On Tuesday, April 18, the Court will hear arguments in United States v. Gonzalez-Lopez (No. 05-352). The question presented in this case is whether the erroneous denial of a criminal defendant’s Sixth Amendment right to counsel of choice requires automatic reversal on appeal. (Disclosure: I worked on the respondent’s brief as a member of the Stanford Supreme Court Litigation Clinic; Goldstein & Howe also represents the respondent.) Jeffrey Fisher of Davis Wright Tremaine will argue on behalf of the respondent. Deputy Solicitor General Michael Dreeben will argue on behalf of the United States. The parties’ briefs are available here; the NACDL amicus brief is available here.
Respondent Cuauhtemoc Gonzalez-Lopez was charged with conspiring to distribute marijuana in the Eastern District of Missouri. Upon his arrest, his family secured a lawyer for him (Mr. John Fahle), whom he had never met. Fahle represented Gonzalez-Lopez at an arraignment hearing, but shortly thereafter, Gonzalez-Lopez heard about a California lawyer named Joseph Low, who had recently secured a favorable deal for another defendant in a similar case before the same judge. Gonzalez-Lopez contacted Low and ultimately hired him. Shortly thereafter, Gonzalez-Lopez asked Fahle to withdraw from the case, leaving Low as his sole attorney.
Before the trial, Low applied for formal admission pro hac vice four times and applied for general admission to the Missouri bar, but the trial court denied his motions and tabled his application. The court based its ruling on Low’s alleged violation of a local rule, which, according to the trial court’s interpretation, prohibited lawyers from talking to represented parties without their current lawyer’s permission. On this basis, Low was denied the ability to represent Gonzalez-Lopez at trial.
Low had previously brought in another attorney, Karl Dickhaus, to act as local counsel while his applications for admission were pending. But after Low was denied admission, Dickhaus went on to represent Gonzalez-Lopez at trial in what was Dickhaus’s first federal criminal case. At trial, Low was not permitted to sit next to Gonzalez-Lopez or advise Dickhaus in any way; he was seated in the audience, with a U.S. Marshal placed between him and his client. He was denied the ability to consult with Gonzalez-Lopez until the last day of his trial.
Meanwhile, when Fahle withdrew as counsel, he also filed a motion for a show cause hearing for sanctions against Low, alleging improper interference with his client. The prosecutor in Gonzalez-Lopez’s case appeared at the sanctions hearing to offer evidence about alleged misconduct in an earlier case, and cross-examined Low. When the trial court issued its final opinion on the matter (well after the end of the trial), it awarded Fahle sanctions against Low for alleged ethical improprieties and again justified its repeated denials of Low’s pro hac vice applications on these grounds.
As for Gonzalez-Lopez, Dickhaus was unable to impeach the government’s star witness at trial, an alleged co-conspirator named Jorge Guillen, and Gonzalez-Lopez was convicted by a jury and sentenced to 292 months in prison.
The Eighth Circuit reversed both the sanctions against Low and Gonzalez-Lopez’s conviction. The court of appeals first held that the trial court had misinterpreted the local rule and thus erroneously denied Low’s application to appear pro hac vice. Finding that the denial of Low’s chosen counsel implicated his Sixth Amendment right to choose his own attorney, the Eighth Circuit joined six other circuits in requiring automatic reversal. The court of appeals reasoned that lawyers are not fungible, that the right to choose a lawyer is rooted in respect for the dignity and autonomy of the accused, and that the error was “structural†and thus not amenable to harmless error analysis.
On remand, Low deposed Jorge Guillen, the government’s star witness. Under Low’s questioning, Guillen admitted to lying during his testimony and offered an alternative explanation for Gonzalez-Lopez’s actions on the night of his arrest, which undercut the government’s theory of the case. After the deposition, the United States sought a stay in the proceedings and petitioned for cert.
The government argues that the right to counsel of choice is a qualified right and is not violated unless the defendant received an unfair trial. The U.S. asserts that the essential purpose of the Sixth Amendment is to provide defendants with a fair trial. Since the defendant’s “second-choice†counsel was constitutionally effective and his trial was objectively fair, there is no violation at all. The government argues for the application of the Strickland effective assistance test to such claims: to obtain reversal on appeal, a defendant would have to show that his replacement counsel was constitutionally ineffective and that the ineffectiveness prejudiced the outcome of his trial. Alternatively, the government argues that even if a defendant could win reversal without showing the first prong of Strickland (defective performance), the defendant still has the burden to satisfy Strickland’s prejudice prong by showing that representation by his chosen counsel would have led to a reasonable probability of a different outcome. The government maintains that, unlike certain errors for which prejudice can be presumed, there is nothing inherent in the denial of the right to counsel of choice that necessarily leads to an unfair trial. The government also raises an alternative test used by the Seventh Circuit – which requires the defendant to show an adverse effect on his defense after the erroneous denial of counsel – but urges the Court to reject this standard and apply Strickland to these claims either in full, or in part.
Respondent argues that the right to counsel of choice is not subsidiary or inferior to the right to effective assistance of counsel. Rather, it is an important protection in its own right that protects interests beyond merely ensuring the accuracy of the verdict. Like the Faretta right to self-representation, the right is predicated on a concern for the autonomy and dignity of the accused and on the fact that it is the defendant who must bear the consequences of the trial. Contrary to the government’s suggestion that the Sixth Amendment is not violated unless and until prejudice can be shown, respondent argues that the right is violated at the moment the trial court interferes with the defendant’s ability to make his own defense by erroneously disqualifying his chosen attorney. And because it would be extremely difficult on appeal to parse out all of the various ways the trial may have unfolded with the defendant’s chosen attorney rather than his substitute counsel, a prejudice inquiry is simply impracticable on appeal. A rule of automatic reversal is therefore appropriate. In the alternative, respondent argues that even if the Court does not accept a rule of per se reversal, the appropriate standard is Chapman harmless error review. This standard presents a burden the government cannot meet on the facts of this case given the obvious difference in representation between Low and Dickhaus. In fact, respondent argues, on the facts of this case, Gonzalez-Lopez must receive a new trial under any prejudice standard, including the Seventh Circuit adverse effect test or even the government’s own proposed rule.
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