Petition for Writ of Certiorari — Raul Alvarez, Petitioner v. New York

Supreme Court briefDec 19, 2022

Ask Donna

What actually matters in this document.

Text

No. 22-

In the Supreme Court of the United States

RAUL ALVAREZ,

PETITIONER

PEOPLE OF THE STATE OF NEW YORK,

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE NEW YORK SUPREME COURT, APPELLATE DIVISION

PETITION FOR A WRIT OF CERTIORARI

MARK ZENO

MATT BOVA

CENTER FOR APPELLATE

LITIGATION

120 Wall Street

New York, NY 10005

JEFFREY T. GREEN

PAULINA OLIVARES*

TYLER SWAFFORD

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

XIAO WANG

Counsel of Record

MEREDITH R. ASKA MCBRIDE

NORTHWESTERN SUPREME

COURT PRACTICUM

375 E. Chicago Avenue

Chicago, IL 60611

(312) 503-1486

x.wang@law.northwestern.edu

Counsel for Petitioner

* Ms. Olivares is admitted only in Maryland and is

practicing law in the District of Columbia pending admission to the D.C. bar and under supervision of principals of

the firm who are members of good standing in the D.C.

bar.

QUESTION PRESENTED FOR REVIEW

Must a client object in open court to invoke their Sixth

Amendment right to maintain actual innocence as the

objective of their defense?

LIST OF PARTIES & PROCEEDINGS

Raul Alvarez, petitioner on review, was the movantappellant below.

The State of New York, respondent on review, was the

respondent-appellee below.

No party is a corporation.

The proceedings that are directly related to the case

are as follows:

•

People v. Alvarez, 38 N.Y.3d 1131 (N.Y. 2022)

•

People v. Alvarez, 166 N.Y.S.3d 852 (N.Y. App.

Div. 2022)

•

People v. Alvarez, No. 2018-1139 (N.Y. Sup. Ct.

March 24, 2017)

iii

TABLE OF CONTENTS

Question presented for review ..................................................... i

List of parties & proceedings ...................................................... ii

Table of authorities ....................................................................... v

Petition for writ of certiorari ....................................................... 1

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Constitutional provisions ............................................................. 1

Introduction................................................................................... 3

Statement of the case ................................................................... 5

A. Factual background......................................................... 5

B. Proceedings below ........................................................... 9

Reasons for granting the petition ............................................. 12

I. Courts are split on what McCoy requires.......................... 13

A. Some courts find a McCoy violation when a client

expresses to counsel an objective to maintain

innocence. ....................................................................... 14

B. Some courts require a client to object on the record

to maintain innocence. ................................................... 17

C. Some courts do not yet have a clear standard for

McCoy claims. ................................................................ 19

II. The decision below is wrong................................................ 20

A. Defendants are often barred from speaking—much

less expressly objecting—in court. .............................. 21

B. Courts can enforce McCoy without an express

objection.......................................................................... 23

III. This case is an ideal vehicle. ................................................ 25

A. Questions surrounding application of McCoy are

important and recurring. .............................................. 25

B. The McCoy issue here is well-preserved, clear, and

outcome-determinative. ................................................ 26

Conclusion ................................................................................... 28

TABLE OF AUTHORITIES

Cases

Page(s)

