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Argument recap: Gonzalez v. US

Arguing on behalf of petitioner Homero Gonzalez, Assistant Federal Public Defender Brent E. Newton began oral argument in No. 06-11612, Gonzalez v. United States, as he began his brief, arguing that the question “[w]hether defense counsel can unilaterally waive a criminal defendant’s right to an Article III judge at jury selection . . . is a serious constitutional question” and encouraging the Court to interpret the Federal Magistrates Act “to require [the] defendant’s explicit personal waiver of that right at felony jury selection.”

The Justices appeared hesitant to adopt that interpretation, and most of the Court’s skepticism centered on whether the right to an Article III judge at felony jury selection was as important as petitioner suggested. The Justices questioned the importance of that right in several ways. First, they questioned the right’s importance at a theoretical level. As Chief Justice John G. Roberts suggested early, the right is “derivative of other rights” – “it helps implement” more fundamental, personal rights. Newton resisted that characterization and tried instead to compare the right to the right to a grand jury or petit jury. Justices were skeptical still. As Justice Ruth Bader Ginsburg put it, “there’s a big difference between having a judge trial and a jury of one’s peers,” and the difference between having a magistrate judge or an Article III judge preside over voir dire “is not a question of the same dimension.”

Second, Justices questioned whether the right is one that most defendants would consider particularly important. Justice Samuel Alito questioned whether most defendants would even care who presides over voir dire. As he put it, “Isn’t the situation going to be in the vast, vast majority of cases that your client will simply turn to you and say, which do you think is better, and whatever the lawyer recommends, that’s what the client is going to do?”

In response to these doubts, Newton emphasized that the Framers valued Article III independence. This argument gained little traction. Justice Ginsburg intimated that the independence concern is not particularly strong at felony jury selection: “we’re not talking about a trial. We’re talking about the voir dire.” Justice Antonin Scalia questioned even more fundamentally Newton’s Article III independence argument. He countered that magistrate judges, though not Article III judges, are overseen by Article III judges, and thus “we’re really not talking here about giving away any Article III power.” Because “[m]agistrates are creatures of Article III,” Justice Scalia noted, the independence argument has little force here. In response, Newton reiterated the need for Article III protections and emphasized the greater qualifications of Article III judges.

Third, Justices questioned the importance of the right at a practical level. Justice David H. Souter asked whether there is “anything in practical terms that you think brings this kind of waiver to the point of significance of, say, waiving counsel?” Newton argued that three characteristics make the right to an Article III judge at felony jury selection the sort of right that needs to be personally waived. First, the right must be fundamental. The Court’s decisions, Newton contended, establish that the right to have an Article III judge preside over felony jury selection is fundamental. Second, as with the rights to a jury trial, to a grand jury, and to counsel, “this right concerns the players in the game as opposed to the rules of the game.” And third, in contrast with something waived “during the heat of battle of the adversarial process,” “personal rights are to be waived at a discrete point in time,” which this right is.

In the midst of Newton’s discussion of these characteristics, Justice Anthony M. Kennedy interjected for the first time. Justice Kennedy echoed Justice Souter’s point that, as a practical matter, this right is not as important as other rights. Justice Kennedy then offered a fourth concern – that the right is not sufficiently important to justify the burden that would result from requiring personal waiver. Newton replied that the right at stake is a fundamental one.

Chief Justice Roberts then gave voice to one of the Solicitor General’s main arguments – an argument which seemed to gain traction among the Justices – that the decision whether to have an Article III judge is “a tactical decision” rather than a question of a fundamental constitutional right. Newton countered that “the very same thing could be said of waiving a jury or a grand jury” and asserted that the Court’s decision in Adams v. United States ex rel. McCann stands for the proposition that valid waiver of this right requires “the express intelligent consent of the defendant.” In the view of the Chief Justice, this did not prove Newton’s point, because such consent “can be expressed through counsel.”

Having encountered substantial resistance in his attempt to elevate the right to an Article III judge at felony jury selection, Newton at this point shifted to his alternative argument: citing the Court’s decision in Peretz v. United States, he emphasized that “at the very least, the record needs to reflect that when counsel speaks, counsel is directly speaking with the approval of the client.” Justice Ginsburg then brought up Gomez v. United States – in which the Court held that a magistrate judge cannot preside over voir dire over the defense’s objection – and asked whether anything in that case suggested that the defense attorney had consulted with the defendant. Newton tried to distinguish between “objecting to the violation of a right” and “acquiescing in a knowing and voluntary and intelligent waiver of the right,” but Justice Ginsburg seemed skeptical, and responded by echoing the government’s “tactical decision” argument: “[i]t was the lawyer’s choice [in Gomez], and we have no indication that . . . it was anything other than the strategic choice of the lawyer.”

