Role:

  “If the court comes to see the SG as simply another political player... that's an institutional problem going forward for the office.”
  — Linda Greenhouse [00:06; 37:20]

• On Legal Strategy vs. Autonomy:

  “He knows better on the how question...[but] he doesn't know better on what Mr. McCoy’s goals and values should be.”
  — Jay Schweickart [30:42]

• On Media Truth-Telling:

  “It's not enough to accurately quote somebody telling a lie... Are you going to be disabled from saying, by the way, dear reader... what he said simply is not true?”
  — Linda Greenhouse [55:19]

Suggested Listening Timestamps for Key Topics

• Defendant Autonomy and Trial Spectacle: [00:42–21:00]
• Legal Precedents and Oral Argument: [12:44–26:09]
• Philosophical Debate on Autonomy (Breyer vs. Sotomayor): [27:05–30:18]
• Role of the Solicitor General: [34:12–39:36]
• SG’s Reputation and Court Relations: [39:04–43:11]
• Travel Ban and Supreme Court Dynamics: [43:11–46:02]
• NIFLA and First Amendment/Abortion Law: [46:02–53:59]
• Journalism, Objectivity, and Trump Era: [53:59–57:49]

Conclusion

This episode offers an essential primer on the boundaries of lawyer authority, the philosophical bedrock of the adversarial criminal justice system, and the importance of institutional norms—whether in the courts, the SG’s office, or the press—in maintaining public trust. With in-depth legal storytelling, memorable quotes, and expert analysis, "The Gross Spectacle of a Divided Defense" exemplifies Amicus’s commitment to nuanced, accessible discussions of law and justice in America.