Anderson v. Butler,

858 F.2d 16 (1st Cir. 1988).............................................. 24

Bowman v. Warden,

2021 WL 1595635 (Conn. Super. Ct. Mar. 23, 2021) .... 19

Burks v. State,

227 S.W.3d 138 (Tex. Crim. App. 2006) ........................ 22

Commonwealth v. Alemany,

174 N.E.3d 649 (Mass. 2021) .......................................... 18

Commonwealth v. Stanley,

632 A.2d 871 (Pa. 1993) ................................................... 25

Epperson v. Commonwealth,

645 S.W.3d 405 (Ky. 2021) .......................................... 4, 18

Faretta v. California,

422 U.S. 806 (1975) .......................................................... 12

Florida v. Nixon,

543 U.S. 175 (2004) .............................................. 11, 12, 13

Garza v. Idaho,

139 S. Ct. 738 (2019) .................................................. 12, 25

Harper v. State,

2022 WL 1100280 (Iowa Ct. App. Apr. 13, 2022) ......... 19

Harris v. State,

856 S.E.2d 378 (Ga. Ct. App. 2021) ............................... 20

Harvey v. State,

318 So. 3d 1238 (Fla. 2021) ......................................... 4, 18

Illinois v. Allen,

397 U.S. 337 (1970) .......................................................... 22

Isom v. State,

170 N.E.3d 623 (Ind. 2021) ............................................. 20

Jones v. Barnes,

463 U.S. 745 (1983) .......................................................... 12

Martinez v. Ryan,

566 U.S. 1 (2012) .............................................................. 24

McCoy v. Louisiana,

138 S. Ct. 1500 (2018) .. 3–10, 12–13, 18, 20–21, 23, 25–28

Osagiede v. United States,

543 F.3d 399 (7th Cir. 2008) ........................................... 24

Pass v. State,

864 S.E.2d 464 (Ga. Ct. App. 2021) ............................... 20

People v. Alvarez,

193 N.E. 3d 517 (N.Y. 2022) ........................................... 11

vii

People v. Bloom,

508 P.3d 737 (Cal. 2022) ............................................ 14, 27

People v. Eddy,

244 Cal. Rptr. 3d 872 (Ct. App. 2019) ................. 3, 14, 15

People v. Maffei,

150 N.E.3d 1169 (N.Y. 2020) .......................................... 24

People v. Parker,

440 N.E.2d 1313 (N.Y. 1982) .......................................... 22

People v. Watson,

2020 WL 7296979 (Mich. Ct. App. Dec. 10, 2020) ........ 19

Roe v. Flores-Ortega,

528 U.S. 470 (2000) .......................................................... 25

Saunders v. Warden,

803 F. App’x 343 (11th Cir. 2020) .................................. 19

State v. Brown,

2022 WL 266603 (La. Jan. 28, 2022) .............................. 18

State v. Chambers,

955 N.W.2d 144 (Wis. 2021) ........................................... 16

State v. Froman,

165 N.E.3d 1198 (Ohio 2020) .......................................... 19

State v. Horn,

251 So. 3d 1069 (La. 2018) .............................................. 27

viii

Thompson v. Cain,

433 P.3d 772 (Or. Ct. App. 2018).............................. 15, 26

Turner v. State,

570 S.W.3d 250 (Tex. Crim. App. 2018) ...... 15, 16, 17, 26

U.S. ex rel. Hampton v. Leibach,

347 F.3d 219 (7th Cir. 2003) ........................................... 24

United States v. Abboud,

2022 WL 3595055 (E.D.N.Y. Aug. 23, 2022) ....... 3, 16, 26

United States v. Felicianosoto,

934 F.3d 783 (8th Cir. 2019) ........................................... 16

United States v. Hashimi,

768 F. App’x 159 (4th Cir. 2019) .............................. 16, 17

United States v. Perry,

2022 WL 3273279 (M.D. La. Aug. 10, 2022) ........... 17, 20

United States v. Read,

918 F.3d 712 (9th Cir. 2019) ........................................... 19

Weaver v. Massachusetts,

137 S. Ct. 1899 (2017) ...................................................... 12

Other Authorities

Alexandra Natapoff, Speechless: The Silencing of

Criminal Defendants,

80 N.Y.U. L. Rev. 1449 (2005) ....................................... 21

Sarah Podmaniczky, Order in the Court: Decorum,

Rambunctious Defendants, and the Right to Be

Present at Trial,

14 J. Const. L. 1283 (2012) ............................................. 22

PETITION FOR WRIT OF CERTIORARI

Raul Alvarez seeks a writ of certiorari to review the

judgment and opinion of the New York Supreme Court,

Appellate Division (First Department).

OPINIONS BELOW

The decision of the New York Court of Appeals denying

a certificate for leave to appeal issued on July 21, 2022 and

is reported at 38 N.Y.3d 1131. The New York Supreme

Court, Appellate Division’s opinion is reported at 166

N.Y.S.3d 852. The Supreme Court’s opinion is unreported.

JURISDICTION

The New York Court of Appeals denied leave to appeal

on July 21, 2022. This Court has jurisdiction under 28

U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS

The Sixth Amendment of the United States Constitution provides:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence.

INTRODUCTION

“[I]t is the [individual’s] prerogative, not counsel’s, to

decide on the objective of his defense.” McCoy v. Louisiana, 138 S. Ct. 1500, 1505 (2018). And when “[p]resented

with express statements of the client’s will to maintain innocence,” “counsel may not steer the ship the other way.”

Id. at 1509.

In proceedings over the alleged assault of Evelyn Rivera, Raul Alvarez presented many such express statements. He said to the grand jury, point blank, that he

“never assaulted Ms. Rivera.” Pet. App. 224a. He testified at trial that he “did not assault Ms. Rivera” and

“never hit Ms. Rivera.” Id. at 172a. And at sentencing he

maintained he “never assaulted Ms. Evelyn Rivera” and

“never threatened her.” Id. at 104a. All told, Mr. Alvarez

asserted his innocence more than thirty times. Not once

did he admit guilt.

Despite all that, counsel for Mr. Alvarez “steer[ed] the

ship the other way” anyway. McCoy, 138 S. Ct. at 1509.

Never informing Mr. Alvarez of his plan, counsel

“conced[ed]” in closings “that [the State] did prove assault

in the third degree beyond a reasonable doubt,” and

“ask[ed]” the jury “to return a . . . guilty verdict of assault

in the third degree.” Pet. App. 121a–22a.

Had Mr. Alvarez been tried in California, Texas, or

Wisconsin, he would have been entitled to (or secured) relief—it would be hard to find a clearer example of counsel

“disregard[ing]” an “objective” to “maintain . . . innocence” by literally “conceding guilt” before the jury. People v. Eddy, 244 Cal. Rptr. 3d 872, 879 (Ct. App. 2019).

Had he, indeed, been tried just a mile away, in federal

court, Mr. Alvarez would likely have been able to show a

constitutional violation. United States v. Abboud, 2022

WL 3595055, at *3 (E.D.N.Y. Aug. 23, 2022). But the New

York Appellate Division rejected Mr. Alvarez’s McCoy

claim because he never “made an express objection,” in

open court before the jury at the time of “concession.”

Pet. App. 3a (internal quotation marks omitted).

In so doing, New York joined several other jurisdictions which have—contra California, Texas, and McCoy

itself—applied an “express objection” requirement. See,

e.g., Harvey v. State, 318 So. 3d 1238, 1239 (Fla. 2021); Epperson v. Commonwealth, 645 S.W.3d 405, 410 (Ky. 2021).

But it also went further, becoming the first to reject a

McCoy claim, on no-record-objection grounds, despite a

client’s direct testimony at trial and before trial maintaining innocence on all charges. It became, too, the first to

require a client to object contemporaneously—even

though, when defendant tried to do the very same thing in

McCoy, he was “told” by the court that it “would not permit any other [such] outbursts.” 138 S. Ct. at 1507 (internal quotation marks omitted). The New York Appellate

Division’s holding, in short, does more than deepen a split

in authority. Instead of “protect[ing]” Mr. Alvarez’s “autonomy right” to “decide . . . the objective of [his] defense,” it flouts it. Id. at 1508, 1511.

STATEMENT OF THE CASE

A. Factual background

On January 4, 2016, a grand jury returned an indictment charging Raul Alvarez with assault of Evelyn Rivera, his intimate partner. The indictment charged second-degree assault (striking with a hard object, causing

physical injury) and contempt for violating two protective

orders barring him from contacting Ms. Rivera. The

State’s theory was that, inside Mr. Alvarez’s motorhome,

Mr. Alvarez and Ms. Rivera had argued, and Mr. Alvarez

struck her with a bottle, chipping her tooth and causing

injury.

