MERCY IS FOR THOSE THAT DO NOT DESERVE IT

In August I represented Robert McCoy, who was charged with killing his mother-in-law, father-in-law and sixteen year-old step son Gregory Colston. Gregory had a 3.8 GPA, and a scholarship to college. A month before the start of the trial, the State of Louisiana offered McCoy the opportunity to plea to life without benefit of probation or parole. He rejected it. A week before trial McCoy asked the court to terminate my representation, which the court refused to do. McCoy had fired his original legal team and was representing himself, when I took the case.

In my opening statement I told the jury that no reasonable person can listen to the evidence that the state will present and reach any other conclusion than Robert McCoy caused the death of the three victims. Although, McCoy had been found competent to stand trial in an earlier proceeding, I argued that Robert McCoy was insane.

The State presented to the jury a police cruiser video of Robert McCoy vehicle fleeing the murder scene. The video showed someone who looked like McCoy running from the vehicle. The state played a chilling 9-11 call from his mother-in-law begging for her life and repeating "Robert she ain t here", a reference to her daughter. The state played a video from Wal-Mart showing McCoy purchasing bullets the day of the crime. McCoy was captured after a nation wide manhunt in Idaho with the murder weapon in his possession. If that was not enough, two witnesses testified that he told them immediately after the crime that he had killed someone.

During the trial McCoy repeatedly shouted out in court that I was helping the State railroad him. He testified that the Police conspired to set him up because he reported they were selling drugs. His explanation for the murder weapon being found on him, was that the Idaho Police had conspired with the Bossier Parish Police to plant the weapon on him. His last statement to the jury was "I am not a monster."

At the close of the guilt phase I pointed to McCoy’s own bizarre behavior and argued that he was insane and the jury should give him life. A jury of ten white and two African-Americans deliberated four hours and found McCoy guilty of capital murder.

At the penalty phase McCoy estranged wife testified that he had kidnapped her three months before the murders and put a knife to her throat and threatened to kill her. She alleged that their two year-old daughter was lying at her feet during the attack. And the testimony of losing her mother, stepfather and son was gut wrenching.

I called a psychologist who testified that Robert McCoy suffered from severe personality disorder and that it was a contributing factor to his committing the murders. My final statement to the jury was "Mercy is given to those that do not deserve it". The jury came back after four hours and asked the court when was it appropriate to declare they were deadlocked. The judge sent them back in to deliberate and two hours later they came back with a death verdict.

The appellate courts over the next decade will decide whether Robert McCoy received a fair trial. But this trial changed everyone in the courtroom from the twelve jurors, the judge, the attorneys, to the bailiffs. It was the most important trial of my career. Yet I take no professional joy from it.

Everyone in that courtroom will live with the fact that we participated in the State condemning an individual to death. As a lawyer you learn to walk away from a case when it is over with – for this case there is no walking away. The fact that the evidence in McCoy's case was so overwhelming does not change that fact.

That is why I am so troubled by the execution of Troy Davis. The state of Georgia killing Troy Davis on the testimony of shaky eyewitnesses and no DNA evidence should have never happened. Whether Troy Davis committed the crime of murder or not, there was too much uncertainty to allow his execution.

After twenty years of criminal defense work, I have lost my moral opposition to the death penalty. Civil society is too fragile. There are crimes so heinous, that you abdicate your right to live among us. However, Did McCoy's mental illness play a significant role in the murders? The state sanctioned killing of a human being forces the entire nation to travel the road of moral ambiguity.

For several weeks at the conclusion of Robert McCoy's trial, I was in mourning. I mourned the sheer horror that a death penalty trial impose on all of its participants. But what I was really mourning was the human loss, particularly, Gregory Colston. The African-American community is too fragile to lose young men with 3.8 GPA's and scholarships to college.

But I also mourn Troy Davis. We may have put an innocent man to death. That uncertainty is too high a price to express society’s outrage.