Newton then shifted gears yet again, arguing that, in discerning Congress’s intent, the Court should interpret the Federal Magistrates Act in pari materia with 18 U.S.C. § 3401(b). Chief Justice Roberts quickly responded: “But, of course, that was for the whole trial [in §3401(b)]. This is for a very discrete aspect prior to trial.” Newton again adverted to Peretz, in which, he stated, “the Court equated an entire delegation of a misdemeanor trial to delegation of felony jury selection.” In response, Justice Souter argued that the decision in Peretz in fact “undercuts” petitioner’s argument, because that decision “equate[s] the waiver with a failure to object.” Newton resisted that characterization, arguing that Peretz needs to be read in context and in light of subsequent decisions, which require more than a failure to object to make an effective waiver. Justice Souter appeared unconvinced, stating that “the implication of Peretz,” given its equation of “waiver” with “failure to object,” “is that it would be . . . a decision of the lawyer that would count for constitutional purposes”: because it is the lawyer who fails to object (since counsel is the one who makes or does not make objections), it is counsel who can “waive” in the meaningful sense here, by not making an objection. The decision in Peretz, in Justice Souter’s view, “seemed to pinpoint the actions of the lawyer alone” – and thus does not implicate a requirement that a defendant personally waive the right. Newton disagreed, emphasizing that in Peretz the defendant himself consented and was present while his lawyer consented.

Before Newton sat down, Justice John Paul Stevens and Justice Kennedy echoed points made earlier. Justice Stevens suggested that “the voir dire is peculiarly . . . an area in which the lawyer knows what he is up to and what’s at stake, and the client does not.” Justice Kennedy again questioned “the practical significance of the client’s participation when it’s really the attorney who is making the decision.”

Lisa S. Blatt, Assistant to the Solicitor General, argued on behalf of the United States and had an easier time of it than Mr. Newton did. Blatt emphasized that the decision whether to have a magistrate judge conduct voir dire is a strategic choice that does not fall within the very few fundamental decisions that a defendant must personally make. Though it is an important choice, “counsel is best equipped to make it.”

The Justices interjected relatively little during Blatt’s presentation, and she took only fifteen minutes. Instead of asking probing questions or expressing skepticism, the Justices mostly asked information-seeking questions that never seriously challenged the heart of the government’s arguments. For example, Justice Stevens asked whether a magistrate judge’s ruling on objections to jurors is reviewable, or if they are final. Blatt noted that any review is de novo. Chief Justice Roberts asked whether any case specifically holds that the right to a jury trial is something that must be explicitly waived. Blatt did not name a case that specifically so holds, but noted that several of the Court’s decisions include the right on a short list with the very few other rights that must be explicitly waived. Justice Ginsburg asked what effect a victory for the United States would have on the Eleventh Circuit’s decision in Maragh, in which the Eleventh Circuit held under its supervisory powers – rather than under the Constitution – that a defendant must explicitly waive. Would a victory for the United States in this case preclude a circuit from so ruling, if the circuit did so under its supervisory powers? Blatt responded, “I don’t think I have a fully developed answer on that, but my guess would be our position is no.” She noted, however, that nothing could stop a particular magistrate from requiring a defendant’s personal waiver in a particular instance.

Blatt closed by presenting the government’s alternative argument: that even if the Court disagrees with the United States on the merits, plain error review applies and there is no plain error in this case. In response to a question from Justice Kennedy, Blatt said that a magistrate judge would not overstep his bounds by asking the client directly whether he waives his right to have a district judge preside over voir dire, even when the attorney has consented.

On rebuttal, Newton returned to § 3401(b), arguing that, given that section’s requirement of a defendant’s personal waiver in the misdemeanor context, it would be anomalous not to require a personal waiver in the felony context. Justice Scalia interjected, noting that at bottom, petitioner’s argument is about the composition of the jury, and asking whether, if the Court requires a special rule of personal waiver in that context, the Court would also have to require personal waiver on other decisions that affect the composition of the jury – such as a court’s failure to permit a strike for cause. Newton stated that such a situation would involve “the heat of the battle of the adversary process” rather than a discrete point in time beforehand, and thus a court would not need the defendant’s personal consent.

Newton closed by noting that this case implicates a critical stage involving a critical right and arguing that there cannot be meaningful de novo review of a magistrate judge’s rulings – thus the defendant’s explicit consent is critical.