From the outset, and during at least eight separate occasions in proceedings, Mr. Alvarez “repeatedly and adamantly insisted on maintaining his factual innocence.”

McCoy, 138 S. Ct. at 1510.

First, he told the arresting officer he did not assault

Ms. Rivera. Pet. App. 220–21a.

Second, he gave a videotaped statement to the District

Attorney stating the same. Id.

Third, despite being advised of the risks of doing so,

Mr. Alvarez insisted on testifying before the grand jury.

Id. at 21a. There, his statements of innocence were unequivocal. In his first moments on the stand, he recounted

the facts of the incident, and stated he “never assaulted

Ms. Rivera.” Id. at 224a. His story did not change following continued examination. Id. at 243a (“I didn’t touch

Ms. Rivera, people of the jury. I did not touch Ms. Rivera

. . . I want to let you know these are false allegations. I

never touched Ms. Rivera.”). And when asked about injuries Ms. Rivera purportedly sustained, Mr. Alvarez stated

he didn’t “have any idea how [Ms. Rivera] got those injuries, if she has injuries. I doubt [she has any] because I

didn’t touch her.” Id. at 249a–50a.

Fourth, Mr. Alvarez insisted, “repeatedly and adamantly” “in conference with his lawyer” that he was innocent. McCoy, 138 S. Ct. at 1509–10.

Mr. Alvarez was so adamant regarding his innocence

that he fired his first attorney, Timothy Pruitt, when Mr.

Pruitt suggested a plea deal. Pet. App. 17a–38a. Mr.

Pruitt was concerned because Mr. Alvarez’s criminal history created “massive” exposure for him—a possible life

sentence—and thus negotiated a “nonviolent” plea. Id. at

16a–17a. But Mr. Alvarez would have none of it.

Fifth, in October 2016, Mr. Alvarez requested and was

assigned new counsel, Theodore Herlich. At their first

meeting, Mr. Alvarez made clear that he “never assaulted

Ms. Rivera.” Id. at 28a–29a. He “told Mr. Herlich the

same thing I told the officer, the same thing I told the

grand jury, the same thing I told Mr. Pruitt, same thing I

told the judge, everybody else”: that he was innocent. Id

at 29a.

Although Mr. Herlich informed Mr. Alvarez he was

“looking at a life sentence,” “after one or more conversations it was crystal clear” to Mr. Herlich that “Mr. Alvarez

wanted to go to trial.” Id. at 54a.

Even so, the State offered a plea to attempted assault,

for a “one and a half to three” year prison term. Id. Mr.

Alvarez, consistent with his earlier positions, “rejected”

the offer and “wanted to go to trial.” Id. He was “not

interested in” a “plea bargain[]” because he “was innocent” and “was not even willing to take time served.” Id.

at 40a, 48a.

Sixth, Mr. Alvarez took the stand in his own defense

at trial. He did not waver. Right away, he stated that he

“never assaulted Evelyn Rivera.” Id. at 160a. According

to Mr. Alvarez, Ms. Rivera “walked into [his] truck without permission,” while Mr. Alvarez was “under the truck”

and “could not see her.” Id. at 171a. Once Mr. Alvarez

saw her, the two started arguing. 172a–73a.

Their argument escalated. Ms. Rivera “grabbed me

by my neck, to snap my chain.” Id. at 172a. “I was holding

her hands . . . . And then she tried to bite me . . . . That’s

possibl[y] how she chipped her tooth.” Id. Over repeated

questioning, Mr. Alvarez’s story stayed the same: he

“never hit Ms. Rivera,” “did not punch Ms. Rivera,” “did

not kick Ms. Rivera,” “did not bite Ms. Rivera,” and “did

not assault Ms. Rivera.” Id.

After presenting his case in chief, Mr. Herlich asked

during a charge conference that an instruction on the

“lesser included offense of Assault in the Third Degree”

be added. Id. at 123a. The State objected, insisting that

“when the defendant testified, he testified he did not touch

her at all; that he never assaulted her; he never hit her; he

never punched her. He denied hitting her, entirely.” Id.

The trial court overruled the State’s objection and agreed

to charge the lesser offense.

Seventh, at sentencing, Mr. Alvarez continued to

maintain his innocence. When invited to address the

court, he again insisted that he “never assaulted Ms. Evelyn Rivera,” “never threatened her,” and “would not hit

her.” Id. at 104a. He refused to acknowledge guilt, even

though doing so might have mitigated his sentence. To

the contrary, he elaborated: “I am not guilty. I should

never have been found guilty of assault. . . . There was no

violence.” Id. at 105a.

Eighth, at a post-sentencing hearing, Mr. Alvarez

again testified to his innocence: “I was innocent, and I

wanted to prove I was innocent. I never assaulted Ms.

Rivera.” Id. at 48a.

From start to finish, Mr. Alvarez repeatedly asserted

his innocence on the record. He made his objective clear

when invited by the court or on the stand. He was adamant about his innocence, and spoke when given the opportunity. Not once, in nearly one thousand transcript

pages, did he even entertain—much less acknowledge—

that he assaulted Ms. Rivera.

But in closing arguments, his lawyer took a different

path. He said in his “humble opinion” that his client had

not told the truth. Pet. App. 113a. To the contrary, “in

light of all of th[e] evidence,” he “concede[d] that they did

prove assault in the third degree beyond a reasonable

doubt.” Id. at 121a. And to bring the point home, Mr.

Herlich’s last words to the jury were: “I’m asking you to

return a not guilty verdict on assault in the second degree

and return a guilty verdict of assault in the third degree.”

Id. at 122a.1

Mr. Alvarez “couldn’t believe” the words coming out of

Mr. Herlich’s mouth. Id. at 32a. He “put [his] head

down,” stunned that his “own lawyer” had conceded guilt

without “even giv[ing] the jury a chance to deliberate.”

Id.; see id. (“I’m like, ‘Wow, my own lawyer . . . [w]hy is he

doing this to me.”).

A finding of guilt on either assault charge would have also compelled a finding of guilt on the contempt charges. Pet. App. 80a.

