Does McCoy apply where the defendant made clear to counsel the objective of the defense is to maintain innocence, only for counsel to then concede guilt, without the defendant then contemporaneously objecting to the trial court

QUESTION PRESENTED In McCoy v. Louisiana, 138 S.Ct. 1500 (2018), the Court recognized as sacrosanct the defendant’s autonomy over the objective of the defense, and recognized counsel cannot contradict a defendant’s objective to maintain innocence. As in McCoy, Roger Epperson had been charged with the murder of people close to him (his father’s best friend and wife) and, as in McCoy, Epperson desired to maintain innocence not just of the charged offenses (legal innocence) of murder, robbery, and burglary, but also of any criminal activity that led to the crimes perpetrated against the victims (factual innocence). Epperson, who was not the initial suspect, was arrested despite other individuals having confessed to the murders in factually accurate and specific detail. Epperson has consistently maintained his innocence since arrest. Trial counsel was well aware of Epperson’s objective to assert his factual innocence at trial. Epperson told his counsel that he wanted them to fully maintain his factual innocence at trial and to not concede any activity that led to, or involved, the crimes perpetrated against the victims. At a post-conviction evidentiary hearing on a separate issue, trial counsel confirmed that the plan was to present an innocence defense that Epperson had nothing to do at all with the criminal activity. Yet, to Epperson’s surprise, counsel did not follow through with that plan at trial. Trial counsel failed to contest the intent element of the charged offenses, but conceded the actus reus, eliciting testimony that Epperson drove the getaway car and did not enter the victims’ home because he knew the victims. Trial counsel also conceded that during closing argument. Following McCoy, Epperson raised the issue in state court. The Kentucky Supreme Court addressed the McCoy claim on its federal constitutional merits, but held the claim failed for two reasons. First, by a 4-3 vote, the Kentucky Supreme Court held that McCoy requires an onthe-record contemporaneous objection to the trial court and thus Epperson’s claim fails because he first raised the McCoy issue in a post-trial proceeding. The Kentucky Supreme Court did so despite the Court having granted, vacated, and remanded in light of McCoy, Hashimi v. United States, 139 S.Ct. 877 (2018), even though Hashimi had not made an on-the-record objection to counsel conceding guilt during closing argument. Second, the Kentucky Supreme Court held that McCoy applies only when counsel concedes the entirety of the charged offense in contradiction to the defendant’s objective to maintain legal innocence, but does not apply when counsel concedes guilt of an element of the offense when the defendant’s objective was to maintain factual innocence. This second aspect is a matter the McCoy dissenting Justices recognized is difficult but has important consequences. Courts across the country have struggled i with this difficult issue, and are split on how to interpret and apply McCoy in these circumstances, with some reaching the same conclusion the Kentucky Supreme Court reached, but many reaching the opposite conclusion. This gives rise to the following questions presented: 1) Does McCoy apply where the defendant made clear to counsel the objective of the defense is to maintain innocence, only for counsel to then concede guilt, without the defendant then contemporaneously objecting to the trial court, as Alabama, California, Florida, Georgia, Massachusetts, Minnesota, Oregon, Texas, Wisconsin, and the United States Court of Appeals for the Fourth and Eighth Circuits Circuit have held, or does McCoy require a defendant to make a contemporaneous on-the-record objection before the trial court, as Kentucky, Michigan, and Oklahoma have held? 2) Does McCoy apply where counsel conceded guilt of an element of an offense despite the defendant’s objective to maintain factual innocence of criminal activity, as California, Oregon, the United States District Court for the Northern District of Il