ROBERT MCCOY had a plan. Facing murder charges in the deaths of his estranged wife’s mother, stepfather and teenaged son in Louisiana, Mr McCoy claimed he was out of town in Houston, Texas when the three were slain. All the evidence of Mr McCoy’s guilt—a Walmart receipt for bullets; the murder weapon; a 911 call from one of the victims pleading with “Robert”; a white Kia getaway car—had been planted by vindictive police officers, the story went. The police were out for revenge, Mr McCoy explained, because he had accused some members of the department of trafficking drugs. 

This did not persuade Mr McCoy’s public defenders, so he decided, for a time, to go it alone. But soon the defendant thought better of it and hired a family acquaintance to represent him. The new advocate, Larry English (pictured), found the innocence fable no more credible, but Mr McCoy was no less adamant. After repeatedly clashing with his client, Mr English told him his legal strategy would be to save him from execution, not to get him off scot-free. “I believe that my client is suffering from some severe mental and emotional issues”, he said at a hearing in 2011, “that has an impact upon this case”. Pursuing the innocence tack is not “in his best interest”. Instead, Mr English told the judge he had “an ethical duty” to ignore his client’s favoured defence. “[W]hether he accepts it or not, I’m one of the few people that may be standing between him and a death sentence.”

Over the vocal objections of his client, Mr English proceeded to tell the jury that Mr McCoy “was the cause of these individuals’ deaths” but since he is “crazy” and “lives in a fantasy world”, deserved a measure of leniency in sentencing. The fraught gambit did not pay off: the jury sentenced Mr McCoy to die.

The question the Supreme Court addressed on January 17th in McCoy v Louisiana is whether Mr McCoy’s Sixth Amendment right to “the assistance of counsel” was vindicated by this experience. Justice Neil Gorsuch, the court’s new member of the conservative wing, seemed to think the answer was no, at least for a “competent, rational, thoughtful individual”. “Can we even call it assistance of counsel”, he wondered, when “a lawyer overrides that person’s wishes?” Justice Sonia Sotomayor, perhaps the most liberal justice, put the idea starkly: “People can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story”. It was conceivable, Justice Elena Kagan said, that Mr McCoy’s primary aim may not have been to avoid execution. Perhaps his “paramount goal is to insist until my last breath that I didn't kill my family members”.

If, as it seems, this sentiment attracts a majority of the nine justices, Mr McCoy may win a new trial assisted by a lawyer who honours his claim to innocence. But many justices, including John Roberts, the chief, had tough questions for Seth Waxman, Mr McCoy’s new lawyer, regarding how far the principle could or should go. Does a defendant have a constitutional right to direct how his lawyer handles every element of the trial? No, Mr Waxman replied, reflecting on his 40 years representing death-row inmates, but it is clear that “in the real world, what defendants object to” is lawyers who insist on telling jurors that they are guilty. People like Mr McCoy have “an autonomy”, he said, a “dignitary right”, to say “I didn’t do this”.

Arguing for Louisiana, Elizabeth Murrill tried to craft a narrow exception to the rule that lawyers should advocate for their clients’ expressly stated wishes. In capital cases where “the client wants [his lawyer] to pursue...a futile charade” that is highly likely to result in his execution, Ms Murrill claimed, it should behoove the attorney to set aside that strategy in favour of a wiser legal course. In effect, Ms Murrill was arguing for what Sir Isaiah Berlin, a 20th-century British political philosopher, called “positive freedom”, the liberty to be one's own master and to be held by others to live up to one’s “higher nature”. In these terms, Mr English was pushing his client to live up to his “rational” self, and to pursue the enlightened path of saving himself from the gallows. Berlin associates positive freedom with “coercing others for their own sake”, whereas “negative freedom” is characterised by the absence of constraints: individual autonomy to “act unobstructed by others”.

It seems that negative liberty is likely to win the day at the Supreme Court: Mr McCoy may get a chance to spin out his somewhat wild innocence story with the assent and assistance of a new lawyer in front of a new jury. If the ultimate result is the same—being shipped off to death row—at least Mr McCoy will have had the satisfaction of a trial “in which his lawyer acts as his advocate and not his prosecutor”, as his final brief to the justices put it. If, then, Mr McCoy is again convicted and condemned to die—which, based on the evidence against him, is quite likely—he will have done it his way.