Criminal
Aug. 22, 2006
Let All Criminal Defendants Pick Their Lawyers
Forum Colmn - The Sixth Amendment right to counsel means that a criminal defendant who can afford to pay for an attorney generally has the right to the lawyer of his or her choice.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
The Sixth Amendment right to counsel means that a criminal defendant who can afford to pay for an attorney generally has the right to the lawyer of his or her choice. That is the holding of a Supreme Court decision from the end of June that has important practical implications for criminal cases across the country. In U.S. v. Gonzales-Lopez, 2006 DJDAR 8085 (June 26), the court held, 5-4, that wrongly denying a person the attorney of his or her choice is an automatically reversible error without any need for the criminal defendant to show that he or she was prejudiced by the court's mistake.
Cuauhtemoc Gonzales-Lopez was tried in the U.S. District Court for the Eastern District of Missouri for conspiracy to distribute more than 100 kilograms of marijuana. His family hired a lawyer, John Fahle, to represent him. But Gonzales-Lopez contacted a California attorney, Joseph Low, to provide representation. Low flew to Missouri to meet with Gonzales-Lopez and was hired to be Gonzales-Lopez's lawyer.
The District Court, however, refused to grant Low's motion for pro hac vice status. In fact, Low three times moved for pro hac vice status and each time was denied without opinion by the District Court. Later, the District Court explained that it refused these requests because it believed that Low had violated ethical rules by contacting Gonzales-Lopez and speaking with him directly even though Gonzales-Lopez was represented by other counsel.
Fahle withdrew from representing Gonzales-Lopez, but still the court would not allow Low to participate in the trial. Indeed, the new attorney, Karl Dickhaus, moved to allow Low to sit at counsel table, but the District Court refused. The court ordered Low to sit in the audience at the trial and to have no contact with Dickhaus. The court even had a U.S. marshal sit between Dickhaus and Low to make sure that no communications occurred between them during the trial proceedings.
Gonzales-Lopez was convicted and appealed on the ground that his Sixth Amendment right to counsel had been violated. The 8th U.S. Circuit Court of Appeals concluded that the District Court erred in denying Low pro hac vice status. It decided that Low had not violated any ethical rule and that denying Gonzales-Lopez the attorney of his choice required reversal of the conviction.
The issue before the Supreme Court was an important one: How should such wrongful denial of counsel be analyzed? Must the defendant, as the government argued, prove that he or she was prejudiced? Or is an error in denying representation per se a reversible error?
The Supreme Court, in its 5-4 decision, affirmed the 8th Circuit and held that wrongful denial of representation by the attorney of one's choice violates the Sixth Amendment and that it is a structural error that is not subject to harmless-error analysis. In a division among the justices rarely seen, Justice Antonin Scalia wrote the opinion for the majority and was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.
Scalia's majority opinion began by observing that the Sixth Amendment means that a defendant who does not require appointed counsel has the right to choose who will represent him or her. In other words, those with resources to hire an attorney, generally have a right to the lawyer of their choice.
Scalia expressly rejected the government's contention that the defendant must show that he or she was denied a fair trial and was prejudiced by not having the attorney of choice. Scalia emphatically declared, "In sum, the right at stake here is the right to counsel of one's 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.'"
The court then went on to conclude that the denial of the attorney of choice was a "structural error" and not subject to harmless-error analysis. The Supreme Court generally has been reluctant to find constitutional violations to be structural errors and has emphasized that usually harmless-error analysis is to be applied. See, e.g., Washington v. Recuenco, 2006 DJDAR 8078 (June 26) (failure to submit a sentencing factor to the jury, in violation of Blakely v. Washington, 542 U.S. 296 (2004), is subject to harmless-error analysis).
But in Gonzales-Lopez, Scalia concluded that wrongful denial of the counsel of the defendant's choice inherently violates the Sixth Amendment. The court stated, "We have little trouble concluding that erroneous deprivation of the right of counsel of choice, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error." The court explained that it would be an impossible burden to force a defendant to show that the outcome would have been different if only another lawyer had handled it. Scalia explained that "[h]armless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe."
At the end of the majority opinion, the court reaffirmed the power of trial courts to set criteria for admission of attorneys to appear before them. In other words, courts can have rules limiting pro hac vice representation, and there is not a violation of the Sixth Amendment so long as the rules are applied properly. Also, the court emphasized that its holding did not apply in the context of appointed counsel, where courts retain discretion as to who will represent a defendant. The court noted that "[t]his 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."
Nonetheless, the case has important implications. Although courts still may enforce rules concerning pro hac vice representation, Gonzales-Lopez means that a wrongful denial of pro hac vice status is an automatically reversible error requiring a new trial. This likely will cause trial courts, both federal and state, to be much more likely to grant pro hac vice status rather than risk reversal after a conviction.
Moreover, the court's repeated insistence that the Sixth Amendment creates a right to representation by the attorney of one's choice is not as easily cabined as the majority suggests. Why should this be a right only for those rich enough to afford an attorney? Why shouldn't those without such resources, who are represented by appointed counsel, also have this right? It is deeply disturbing that the court expressly articulated a right that applies only for those with money and that does not apply to those too poor to afford a lawyer. The majority's reasoning may open the door for those represented by appointed counsel to claim some right with regard to the choice of who will be providing representation.
Also, what of the defendant who is denied the attorney of choice because a trial court is inflexible in scheduling and refuses to grant an extension until the desired lawyer can participate? The court's emphasis on the right to the attorney of one's choice should cause trial courts to be more hesitant to proceed without that lawyer's participation.
Justice Samuel Alito, writing for the four dissenting justices, lamented that the majority's holding means that "a defendant who is erroneously required to go to trial with a second-choice attorney is automatically entitled to a new trial even if this attorney performed brilliantly." This is exactly what Scalia's opinion means. The court's holding is an important victory for criminal defendants in finding that it is structural error to wrongly deny representation by the attorney of the defendant's choice. A defendant facing imprisonment or even death deserves no less. But this is a right that should be accorded to all criminal defendants, rich and poor alike.
Erwin Chemerinsky is Alston & Bird professor of law and political science at Duke University.
David Minkown
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