B. Proceedings below

The jury, consistent with Mr. Herlich’s request, returned a guilty verdict on all charges other than seconddegree assault. Mr. Alvarez was sentenced to a prison

term of between three-and-one-half to seven years—more

than double the rejected plea bargain.

Mr. Alvarez thereafter moved to vacate the judgment

under McCoy v. Louisiana, asserting that “what [Mr.

Herlich] said in summation”—to “find him guilty of . . .

third degree assault”—“was not the strategy that was discussed” and not the objective of Mr. Alvarez’s defense.

Pet. App. 88a–89a. To the contrary, because Mr. Alvarez

had expressed to counsel his objective to maintain innocence, counsel erred by overriding that objective. The

court ordered a hearing on the claim.

At the hearing, Mr. Alvarez, as noted above, reiterated

that he had informed his attorney he was completely innocent and wanted to assert innocence as a defense to all

charges. More tellingly, Mr. Herlich testified that he “understood that the crux of” his summation—conceding

third degree assault, contesting second-degree assault—

“was contrary to his [client’s] adamant position that he

had never assaulted her.” Id. at 64a. He moreover never

explicitly told Mr. Alvarez he would concede guilt. Instead, Mr. Herlich maintained that he was merely “arguing . . . in the alternative.” Id. at 67a.

That is not what happened. Mr. Herlich did not “concede guilt as an alternative.” Id. at 80a. He “purely conceded guilt.” Id. Consider what Mr. Herlich said he said:

“[E]ven if the jury accepts the People’s evidence there’s a

viable argument that Mr. Alvarez committed assault third

degree as an alternative way of viewing the evidence.” Id.

at 65a (emphasis added). Here is what he actually said:

“I submit to you that in light of all of th[e] evidence, . . . I

concede that they did prove assault in the third degree beyond a reasonable doubt.” Id. at 121a (emphasis added).

And in case there was any confusion, his final words to

jurors were to “ask[] you to return a not guilty verdict on

assault in the second degree and return a guilty verdict of

assault in the third degree”—no ifs, ands, or buts. Id. at

122a. The word “alternative,” or any variation, appears

nowhere in Mr. Herlich’s thirty-six-page summation.

This was plainly “not the strategy” Mr. Alvarez and

Mr. Herlich had “discussed.” Id. at 89a; id. at 45a–46a

(“[Mr. Herlich] didn’t give [the jury] a chance to deliberate. He just said I was guilty.”). Had Mr. Alvarez known

beforehand that Mr. Herlich had planned to concede guilt

to an assault charge, Mr. Alvarez “would’ve asked [Mr.

Herlich] to excuse himself. I would have told him no.” Id.

at 34a. As he put it: “Why would I go to trial and risk

going to life [in prison] if that was the case? I would just

take a plea bargain”—which would have resulted in a considerably more lenient sentence. Id. In fact, when previously presented with that very opportunity by his former

counsel, Mr. Alvarez not only rejected the plea. He discharged counsel. See also id. (“Why would I go to trial?

It doesn’t make sense.”).

The trial court found no Sixth Amendment violation,

holding that it was “logical to conclude that Mr. Alvarez,

even while proclaiming and maintaining his innocence,

would not protest a tactical decision to concede guilt on a

lesser charge to avoid the distinct possibility of a mandatory life sentence if convicted of the higher charge.” Id.

at 8a.

The Appellate Division affirmed. It held that Mr. Alvarez “did not establish a violation of McCoy v. Louisiana, because he . . . has not established that he ever made

an ‘express objection’ to any concession of partial guilt.”

Id. at 3a. Citing Florida v. Nixon, 543 U.S. 175 (2004), the

Appellate Division further averred that “counsel was not

obligated to obtain defendant’s express consent” to such a

concession. Pet. App. 3a. The New York Court of Appeals

denied leave to appeal. People v. Alvarez, 193 N.E. 3d 517

(N.Y. 2022). Id. at 1a

REASONS FOR GRANTING THE PETITION

It is a “fundamental legal principle that a defendant

must be allowed to make his own choices about the proper

way to protect his own liberty.” Weaver v. Massachusetts,

137 S. Ct. 1899, 1908 (2017). Like the decision of “whether

to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal,” Jones v. Barnes, 463 U.S. 745, 751

(1983), the Court has long held that “the right to defend is

personal,” Faretta v. California, 422 U.S. 806, 834 (1975),

belonging to the defendant. “[A]lthough he may conduct

his own defense ultimately to his own detriment, his

choice must be honored out of that respect for the individual which is the lifeblood of the law.” Id. (internal quotation marks omitted). Such decisions are so core to our system that when the right is invaded, its holder need not

show prejudice. Garza v. Idaho, 139 S. Ct. 738, 743–44

(2019).

Florida v. Nixon recognized a narrow exception to

this general rule. As Nixon notes, counsel “undoubtedly

has a duty to discuss potential strategies with the defendant.” 543 U.S. at 178. “But when a defendant . . . neither

consents nor objects to the course counsel describes as the

most promising . . . , counsel is not automatically barred

from pursuing that course.” Id.

McCoy v. Louisiana subsequently clarified that the

“[a]utonomy to decide that the objective of the defense is

to assert innocence” is “reserved for the client,” and not

counsel. 138 S. Ct. at 1508. McCoy distinguished Nixon,

observing that defendant there “never asserted any such

objective.” Id. at 1509. He was instead “generally unresponsive during discussion of trial strategy.” Id. (internal

quotation marks omitted) (citing Nixon, 543 U.S. at 181).

McCoy, “in contrast, opposed [the] assertion of his guilt at

every opportunity, before and during trial, both in conference with his lawyer and in open court.” 138 S. Ct. at 1509

Accordingly, “[i]f a client declines to participate in his defense, then an attorney may permissibly guide the defense”—Nixon. Id. But if “[p]resented with express

statements of the client’s will,” counsel must follow the client’s lead—McCoy. Id.

