Crawford v. Mississippi: SCOTUS OK’s Execution Despite Innefective Assistance of Counsel
Do we execute prisoners despite constitutional defects in the trial? The Supreme Court gives a silent answer in Crawford v. Mississippi.
If you tell your lawyers not to admit you did it—and they do it anyway—does the Constitution guarantee you a new trial? And if that constitutional rule came after your case was final, can it still save your life? On October 15, 2025, the Supreme Court declined to say. Supreme Court
The Order That Spoke Volumes by Saying Nothing
In No. 25–385 (25A378), Charles Ray Crawford v. Mississippi, the Court denied a stay of execution and denied certiorari. There is no majority opinion—only an order—yet the consequences are anything but routine.
Justice Sotomayor, joined by Justices Kagan and Jackson, dissented, arguing the Court should have (1) stayed the execution and (2) granted review to resolve a square, life-or-death question of retroactivity stemming from McCoy v. Louisiana (2018). The dissent opens starkly: Crawford “will be executed tonight” for a crime his own lawyers told the jury he committed, despite his express instructions not to concede guilt. The Court let that execution go forward without resolving whether McCoy’s rule applies to him. Supreme Court
The McCoy Principle: “I’m Innocent” Is the Defendant’s Call—Not the Lawyer’s
In McCoy v. Louisiana, the Supreme Court held that when a defendant explicitly and unequivocally insists on maintaining innocence, defense counsel may not override that decision by conceding guilt as a strategy. The Court grounded this in the Sixth Amendment’s autonomy values: it is the accused—not the attorney—who decides the objective of the defense. Because lawyer-over-objection concessions corrupt the adversarial process at its core, McCoy classified the violation as structural error—not subject to harmless-error review and ordinarily requiring a new trial. Supreme Court+1
Justice Sotomayor’s dissent applies those same premises to Crawford’s trial. Crawford repeatedly told his lawyers—and the court—that his goal was to maintain innocence and force the State to prove every element. His lawyers told jurors, from voir dire through closing, that “the what of this case is not in question” and that Crawford alone was responsible for the killing. That is textbook McCoy territory. Supreme Court+1
The Retroactivity Fight: Old Rule Applied or New Rule Announced?
Why didn’t Crawford simply win under McCoy? Timing. His convictions were final long before McCoy was decided. That tees up the doctrine most law students learn as “Teague retroactivity,” distilled in recent terms by Chaidez v. United States (2013) and Edwards v. Vannoy (2021):
If a decision merely applies existing law to a new factual circumstance (an “old rule”), it applies retroactively.
If it announces a “new” rule—and it’s procedural, not substantive—it generally does not. Supreme Court
The dissent identifies a genuine split. Several courts have held McCoy is simply an application of longstanding Sixth Amendment principles (think Faretta, Jones v. Barnes, and Brookhart), and therefore retroactive. The California Court of Appeal and a Connecticut trial court are cited as examples. Mississippi’s high court came out the other way, treating McCoy as a nonretroactive, new procedural rule. A Fourth Circuit panel suggested (without deciding) that McCoy “might” be new. That is a classic circuit/state split—made all the more urgent because a man’s execution hinges on the answer. Supreme Court
Mississippi’s Position Shift: A Concession at the Eleventh Hour
Here is the twist that makes the Court’s denial especially hard to square with its usual stay factors. In Washington, Mississippi told the Supreme Court that McCoy is retroactive because it applied an old rule; if that is right, Crawford’s claim is meritorious and structural error should mean automatic reversal. The dissent puts this point plainly: “Mississippi now correctly concedes before this Court that McCoy is retroactive because the rule it applied is not new.” Yet the Court still declined to intervene. Supreme Court
“Adequate and Independent” State Grounds? Not This Time
When state courts deny relief on adequate and independent state-law grounds (e.g., timeliness), the Supreme Court often cannot review. But the dissent explains why jurisdiction existed here. The Mississippi Supreme Court’s short order denied relief because McCoy was not retroactive—a federal-law question, not a state-law one. And while Mississippi also noted that Crawford waited seven years after McCoy to file, the state law has long recognized no firm deadline where an intervening decision qualifies, and the state court’s order didn’t clearly rest on delay alone. Bottom line: the case was reviewable. Supreme Court+1
Why a Stay Was Warranted
The Court’s stay standard (from Barefoot v. Estelle) asks whether there’s a reasonable probability certiorari will be granted, a significant possibility of reversal, and a likelihood of irreparable harm without a stay. Irreparable harm in a capital case is not a close question. The split on retroactivity and Mississippi’s concession on the merits made the other two prongs strong. The dissent also recognizes the Court’s aversion to last-minute litigation but explains why delay isn’t disqualifying here: Mississippi law didn’t impose a deadline in this posture and the equities cut toward adjudicating a substantial constitutional claim before an execution. Supreme Court
The Stakes: Defendant Autonomy Isn’t a “Technicality”
Some will be tempted to frame this as a mere technical procedural dispute. It isn’t. The core question is who controls the objectives of the defense—the accused whose liberty or life is on the line, or the lawyer. McCoy places that choice where the Constitution has always located it: with the defendant. When counsel tells the jury “he did it” over the client’s explicit objection, the trial is no longer the defendant’s trial. That is why McCoy calls the violation “structural,” why the Model Rules have long required lawyers to abide by the client’s objectives, and why the dissent stresses that a jury is “almost certainly” swayed by counsel’s concession. Supreme Court
Justice Sotomayor also addresses an argument sometimes floated in these cases: if the defense pursued insanity, counsel didn’t technically “concede guilt.” That “hair-splitting” fails for two reasons the dissent highlights. First, McCoy protects the defendant’s right to assert innocence—not merely to obtain a technical acquittal. Second, the difference between “not guilty” and “not guilty by reason of insanity” is profound—one is an exoneration; the other can lead to confinement in a state hospital. The choice belongs to the defendant. Supreme Court
What the Court’s Silence Signals
By denying a stay and declining review, the Court left intact a state ruling that treats McCoy as nonretroactive and permitted an execution scheduled for that evening to proceed. That outcome sends a message to lower courts and to defense lawyers alike: absent a definitive Supreme Court holding, retroactivity of McCoy will continue to depend on where you are and which judge you draw. That kind of postcode constitutionalism invites precisely the sort of arbitrariness the Court usually strains to avoid—especially in capital cases. Supreme Court
Practical Implications for Lawyers and Courts
For trial lawyers:
Memorialize client objectives. If your client insists on maintaining innocence, document it—letters, on-the-record colloquies, sworn declarations.
