Today’s Filing
This merits brief was filed today in United States v. Gonzalez-Lopez, which presents the question whether the denial of a criminal defendant’s Sixth Amendment right to be represented by counsel of choice requires automatic reversal of his conviction. We serve as counsel to the respondent, although credit for the brief goes principally to Jeff Fisher (who will argue on Gonzalez-Lopez’s behalf next month), Pam Karlan, and the three Stanford students — Cody Harris, Kimberley Morris, and Eric Tuttle — who worked on it.
Having read both briefs, it appears as though the government has an uphill battle.
If, as must be conceded (unless Faretta and MaKaskle were wrongly decided), the denial of a defendant’s so-called Faretta right to represent him/herself requires automatic reversal, the denial of his/her clear Sixth Amendment right to be represented by counsel of choice would seem also to be structural error — Both rights having their footing in concepts of “autonomy” and respect for the defendant’s freedom of “choice.”
Indeed, if as the government states, the Faretta self-representation right does not derive from the Assistance of Counsel Clause, but rather, was based “more broadly from this country’s history, the structure of the Sixth Amendment as a whole, and notions of respect for individual autonomy,” it would appear that the right to choose one’s attorney has a more direct connection to the actual text of that clause. And, thus, is paramount, not subsidiary, to the Faretta right –the denial of which results in per se reversal.
Perhaps a re-examination of the constitutional basis for the Faretta right is in order?
Comment by paul — March 29, 2006 @ 6:20 pm
I’d agree with Paul. This type of case would seem ripe for a Scalia opinion similiar to Crawford et alia. It will be interesting to see where Alito and Roberts go.
Comment by federalist — March 31, 2006 @ 12:22 am