I. COURTS ARE SPLIT ON WHAT MCCOY REQUIRES.

At the time it was decided, the dissent in McCoy described McCoy as a “rare” case, “in which a rational defendant prefers even a minuscule chance of acquittal over

. . . an admission of guilt.” Id. at 1515 n.2 (Alito, J., dissenting). But four years on, dozens of courts have confronted this exact scenario. And confusion abounds over

how and when McCoy applies.

Although the opinion makes clear that a lawyer cannot

override a defendant’s “express statement” to maintain

innocence, what constitutes an “express statement”? Id.

at 1509. Must it be made in open court? Is it sufficient if

a client tells his lawyer during private attorney-client discussions that he wants to maintain his innocence, and

these communications are corroborated by in-court testimony?

These questions have divided courts post-McCoy.

While in California, private discussions with counsel are

enough to show a constitutional violation, in New York,

thirty statements on the record in court are not. And in

other jurisdictions—Ohio, Michigan, and Georgia—the

parameters are unclear, requiring guidance.

A. Some courts find a McCoy violation when a client expresses to counsel an objective to maintain innocence.

Several jurisdictions do not require a client to object

on the record in court, explicitly and contemporaneously,

to maintain innocence. Instead, these jurisdictions consider whether the client expressed to counsel their intent

to maintain innocence, including in private conversations

with counsel.

In California, for example, courts look to see if “(1)

th[e] defendant’s plain objective [was] to maintain his innocence and pursue an acquittal, and (2) [if] trial counsel

disregard[ed] that objective and over[ode] his client by

conceding guilt.” Eddy, 244 Cal. Rptr. at 879; see also

People v. Bloom, 508 P.3d 737, 760 (Cal. 2022).

Eddy is instructive. There, the client sought to pursue

a strategy of “factual innocence” to murder charges. 244

Cal. Rptr. 3d at 875. At openings, counsel followed that

course, claiming that another assailant had committed the

crime. But one day later—much like Mr. Herlich—counsel “conceded in his closing argument that defendant” had

“committed the” lesser-included “crime of voluntary manslaughter.” Id. (internal quotation marks and alteration

omitted). At a post-conviction hearing, defendant—much

like Mr. Alvarez—insisted that “[f]rom the get-go, I was

arguing” innocence. Id. at 876. Still, at certain points, defendant appeared to be “waffling a little bit” on strategy,

which counsel took as “acquies[cence]” to act. Id. at 878.

Of note, in prosecuting his McCoy claim, defendant in

Eddy relied only on his out-of-court conferences with

counsel. He did not testify at trial, and—critically—“did

not object during closing argument after his counsel conceded his guilt.” Id. at 879. The court also acknowledged

that defendant might even have at points “temporarily acquiesced” to counsel’s strategy. Id. at 878. Still, in light

of the client’s internal discussions with counsel and statements from the post-trial hearing, the evidence “made

clear that [the defendant] had instructed his counsel not

to concede manslaughter and that counsel had overridden

this directive.” Id. at 879.

Eddy’s test—determining a client’s plain objective,

based on a holistic review, and examining whether counsel

overrode that objective—tracks the standard in Oregon.

In Thompson v. Cain, 433 P.3d 772, 773 (Or. Ct. App.

2018), for instance, the Oregon Court of Appeals remanded when a “defendant neither affirmatively acquiesce[d] nor reject[ed] the proposed strategy, but, rather,

simply maintain[ed] his innocence.” As the court explained, “the proper inquiry is on the fundamental objective of the defendant, as expressed to defense counsel.”

Id. at 777 (emphasis added). Counsel thus violates the

Sixth Amendment when conceding guilt despite the client’s “expressed fundamental objective” to maintain innocence or the client’s “clear opposition to admission of

guilt.” Id.

Texas, too, charts a similar course. In Turner v. State,

a capital case, counsel conceded that defendant killed the

victims in both opening and closing statements, further

stating that defendant could not “admit what he did, to

himself or anybody else.” 570 S.W.3d 250, 276 (Tex. Crim.

App. 2018). This concession contradicted the defendant’s

own testimony—that he “didn’t kill two women”—and

statements he made before, during, and after trial consistently maintaining his innocence. Id. at 272.

The court held that counsel’s concession, which overrode the client’s fundamental objective to maintain innocence, violated McCoy. Id. at 276. In so doing, it rejected

the argument that defendant had “failed to object either

before or during defense counsel’s opening statement.”

Id. Though “a defendant cannot simply remain silent before and during a trial,” nor should a defendant “be expected to object with the precision of an attorney.” Id.

Instead, “[a] defendant makes a McCoy complaint with

sufficient clarity when he presents express statements of

his will to maintain innocence.” Id. (internal quotation

marks and alteration omitted). Defendant’s own testimony, among other things, “explicitly” checks that box.

Id.

Federal courts in New York—unlike its state courts—

appear to also embrace a broader reading of McCoy.

United States v. Abboud, 2022 WL 3595055, at *3

(E.D.N.Y. Aug. 23, 2022), held that a client need only

“show that she expressly asserted her decision not to concede guilt” to counsel and that counsel disregarded her intent during trial. Although there was in the end no McCoy

violation in Abboud because a post-trial hearing revealed

that defendant agreed with her counsel’s choice to concede guilt, id. at *4, the decision nonetheless makes no

mention of an express objection requirement. Other

courts are in accord. See, e.g., State v. Chambers, 955

N.W.2d 144, 149 n.6 (Wis. 2021) (“We read McCoy as not

necessarily requiring a defendant to contemporaneously

object on the record in order to preserve that claim.”).

Finally, the Fourth and Eighth Circuits encourage appellants who cannot establish a McCoy violation on direct

appeal to develop the record on collateral review, for

“there may be facts not in the present record that might

demonstrate such a violation.” United States v. Felicianosoto, 934 F.3d 783, 787 (8th Cir. 2019); accord United

States v. Hashimi, 768 F. App’x 159, 162 (4th Cir. 2019).

Although not necessarily as plain as Eddy or Turner, the

necessary implication of these decisions is that a contemporaneous express objection is unnecessary. Were it otherwise, there would be no need for further development,

since the trial transcript would contain the necessary—

and exclusive—form of “definitive evidence.” Hashimi,

768 F. App’x at 163.

B. Some courts require a client to object on the

record to maintain innocence.