Don’t “strategize” around autonomy. McCoy makes the autonomy choice nondelegable; respect it even if you think an insanity path is “better.”
Protect the record. If a trial judge resists, make clear contemporaneously that counsel cannot concede guilt over the client’s objection—period.
For appellate and postconviction counsel:
Lead with retroactivity under Chaidez. Frame McCoy as an “old-rule” application of Faretta/Jones/Brookhart to a new fact pattern, not a new procedural rule.
Use state-law vehicles creatively—but anchor in federal law. When state statutes create “intervening decision” exceptions, emphasize that whether a rule is “new” (and thus retroactive) is itself a federal determination.
Show structural harm. Build the record to demonstrate that counsel’s concessions undermined the defense’s objective, separate from trial evidence strength.
For courts:
Resolve the split. Trial courts, intermediate courts, and state high courts should squarely address retroactivity using the Supreme Court’s modern retroactivity cases, not avoid the question with procedural smokescreens. Where a death warrant is pending, the safer course is to stay and decide, not decide by doing nothing.
A Narrow Doorway for Future Petitions
Even in jurisdictions skeptical of McCoy retroactivity, petitioners may have a narrow doorway: where the record shows the defendant explicitly and contemporaneously objected, and counsel plainly conceded guilt, the claim most closely mirrors McCoy itself. The dissent in Crawford spotlights how unusual and clean the record is: letters from Crawford, on-the-record statements, and explicit concessions by counsel. Those facts made this case an ideal vehicle. Supreme Court
The Court Should Have Taken This Case
The Supreme Court often grants review in capital cases to settle important questions even without a crystallized split. Here, the split is real, the merits appear strong (by Mississippi’s own concession), and the harm is irreversible. The silence isn’t neutral—it tilts the law toward nonretroactivity by default and leaves defendants’ autonomy rights contingent on geography. Whatever one’s views about capital punishment, who owns the defense is a constitutional question that should not turn on luck. Supreme Court
Bottom Line
McCoy protects a defendant’s right to insist on innocence; violating that right is structural error.
Whether McCoy applies retroactively is unsettled—and outcome-determinative for people like Crawford.
Mississippi conceded McCoy is retroactive, but the Court declined to intervene, letting an execution scheduled for that night go forward while the question remains unresolved. Supreme Court+1
Footnotes
[1] Crawford v. Mississippi, No. 25–385 (25A378) (U.S. Oct. 15, 2025) (order denying stay and certiorari) (Sotomayor, J., dissenting).
[2] McCoy v. Louisiana, 584 U.S. 414 (2018).
[3] Chaidez v. United States, 568 U.S. 342, 347–48 & n.3 (2013).
[4] Edwards v. Vannoy, 593 U.S. 255, 273 (2021).
[5] Faretta v. California, 422 U.S. 806, 834 (1975).
[6] Jones v. Barnes, 463 U.S. 745, 751 (1983).
[7] Brookhart v. Janis, 384 U.S. 1, 7 (1966).
[8] In re Smith, 49 Cal. App. 5th 377, 390–92, 263 Cal. Rptr. 3d 63, 73–74 (2020) (retroactivity recognized).
[9] Jan G. v. Commissioner of Correction, 2023 WL 8431827, *18–20 (Conn. Super. Ct. Nov. 20, 2023) (retroactivity recognized).
[10] Smith v. Stein, 982 F.3d 229, 234 (4th Cir. 2020) (suggesting McCoy might be a new rule).
[11] Crawford v. State, 2025 WL 2675597, *1 (Miss. Sept. 12, 2025) (holding McCoy not retroactive).
[12] United States v. Read, 918 F.3d 712, 719–21 (9th Cir. 2019) (rejecting the “no concession”/insanity hair split).
[13] Barefoot v. Estelle, 463 U.S. 880, 895 (1983) (stay standard).
[14] Bell v. State, 66 So. 3d 90, 93 (Miss. 2011) (no fixed deadline when an intervening decision applies).
[15] Gomez v. United States District Court, 503 U.S. 653, 654 (1992) (per curiam) (late-stage stay disfavored).
[16] Kyles v. Whitley, 514 U.S. 419, 422 (1995) (duty to search for constitutional error with painstaking care in capital cases).
[17] Shinn v. Martinez Ramirez, 596 U.S. 366, 375 n.1 (2022) (capital case exception discussion).
About the Author
Ronald W. Chapman II is a Marine Corps veteran, nationally recognized attorney, and author focused on the collision of healthcare, civil liberties, and federal power. He has represented clients in high-stakes matters nationwide and writes to make complex legal issues accessible to professionals and citizens alike. His books—Truth & Persuasion and Fight the Feds—offer practical strategies for navigating investigations and telling winning stories in court. Explore more of his work on his Amazon author page and at ronaldwchapman.com/about.