Justices: Defendants can hire own lawyers (Scalia sides with LIBS in 5-4 Decision; Alito Dissents)

Defendants are automatically entitled to new trials if their choices of attorneys are wrongly blocked by judges, the Supreme Court ruled Monday.

By a 5-4 vote, justices said Cuauhtemoc Gonzalez-Lopez has a constitutional right to the attorney of his choice under the Sixth Amendment's guarantee of assistance of counsel.

"It commands, not that a trial be fair, but that a particular guarantee of fairness be provided — to wit, that the accused be defended by the counsel he believes to be the best," Justice Antonin Scalia wrote for the majority.

In his first written dissent, Justice Samuel Alito accused Scalia of making "a subtle but important mistake" in interpreting the constitutional guarantee. Alito said "the focus of the right is the quality of the representation ... not the identity of the attorney who provides the representation."

But Scalia insisted the identity of defense counsel does matter. "Different attorneys will pursue different strategies," he wrote. "And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial."

Alito, a former appellate judge, warned that the majority's decision will force new trials for defendants who have not shown they were harmed by the representation of attorneys who were their second choices.

In federal courts, defendants must wait until they are convicted before they can appeal a judge's decision on the choice of an attorney. That means judges cannot correct the error before trial and must now retry cases, Alito said.

Scalia was joined by the court's more liberal members, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Alito had the support of Chief Justice John Roberts and Justices Anthony M. Kennedy and Clarence Thomas.

After Gonzalez-Lopez was accused in Missouri with conspiring to distribute more than 100 kilograms of marijuana, his family hired attorney John Fahle. But Gonzalez-Lopez insisted on hiring Joseph Low, a California attorney who flew to Missouri to represent the defendant.

At first, Fahle and Low cooperated. But their relationship quickly deteriorated and the two lawyers began fighting over representing Gonzalez-Lopez.

The trial judge refused to allow Low to represent Gonzalez-Lopez, ruling that Low had violated court rules by communicating with the defendant against the wishes of his attorney. By then, Fahle had bowed out of the case and another attorney was hired to represent Gonzalez-Lopez.

Scalia said there are limits to defendants' choices of attorneys. He said defendants cannot insist on choosing their attorneys if counsel is appointed and paid for by the court. Nor can defendants insist on counsel who are not members of the bar, he wrote.

Copyright © 2006 The Associated Press. All rights reserved. The information contained in the AP News report may not be published, broadcast, rewritten or redistributed without the prior written authority of The Associated Press.

Scalia has a tendency to be an activist on socially conservative issues on occassion. The medical marijuana case, for example, was clearly a state power outside the scope of the commerce clause. (There was nothing interstate or even anything reasonably commercial about the case). In any case, this was a 6th Amendment case. Here is the amendment at issue. Does it require that someone have the right to choose their counsel or not? Well, I leave the judgement of whether it does or not up to you.

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.

The 6th Amendment provides the right to the assistance of counsel, not exactly the absolute right to pick an out of state lawyer who is subject to pro hac vice admission requirements. This is essentially the view of the minority (Alito, Roberts, Thomas and Kennedy) in this case, as the dissent bears out.

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.

That's exactly what Scalia argued against in the Court's opinion. It was the Government and the dissent that argued that the denial of counsel was subject to harmless-error review.

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 one’s choice, by contrast, has never been derived from the Sixth Amendment’s 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 Court’s 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 court’s discretion may be, this Court accepts the Government’s concession that the District Court erred. Pp. 11–12.

That's not what your stated concern was in previous posts.

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, 624–625 (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 Circuit’s 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 159–160. We have recognized a trial court’s wide latitude in balancing the right to counsel of choice against the needs of fairness, id., at 163–164, and against the demands of its calendar, Morris v. Slappy, 461 U. S. 1, 11–12 (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 one’s counsel is relevant here. This is not a case about a court’s 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 defendant’s 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 Government’s concession of erroneous deprivation, the trial court’s error violated respondent’s Sixth Amendment right to counsel of choice. The Court rejects the Government’s 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, 691–696—i.e., that his performance was deficient and the defendant was prejudiced by it—or the defendant can demonstrate that substitute counsel’s 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.

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