By contrast, some jurisdictions read McCoy as requiring an individual to (1) object (2) at trial (3) in open court

to counsel’s concession of guilt.

Louisiana’s federal and state courts, for example, require “an explicit objection by a defendant, on the record

or in the presence of the trial judge.” United States v.

Perry, 2022 WL 3273279, at *6 (M.D. La. Aug. 10, 2022).

Consequently, in Perry, the court denied a McCoy claim

because the defendant did not lodge a contemporaneous

objection to his own lawyer’s concession of guilt. Id. at *9.

Perry observed that other “[f]ederal district courts within

the Fifth Circuit have interpreted McCoy to require an

explicit objection on the record to sustain a McCoy claim.”

Id. at *6; see also id. at *7–8 (citing district court decisions

from Central District of California, Eastern District of

Michigan, and Northern District of Ohio).

As Perry also noted, the government had acknowledged in briefing “a split amongst” “various state courts” and “federal circuit courts

of appeal” on what McCoy requires. 2022 WL 3273279, at *8 n.93.

In State v. Brown, 2022 WL 266603, at *44 (La. Jan. 28,

2022), the Louisiana Supreme Court applied this same

standard in a capital case, denying a claim that counsel’s

concession to second-degree murder abrogated McCoy.

The court acknowledged that, before the trial, defendant

had written a letter to the court, criticizing counsel because “[m]y lawyer was selling me out.” Id. at *42. During an ex parte hearing at trial, defendant reiterated that

he “had never discussed the case” with counsel and “did

not know where [counsel was] going with anything.” Id.

at *43 (internal quotation marks omitted). But the Louisiana Supreme Court chalked up these disagreements to

“a lack of communication.” Id. at *44. “Ultimately, without defendant’s explicit objection to an admission of

guilt,” the Louisiana Supreme Court held that a McCoy

claim fails. Id. (emphasis added).

Somewhat similarly, in Commonwealth v. Alemany,

174 N.E.3d 649, 665–66 (Mass. 2021), the Supreme Judicial Court of Massachusetts denied defendant’s motion for

a new trial because, in advancing an insanity defense,

counsel conceded guilt. The court “discredit[ed]” an affidavit from defendant “stating that he had objected to his

counsel’s use of the insanity defense on multiple occasions.” Id. at 667. As it observed, this affidavit “does not

explain why he did not object upon hearing argument and

testimony regarding his concession of guilt.” Id. at n.11.

Several other states also require express objections on

the record, referencing the “adamant” and “repeated” assertions made in open court by petitioner in McCoy. 138

S. Ct. at 1503, 1507. See, e.g., Epperson v. Commonwealth, 645 S.W.3d 405, 410 (Ky. 2021) (examining

whether “there is an ‘intransigent objection’ on the record”); Harvey v. State, 318 So. 3d 1238, 1239 (Fla. 2021)

(“[C]ounsel in [McCoy] conceded guilt over the defendant’s adamant objection.”); Harper v. State, 2022 WL

1100280, at *6 (Iowa Ct. App. Apr. 13, 2022) (“[T]he pertinent inquiry . . . is whether the defendant ‘adamantly objected’ to the admission.”); Bowman v. Warden, 2021 WL

1595635, at *7 (Conn. Super. Ct. Mar. 23, 2021) (“A critical

component of McCoy was the defendant’s repeated and

consistent objections.”).

The Eleventh Circuit has, in dicta, also suggested as

much, noting that “[o]nly if a client objects to the concession is there structural error.” Saunders v. Warden, 803

F. App’x 343, 346 n.4 (11th Cir. 2020).

C. Some courts do not yet have a clear standard for

McCoy claims.

Finally, some jurisdictions have yet to issue a brightline rule. The Ninth Circuit, for example, recognizes that

a court “commits reversible error by permitting defense

counsel to present a defense of insanity over a competent

defendant’s clear rejection of that defense.” United

States v. Read, 918 F.3d 712, 719 (9th Cir. 2019). But Read

involved a “clear objection” at trial on the record, id.—

leaving unanswered whether statements made pre- or

post-trial or out-of-court would qualify.

In Michigan, there is no McCoy issue when a client disagrees with counsel’s strategy after sentencing. People v.

Watson, 2020 WL 7296979, at *6 (Mich. Ct. App. Dec. 10,

2020). It is unclear, however, whether an express objection at trial is required. Id.

The Ohio Supreme Court has noted only that a client

must have objected before a concession by trial counsel,

but has said little about how an individual should manifest

such an objection. State v. Froman, 165 N.E.3d 1198,

1229–30 (Ohio 2020). And in Georgia, although courts examine whether the client opposed counsel’s strategy, it is

(like Ohio) unclear what, exactly, a client must do. Harris

v. State, 856 S.E.2d 378, 383 (Ga. Ct. App. 2021); see also

Pass v. State, 864 S.E.2d 464, 469 (Ga. Ct. App. 2021).

In sum, the split here is deep, cutting across the most

populated states and busiest dockets. It is consequential

since McCoy implicates structural error. 138 S. Ct. at

1511. Both circumstances make the case for additional direction from this Court.

II. THE DECISION BELOW IS WRONG.

Even among jurisdictions that require an express objection, the New York Appellate Division went one step further. In every other jurisdiction, there was little to no evidence to suggest, from the trial record, defendant’s intention to maintain innocence. Almost all evidence came after the fact, during post-conviction proceedings. There is

thus a possibility that, had the record evidence here been

present in those cases, the outcome might have been different. See Perry, 2022 WL 3273279, at *9. Further, in

no other jurisdiction has a court required a contemporaneous express objection after the defendant themselves

takes the stand, asserting innocence, while also maintaining his disagreement with counsel’s strategy of conceding

guilt.

