Today’s Opinion in United States v. Gonzalez-Lopez
Akin Gump summer associate Frank Walsh has this write-up of today’s decision in United States v. Gonzalez-Lopez:
All lawyers are not created equal—and a defendant’s choice of counsel will likely affect every aspect of the trial process. This morning, the Supreme Court recognized the non-fungibility of lawyers and held that the Sixth Amendment encompasses the right to counsel of choice; that is, a defendant charged with a crime has a right to be represented by his first-choice attorney (assuming the choice is a licensed attorney and not court appointed). Justice Scalia, writing for a five-Justice majority, held that a defendant’s choice of counsel was so fundamental to the trial process that any wrongful denial of a defendant’s first-choice representation warranted a per se reversal. For the opinion, click here. For a detailed discussion of the facts of the case, click here.
In January 2003, respondent Cuauhtemoc Gonzalez-Lopez decided to seek out new counsel after he grew disappointed with the representation of his current lawyer, Mr. John Fahle. Gonzalez-Lopez ardently defended his innocence and believed that Joseph Low, a seasoned California defense lawyer with experience defending drug conspiracy charges, could best try the case. Low agreed to represent Gonzalez-Lopez and began preparing for Gonzalez-Lopez’s trial.
The trial magistrate, however, had other ideas and denied Low’s motion for admission pro hac vice. Without Low, Gonzalez-Lopez carried on with his trial represented by Karl Dickhaus, local counsel brought in while Low’s admission was pending to serve as temporary counsel. Low was not allowed to advise Dickhaus in any way and was denied the ability to consult with Gonzalez-Lopez until the last day of trial. Dickhaus was unable to impeach the prosecution’s star witness, and Gonzalez-Lopez was convicted by a jury and sentenced to 292 months in prison.
The Eighth Circuit vacated Gonzalez-Lopez’s conviction, remanding the case for a new trial with Low as counsel. On remand, Low’s deposition of the star witness revealed that he had lied and that Gonzalez-Lopez was not part of a drug deal at all. Following the deposition, the government filed for certiorari.
The Court’s majority opinion begins by describing the right to counsel of choice that the Court articulated in Wheat v. United States and Powell v. Alabama. This right, Justice Scalia argues, is not part of the Sixth Amendment’s “purpose of ensuring a fair trial” but rather derives from the “root meaning” of the amendment. The government had contended that the Sixth Amendment only required a reversal when a defendant showed that the substitute counsel was ineffective because only then was a defendant prejudiced. The Court rejected this contention and found that the Sixth Amendment demanded a new trial whenever a defendant was wrongfully denied his first choice in counsel.
Scalia argued that the denial of the right to choice of counsel constitutes the most serious kind of constitutional mistake. In Arizona v. Fulminante, Court divided constitutional errors into two classes: “trial errors” and “structural defects.” Most constitutional errors are trial errors that occur “during the presentation to the jury,” and courts have discretion in deciding whether these trial errors are harmless or warrant a new trial. Structural defects, however, defy harmless-error analysis because they “affect the framework within which the trial proceeds.” The majority classified the denial of the right to choice of counsel as a structural defect. With this classification, the denial of the right to counsel of choice joined other structural defects like the denial of counsel, the denial of the right to a public trial, and the denial of the right to trial by jury by the giving of a defective reasonable-doubt instruction.
Justice Scalia expounded upon the importance of the right to choice of counsel in the trial process. The choice of counsel is fundamental to an accused’s defense; the defense attorney will conduct a variety of activities including plea bargaining, jury voir dire, negotiations with the government, and the trial itself. Simply put, the erroneous denial of counsel “bears directly on the framework within which the trial proceeds—or indeed whether it proceeds at all.” This sentiment was echoed in the National Association of Criminal Defense Lawyers (“NACDL”) amicus brief; NACDL argued that lawyers are not fungible and a defendant has the right to choose which attorney’s unique skill set would be best suited to the case.
The majority also found serious practicality problems with the government’s suggested approach to reviewing the prejudice of a wrongful denial of choice of counsel. Trial errors before a jury can be reviewed by an examination of the record to find an attorney’s mistakes. On the other hand, the wrongful denial of choice of counsel requires the Court to look “for differences in the defense that would have been made by the rejected counsel,” forcing the Court to “speculate upon what matters the rejected counsel would have handled differently.” The Court’s rationale for not requiring a showing of prejudice in choice of counsel cases is thus two-fold: (1) the error inherently constitutes a fundamentally grave mistake; and (2) an inquiry into prejudice would require analysis of speculative prognostications of what another counsel would have done.
The Court concluded its opinion by acknowledging that there are still several limitations on the right to choice of counsel. First, each state still maintains the right to administer its own bar and deny admission to those who do not qualify. Second, the choice of counsel right does not apply when a defendant relies on a court-appointed lawyer.
In his dissent, Justice Alito argued that the majority “makes a subtle but important mistake” by mischaracterizing the right to choice of counsel as the right “to choose who will represent” the defendant. The Sixth Amendment, Alito argues, actually protects “the right to have the assistance that the defendant’s counsel of choice would provide”; it is not the person but rather the legal advice that the Sixth Amendment protects. A new trial, then, should only be ordered when a defendant can show that the “erroneous disqualification of counsel . . . diminishes the quality of assistance that the defendant would have otherwise received.” That is, the dissent would require a showing of prejudice before overturning a lower court’s decision.
Justice Alito also rejects the majority’s contention that the denial of the right to choice of counsel always warrants a new trial. Fulminante, he argues, did not create a dichotomous categorization of constitutional errors but rather a continuous spectrum with “trial error” and “structural defect” as the two poles. In this conception of the Fulminante paradigm, trial errors were not the only ones subject to “harmless error” review and not all errors “affecting the framework within which the trial proceeds” required reversal. Thus, even if the Court held that a denial of the right to counsel of choice violated the Sixth Amendment, the Court should still engage in “harmless error” review to determine if the appropriate remedy would be a new trial.
The swing vote in this case came from Justice Scalia, who sided with the four traditionally liberal justices. The linchpin in Justice Scalia’s decision to endorse the per se reversal of choice of counsel cases probably stemmed from his belief that a defendant’s most important decision in the litigation process is his choice of representation. That choice of representation is one that defies conventional judicial oversight and relies more on a defendant’s personal inclinations. As Justice Scalia said at oral argument: “[If I was accused of a crime,] I want a lawyer who will invent the Twinkie defense . . . I want a lawyer who’s going to win for me.” After today, it is now every American’s constitutional right to demand the same.
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.
Comment by Daniel — June 26, 2006 @ 10:03 pm
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.
Comment by federalist — June 26, 2006 @ 11:24 pm
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.
Comment by valpodogs — June 27, 2006 @ 10:03 am
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
Comment by Screwloose — June 27, 2006 @ 10:19 am
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.
Comment by federalist — June 27, 2006 @ 11:29 am
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.
Comment by DJMIII — June 27, 2006 @ 2:33 pm
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.
Comment by valpodogs — June 27, 2006 @ 6:17 pm
I wonder what would have happened if the Court of Appeals had affirmed the conviction. Would certiorari have been granted?
Comment by Norma Chase — July 28, 2006 @ 6:38 pm