Comments on: Today’s Opinion in United States v. Gonzalez-Lopez

By: Norma Chase

Norma Chase — Fri, 28 Jul 2006 22:38:57 +0000

I wonder what would have happened if the Court of Appeals had affirmed the conviction. Would certiorari have been granted?

By: valpodogs

valpodogs — Tue, 27 Jun 2006 22:17:35 +0000

Federalist: Isn’t the government already subsidizing the indigent defendant? I understand your point that the government doesn’t have to pay for the most expensive attorney, but now the accused has a constitutional right to “be defendend by counsel he believes to be best.”

My point is that the language in Gonzalez-Lopez is overbroad and not warranted by a simple reading of the Sixth Amendment. The Sixth Amendment provides for the “assistance of counsel” not the constitutional right to “be defendend by counsel he believes to be best.” But perhaps there is no other way to stop a judge from acting in the way the Magistrate judge did in this case.

By: DJMIII

DJMIII — Tue, 27 Jun 2006 18:33:15 +0000

As just a mere trial attorney in California, I am constantly amazed at the inability of the trial level Court to just “do the right thing”. “Gonzales-Lopez” being just the latest example of trial court tyranny.
That our Justice Alito wishes to require the defense to invent the prejudice is just a symptom of the tryanny below, and the drive to “make it OK” to do the wrong thing…
I have some faint hope that Supremes, having choosen to decide this case on fundemental Constitutional grounds, will draw more lines in the sand and provide the hard and fast rules that trial courts must operate under…and leave the mental gymnastics to the State Supreme Courts. (read…”Crawford/Davis” testimonial rules are unworkable)
My compliments to counsel and amicus.

By: federalist

federalist — Tue, 27 Jun 2006 15:29:44 +0000

Valpodog: the answer is simple. Everyone has the First Amendment right to publish a newspaper, but that doesn’t mean that the government has to subsidize me if I don’t have the means. And Gideon doesn’t extend as far as giving everyone Clarence Darrow.

By: Screwloose

Screwloose — Tue, 27 Jun 2006 14:19:44 +0000

Scalia tells us the counsel clause will be treated like the confrontation clause. As in Crawford-then-Davis, there’ll soon be only a singular core value left to it, too. Alito wants to speed it up by creating a new exception in order to hasten the swallowing of the rule; Scalia indicates that’s not necessary, the exceptions now available suffice to do that. Ditto the right-without-a-remedy for the fourth amendment case this term. The Bill of Rights will be constricted to a historic document; the U.S. Constitution will be history, at least insofar as state criminal defendants are concerned. IMHO, Screwloose

By: valpodogs

valpodogs — Tue, 27 Jun 2006 14:03:45 +0000

Scalia recognizes that the Sixth Amendment guarantees the “accused be defendend by counsel he believes to be best.” Scalia also states this right is not extended to indigent defendants. My question is why not? What logical distinction prevents this broad language from being expanded further?

To me it seemed like the Magistrate Judge was acting arbitraily, and likely abused his discretion, but does that abuse of discretion necessarily have to rise to the level of a constitutional violation? I believe this opinion must be read narrowly and be limited in its application. Section IV tries to do just that.

By: federalist

federalist — Tue, 27 Jun 2006 03:24:26 +0000

Daniel, I agree. Alito’s opening gambit seems to fly in the face of Marshall’s idea that “it is a Constitution we are expounding”. I mean, c’mon, are we really supposed to believe that the Founders were making such a fine distinction? Also, it seems to me that pre-Gideon, the only way the right to assistance of counsel makes sense is that you get the counsel at trial (not behind the scenes) that you can afford, subject, of course, to considerations not present in this case. That Gideon went beyond the text is no reason to denigrate the text. Third, it’s not like this issue is going to pop up again and again, so there aren’t a lot of cases that are going to be overturned on this basis (that’s an issue with some of the ineffective rep cases and per se reversal). Fourth, the remedy proposed by the dissent seems subject to rank speculation–and besides, the right of counsel is not just the right of effective rep, but also one’s autonomy in choosing how one will defend oneself against deprivation of liberty. Fifth, it is difficult to see how someone gets a reversal for a Faretta violation, and not one here.

I think that one unconscious genesis of some of the conservative opposition to cases like Crawford, Apprendi and this one is that the rights of criminals have been expanded by liberals on the courts and that the Justices may not want further expansion, even if the “expansion” seems dictated by the Constitution, e.g., Apprendi.

By: Daniel

Daniel — Tue, 27 Jun 2006 02:03:02 +0000

I must say that I don’t understand the dissent in this case at all. It almost seems like a dissent simply for the sake of dissent. Alito’s distinction between the person and the advice simply doesn’t hold water at the most superficial level. What lawyers do is give legal advice. As a matter on physical practice, you can’t seperate the person from the advice. If so, why have lawyers at all. One simply needs to invent a legal advice dispensing machine. Put a quarter in the slot and viola! problem solved. That is sheer nonsense. And I mean complete and utter nonsense.

Lawyers do law. Take away the lawyer and you take away the law.