In other words, if Mr. Alvarez had made his thirty assertions of innocence on the record and taken the stand—

twice—he might well have shown that counsel’s “unambiguous concessions were made over the client’s adamant

and repeated objections,” even in an express-objection jurisdiction like Indiana. Isom v. State, 170 N.E.3d 623, 639

(Ind. 2021). Not so in New York. More there is needed:

a simultaneous, in-court objection, even if counsel waits

until the very end of trial to concede guilt.

A. Defendants are often barred from speaking—

much less expressly objecting—in court.

This demand—that Mr. Alvarez should have objected in

open court, at the end of his counsel’s closing argument—

is neither workable nor prudent. In fact, it bucks McCoy.

There, after counsel conceded guilt in openings, the defendant “protested” and—“out of earshot of the jury”—

“told the court that [counsel] was selling him out.”

McCoy, 138 S. Ct. at 1506 (internal quotation marks and

alteration omitted). But “[t]he trial court reiterated that

[counsel] was ‘representing’ [the defendant] and told [the

defendant] that the court would not permit ‘any other outbursts.’” Id. at 1506–07. In other words, when the defendant in McCoy tried to manifest a simultaneous, in-court

objection, he was told to keep quiet.

So too here. Mr. Alvarez—operating under the traditional rule that attorneys, not their clients, speak in

court—explained at his post-conviction hearing that he

“never spoke” because “I was told I’m not allowed to

speak in court.” Pet. App. 44a. The record bears that out:

Outside of testimony or in response to a specific question

from the court, Mr. Alvarez did not speak at trial.

His course of conduct reflects the common sense understanding that “defendants are constantly encouraged to

be quiet and to let their lawyers do the talking. And most

do.” Alexandra Natapoff, Speechless: The Silencing of

Criminal Defendants, 80 N.Y.U. L. Rev. 1449, 1450

(2005). An express-objection requirement is thus inconsistent with the normal way of doing business in our

courts.

Not only that, but such a requirement puts individuals

at risk of sanctions or other discipline. As both this Court

and New York’s Court of Appeals have long held, judges

may remove a defendant from court—despite his Sixth

Amendment right to be present at his own trial—when

the defendant behaves in a “disorderly, disruptive, and

disrespectful” manner. Illinois v. Allen, 397 U.S. 337, 343

(1970); see also People v. Parker, 440 N.E.2d 1313, 1315

(N.Y. 1982) (“[A] waiver of the right to be present at a

criminal trial may be inferred from certain conduct engaged in by the defendant after the trial has commenced.”).

Of course, “the same principles that warrant the trial

court’s exercise of its discretion to exclude a defendant

from the courtroom in a proper case necessarily encompass the trial court’s exercise of its discretion to order the

less-harsh remedy of requiring that appellant remain

‘quiet.’” Burks v. State, 227 S.W.3d 138, 146 (Tex. Crim.

App. 2006). Moreover, had the trial court here exercised

such discretion, its decision would have been all but unreviewable, given the “excessive deference” that appellate

courts “grant” to “the trial court’s decision to remove defendants from the courtroom.” Sarah Podmaniczky, Order in the Court: Decorum, Rambunctious Defendants,

and the Right to Be Present at Trial, 14 U. Pa. J. Const.

L. 1283, 1285 (2012).

New York’s rule, in other words, places defendants in a

thorny predicament. A defendant who is removed from

court before their counsel concedes guilt would have no

opportunity to “expressly object.” Pet. App. 3a. And the

mere threat of expulsion for speaking in open court—a

threat made clear by the trial court in McCoy—could chill

defendants from expressly objecting to counsel’s concession of guilt. In practice, asking defendants to expressly

object leaves them between a rock and a hard place:

break the basic rules on speaking in court and risk being

expelled, or stay silent and forfeit a McCoy claim.

B. Courts can enforce McCoy without an express

objection.

McCoy includes no express objection requirement.

The opinion’s singular reference to an “express objection”

comes not in its review of constitutional deficiency, but in

the discussion of structural error. See 138 S. Ct. at 1511

(“[C]ounsel’s admission of a client’s guilt over the client’s

express objection is error structural in kind.”).

Even then, this Court did not require an “express objection” be on the record, in court, and simultaneous. To

the contrary, it referenced, throughout the opinion, defendant’s assertions of innocence “before and during

trial” as well as “in conference with his lawyer and in open

court.” Id. at 1509. It moreover explained that when

counsel—not the court—is “[p]resented with express

statements of the client’s will,” “counsel may not steer the

ship the other way.” Id. There would have been no need

to reference such out-of-court statements, and whether

said statements were conveyed to counsel, if an express

objection were the sine qua non.

Requiring an express objection elevates form over

function. A more sensible approach would allow defendants to develop their McCoy claims during postconviction

proceedings. Here, for instance, Mr. Alvarez was able at

his postconviction hearing to present undisputed evidence

of (1) his wish to maintain innocence, (2) his counsel’s failure to consult or discuss a concession strategy, and (3) his

concern about objecting in open court at trial. This evi-

dence, combined with his actions before trial, his testimony before the grand jury and at trial, and his statements at sentencing, provide a strong case for a McCoy

violation. It makes little sense given this evidence to force

Mr. Alvarez, at the risk of forfeiting his right to be in the

courtroom, to expressly object at trial.

More generally, imposing a contemporaneous-objection requirement on a represented defendant is inconsistent with settled rules for assessing Sixth Amendment

violations, which allow for development of such claims as

part of postconviction proceedings. Many federal and

state courts (including New York) require defendants to

bring ineffective assistance claims in such a manner. See

Martinez v. Ryan, 566 U.S. 1 (2012); People v. Maffei, 150

N.E.3d 1169 (N.Y. 2020). And these proceedings “often

require a[ ] hearing,” where—just like the hearing in this

case—the parties may call witnesses and present documentary or other evidence. Osagiede v. United States,

543 F.3d 399, 408 (7th Cir. 2008). Such proceedings offer

defendants a meaningful opportunity to supplement the

record, and are precisely when a defendant would typically raise ineffective-assistance claims.

