Comments on: Tuesday’s Argument in U.S. v. Gonzalez-Lopez

By: Steve

Steve — Mon, 17 Apr 2006 14:09:15 +0000

As a former Third Circuit law clerk, I’d like to point out that the defendant/respondent (or his counsel) continue to misrepresent the Third Circuit’s decision in United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996), as having definitively held that arbitrary denials of the right to counsel of choice are per se reversible error. Voigt simply restated the law of the Third Circuit as explicated in an earlier opinion by Judge Becker in a habeas case.

By: BruceM

BruceM — Sun, 16 Apr 2006 06:03:16 +0000

From that factual summary it seems pretty clear this Defendant was prejudiced — unlike the lawyer of his choice, the lawyer he was provided with was unable to wean out the government’s star witness’ lies, thus severely undercutting the government’s case. So even if harmless error analysis were to be used here (and it should not be), it is quite clear that there was harm as the lawyer permitted to represent the Defendant (as opposed to the D’s preferred lawyer) was unable to effectively cross-examine the government witness.

This seems to be a case of grossly unethical prosecutors who feel the defendant has no right to poke holes in their case, and feel entitled to appellate relief to prevent the defendant from doing so–even if it means depriving said defendant of his choice in counsel.

On a side note, I feel whenever a government witness who has been promised 5K1.1 or rule 35 credit off a sentence admits, under cross-examination, to lying so as to bolster the government’s case (to get the credit), the defendant against whom he was testi-lying should be immediately ordered acquitted, and the government should be sanctioned monetarily. Not sure what should happen to the witness who cracked under cross.

There is no greater cause of and incentive for perjury–against a man facing the loss of his liberty, no less–than government promises of sentence reductions to convicted/admitted criminals. 5K1.1 and Rule 35 and the universe of snitching they create are so far against public policy that they make a mockery of the entire criminal “justice” system.

By: Peter G

Peter G — Fri, 14 Apr 2006 23:07:20 +0000

Simon: By "not a member of the bar" I believe the Court in Wheat meant "not licensed to practice law (at all)," and did not mean "not admitted to practice before that particular court." I doubt very much that whatever the Court holds in this case, it will say that the Sixth Amendment does not circumscribe the authority of a federal district judge in a criminal case to enforce a local pro hac vice rule. Lots of local admission rules go far beyond setting "reasonable standards" and require a local office, or that a phv applicant not be a resident of the state in which the court sits, and the like. These provisions are of very dubious validity as applied to criminal cases, both under the Sixth Amendment (from the client's point of view) and (as to the lawyers themselves) under the Privileges and Immunities Clause. For example, why should a lawyer admitted to practice before the Supreme Court and before the Fifth Circuit, who has her office in Dallas and is admitted to the N.D.Tex., be denied the right to represent a defendant in the E.D.Tex.? Or, I should say, how can the defendant indicted in E.D.Tex., who wants to be represented by that Dallas lawyer, validly be denied that right? This case is not about a New York lawyer who wants to file a tort suit in the state courts of Indiana.

By: Simon

Simon — Fri, 14 Apr 2006 20:55:31 +0000

Doesn't Wheat v. United States say that the "right to choose one's own counsel is circumscribed in several important respects. Regardless of his persuasive powers, an advocate who is not a member of the bar may not represent clients (other than himself) in court" (Wheat, 486 U.S. at 159)? I'm not sure that I understand how an unlimited right to choose one's own counsel can square with what I had understood to be the power of courts to set reasonable standards for practise before themselves, and regulate exceptions to those rules?