Posted on 06/26/2006 1:23:37 PM PDT by new yorker 77
How does that fashion itself into a constitutional standard?
The question is whether you got a fair trial with adequate representation. Nothing more.
Maybe you have some legal recourse against the counsel you hate, but it has NOTHING to do with whether a fair trial was held.
Either it was it or it wasn't, but name of your attorney is irrelevant.
So the so-called "swing vote" in this case wasn't Kennedy this time, but Scalia. Interesting.
I'm not dispusting that anyone should be able to hire whatever attorney they desire. But the standard for throwing out a trial verdict ought to be something that occurred in the courtroom.
Just restating.
Well, it's the law of the land now, but it certainly complicates things.
I am quite surprised that Scalia came down with ruling. It's out of character for him.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Because he can't legally practice law there.
Sure, people can choose to hire an attorney of their choice. But to get a conviction overturned, they should have to prove that by denying them their counsel of choice, they received ineffective assistance of counsel. What I disagree with is the notion of the majority that not permitting the out of state lawyer to represent the accused is ineffectice assistance of counsel per se. It opens the door to all kinds of zany requests for representation as a loophole for an immediate appeal and reversal of a conviction.
Disclosure: Scalia's portrait hangs over my family's portrait in our living room, and it is staying there. Everybody's human.
What's interesting is that Thomas joined Alito. Thomas was with Scalia in a similar case, Kyllo, where Scalia went with the liberals. Here, however, he didn't join him. Also, Alito used some originalist arguments and looked to what the situation was in 1789.
It's also interesting to compare this with the knock case where Scalia said that a violationdidn't mean the evidence had to be thrown out. Here, he said a violation does mean the conviction has to be reversed, a far greater oenalty.
I tend to agree with Alito in that there should be some showing of the harm done and not merely a violation.
The question is about the remedy for the violation.
An interesting case nonetheless.
Scalia is one of the Court's strongest defenders of the 6th Amendment. His vote isn't the least bit surprising; I expected it.
Since the family wasn't on trial, it would seem the defendant had the right to the attorney he chose unless mental competency is in question.
It'a amazing what folks will post w/o reading the actual Opinion, isn't it?
Once the standard is changed from whether the standard of representation meets constitutional standards to some sort of preference thing where you can argue that a different attorney would have obtained a different outcome, all hell breaks loose.
Your right to the attorney of your choice (as long as you're paying) has been established, by the SCOTUS, for quite some time:
"The right to select counsel of ones choice, by contrast, has never been derived from the Sixth Amendments purpose of ensuring a fair trial.3 It has been regarded as the root meaning of the constitutional guarantee. See Wheat, 486 U. S., at 159; Andersen v. Treat, 172 U. S. 24 (1898)."
It's important to keep in mind what the argument was here - the Government conceded that the trial court erred in denying defendant his counsel of choice, but argued that that violation was subject to some sort of harmless error review.
And for those concerned that this decision gives a defendant right to any attorney he wants, no matter what, Scalia adds:
(c)Nothing in the Courts opinion casts any doubt or places any qualification upon its previous holdings limiting the right to counsel of choice and recognizing trial courts authority to establish criteria for admitting lawyers to argue before them. However broad a trial courts discretion may be, this Court accepts the Governments concession that the District Court erred. Pp. 1112.
What I disagree with is the notion of the majority that not permitting the out of state lawyer to represent the accused is ineffectice assistance of counsel per se.
We're saying the same thing, essentially. I don't agree with the majority because it translates the 6th Amendment from guaranteeing the assistance of counsel into guaranteeing the choice of counsel.
UNITED STATES v. GONZALEZ-LOPEZ simply reiterates a position held by the Court for over 100 years - that 6th Amendment protections necessarily include the right to choose your own attorney (again, as long as you're paying).
Cf. Powell v. Alabama, 287 U. S. 45, 53 (1932) (It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice). The Government here agrees, as it has previously, that the Sixth Amendment guarantees the defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds. Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624625 (1989). To be sure, the right to counsel of choice is circumscribed in several important respects. Wheat, supra, at 159. But the Government does not dispute the Eighth Circuits conclusion in this case that the District Court erroneously deprived respondent of his counsel of choice.
How could it be otherwise?
The right of choice isn't limitless, nor has it ever been held to be:
As the dissent too discusses, post, at 3, the right to counsel of choice does not extend to defendants who require counsel to be appointed for them. See Wheat, 486 U. S., at 159; Caplin & Drysdale, 491 U. S., at 624, 626. Nor may a defendant insist on representation by a person who is not a member of the bar, or demand that a court honor his waiver of conflict-free representation. See Wheat, 486 U. S., at 159160. We have recognized a trial courts wide latitude in balancing the right to counsel of choice against the needs of fairness, id., at 163164, and against the demands of its calendar, Morris v. Slappy, 461 U. S. 1, 1112 (1983). The court has, moreover, an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. Wheat, supra, at 160. None of these limitations on the right to choose ones counsel is relevant here. This is not a case about a courts power to enforce rules or adhere to practices that determine which attorneys may appear before it, or to make scheduling and other decisions that effectively exclude a defendants first choice of counsel.
The key point in UNITED STATES v. GONZALEZ-LOPEZ is that the long-held right of choice inherent in the 6th Amendment is not subject to harmless-error review. As Scalia wrote:
In sum, the right at stake [R4F note - "at stake", as opposed to 'in question'] here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation complete.2,...
and...
(a) In light of the Governments concession of erroneous deprivation, the trial courts error violated respondents Sixth Amendment right to counsel of choice. The Court rejects the Governments contention that the violation is not complete unless the defendant can show that substitute counsel was ineffective within the meaning of Strickland v. Washington, 466 U. S. 668, 691696i.e., that his performance was deficient and the defendant was prejudiced by itor the defendant can demonstrate that substitute counsels performance, while not deficient, was not as good as what his counsel of choice would have provided, creating a reasonable probability that. . . the result . . . would have been different, id., at 694.
Kryptonite spaketh profoundly thusly:
I don't agree with the majority because it translates the 6th Amendment from guaranteeing the assistance of counsel into guaranteeing the choice of counsel.
sure it was Fred
There's a lot more to this, lots of legaleeze stuff, but on it's face, I have to agree with Scalia. (Note the statement 'wrongly blocked by judges.')
It's Ready, actually... ;>) Well, now you know that the right to counsel of your choice, your stated concern in posts #s 10 & 50, with some limitations that have long addressed your stated concerns in post #10, and as long as you're paying, has long been held to be a part of 6th Amendment protections.... The court rejected the minority opinion, and yours, as stated in post #50, that there is need for a harmless error review for what they consider a structural error
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.