If, for instance, counsel “promise[s] the jury that it

[will] hear” a defendant “testify to his innocence,” and

“then fail[s] to deliver on that promise,” defendant does

not lose his right to press an ineffective-assistance claim

because he does not contemporaneously object. U.S. ex

rel. Hampton v. Leibach, 347 F.3d 219, 260 (7th Cir. 2003).

To the contrary, such claims are properly pursued

through post-conviction hearings, id. at 244–45, and can,

if established, be “prejudicial as a matter of law,” Anderson v. Butler, 858 F.2d 16, 19 (1st Cir. 1988).

Nor, for that matter, would a client need to expressly

object when counsel “fail[s] to . . . call” alibi “witnesses.”

Commonwealth v. Stanley, 632 A.2d 871, 872 (Pa. 1993).

Such conduct, seemingly “incomprehensible” on its face,

requires “a hearing” so that the trial court may “receive

evidence on the matter.” Id.

The Court has, furthermore, adopted a similar approach to rights, like the right to maintain innocence,

which “are not strategic choices about how best to achieve

a client’s objectives,” but “about what the client’s objectives in fact are.” McCoy, 138 S. Ct. at 1508 (emphasis in

original). Under Roe v. Flores-Ortega, 528 U.S. 470

(2000), which concerns the right to decide whether to take

an appeal, lower courts must “take into account all the information counsel knew or should have known,” not just

information presented in court on the record. Id. at 480

(emphasis added). That information, considered on the

whole, informs the structural error calculus. Garza, 139

S. Ct. at 742. There is no reason, given Flores-Ortega,

why courts should not conduct the same diligent search

for a McCoy claim. Whether counsel moves unilaterally

to concede guilt or to forfeit an appeal, both fall under an

individual’s “[a]utonomy.” McCoy, 138 S. Ct. at 1508.

Both should be zealously guarded.

III.

THIS CASE IS AN IDEAL VEHICLE.

A. Questions surrounding application of McCoy

are important and recurring.

More than seventy-eight million Americans live in

states where the state courts do not require an express

objection, such as California, Oregon, and Texas. Had Mr.

Alvarez been tried in those states, his repeated and consistent assertions of innocence, both in court and out of

court, would have been enough. The Sixth Amendment,

in these areas, does not require a defendant “to object

with the precision of an attorney”; it rests, instead, on examining “the fundamental objective of the defendant, as

expressed to defense counsel.” Turner, 570 S.W.3d at

276; Thompson, 433 P.3d at 777.

On the other side of the ledger, states requiring an express objection—now including New York—are home to

an almost equal number of eighty million Americans.

If federal courts are added to the mix, the varied approaches become even more dizzying. Pointedly, had Mr.

Alvarez’s case come up in New York federal court, the

outcome might have been different. See Abboud, 2022 WL

3595055, at *4 (counsel “needed to discuss th[e] decision

[to concede guilt] with [the defendant].”). Likely too if he

had been proceeding in the Fourth or Eighth Circuits—

but not the Fifth or Eleventh Circuits. Without further

clarification, the protection “of a defendant’s Sixth

Amendment-secured autonomy” will turn on their state of

residence and court of prosecution. McCoy, 138 S. Ct. at

1511.

B. The McCoy issue here is well-preserved, clear,

and outcome-determinative.

This case provides the Court an appropriate and suitable vehicle to clarify McCoy. Unlike other matters,

which might have been clouded with procedural issues or

retroactivity questions, see Harvey v. Florida, No. 21-653,

the question presented—whether McCoy requires a defendant to personally lodge a contemporaneous objection—was preserved and passed upon before the New

York Supreme Court and its Appellate Division. Pet. App.

3a. All motions were timely filed; no issues were waived

or forfeited. Whether McCoy requires a contemporaneous on-the-record objection is thus outcome determinative. There is no dispute that defense counsel conceded

guilt—he expressly did so in closings. Further, harmless

error is not in play here as a McCoy violation is structural

error. McCoy, 138 S. Ct. at 1511. Hence, any finding that

no on-the-record objection was required would require reversal of the judgment.

This appeal also highlights the precise unfairness that

this Court sought to prevent in McCoy. Not only did Mr.

Alvarez repeatedly insist on his innocence and testify to

that effect at trial, but—in order to assert his innocence

at trial—he turned down a favorable plea deal (which

would have resulted in a far-shorter sentence than the one

he later received after counsel conceded guilt). After doing so, Mr. Herlich violated his autonomy and effectively

pled guilty for him at trial. That is precisely the result

McCoy sought to avoid.

One final note. That Mr. Herlich requested, without

objection from Mr. Alvarez, inclusion of third-degree assault as a lesser-included offense, does not preclude review. If anything, it makes review all the more necessary.

As a factual matter, Mr. Alvarez—corroborated by Mr.

Herlich’s own statements—understood that Mr. Herlich

was doing so only as an “alternative argument.” Pet. App.

57a. That is not what happened.

And as a legal matter, Justice Alito pinpointed just

such a scenario as a question left open by McCoy: “What

about conceding that a defendant is guilty, not of the offense charged, but of a lesser included offense?” 138 S.

Ct. at 1516 (Alito, J., dissenting). “Where the evidence

strongly supports conviction” of a more onerous charge,

“is it unconstitutional for defense counsel to make the decision to admit guilt” to “simple assault”? Id. at 1517.

New York answered in the negative. But California and

other jurisdictions have gone the other way, holding that

“the decision whether to concede . . . even a lesser crime .

. . is a decision that necessarily belongs to the defendant.”

People v. Bloom, 508 P.3d 737, 761 (Cal. 2022); cf. State v.

Horn, 251 So. 3d 1069 (La. 2018) (“[T]hat defendant instructed his attorney to admit guilt to this different crime

as part of his defense objective did not give defense counsel the authority to admit guilt to [other] lesser-included

crimes.”).

Mr. Alvarez maintained his innocence when he was arrested, before a grand jury, to his first and second lawyers, before the jury, and to the court during sentencing.

He did everything but stand up in open court and expressly object at the time of concession. This case asks

whether, under McCoy v. Louisiana, that last action is required. The Court should safeguard the Sixth Amendment rights of all defendants and make clear it is not.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,