Today’s Opinion in United States v. Gonzalez-Lopez

By Kevin Russell
on Jun 26, 2006 at 8:57 pm

Akin Gump summer associate Frank Walsh has this write-up of today’s decision in United States v. Gonzalez-Lopez:

All lawyers are not created equal—and a defendant’s choice of counsel will likely affect every aspect of the trial process. This morning, the Supreme Court recognized the non-fungibility of lawyers and held that the Sixth Amendment encompasses the right to counsel of choice; that is, a defendant charged with a crime has a right to be represented by his first-choice attorney (assuming the choice is a licensed attorney and not court appointed). Justice Scalia, writing for a five-Justice majority, held that a defendant’s choice of counsel was so fundamental to the trial process that any wrongful denial of a defendant’s first-choice representation warranted a per se reversal. For the opinion, click here. For a detailed discussion of the facts of the case, click here.

In January 2003, respondent Cuauhtemoc Gonzalez-Lopez decided to seek out new counsel after he grew disappointed with the representation of his current lawyer, Mr. John Fahle. Gonzalez-Lopez ardently defended his innocence and believed that Joseph Low, a seasoned California defense lawyer with experience defending drug conspiracy charges, could best try the case. Low agreed to represent Gonzalez-Lopez and began preparing for Gonzalez-Lopez’s trial.

The trial magistrate, however, had other ideas and denied Low’s motion for admission pro hac vice. Without Low, Gonzalez-Lopez carried on with his trial represented by Karl Dickhaus, local counsel brought in while Low’s admission was pending to serve as temporary counsel. Low was not allowed to advise Dickhaus in any way and was denied the ability to consult with Gonzalez-Lopez until the last day of trial. Dickhaus was unable to impeach the prosecution’s star witness, and Gonzalez-Lopez was convicted by a jury and sentenced to 292 months in prison.

The Eighth Circuit vacated Gonzalez-Lopez’s conviction, remanding the case for a new trial with Low as counsel. On remand, Low’s deposition of the star witness revealed that he had lied and that Gonzalez-Lopez was not part of a drug deal at all. Following the deposition, the government filed for certiorari.

The Court’s majority opinion begins by describing the right to counsel of choice that the Court articulated in Wheat v. United States and Powell v. Alabama. This right, Justice Scalia argues, is not part of the Sixth Amendment’s “purpose of ensuring a fair trial” but rather derives from the “root meaning” of the amendment. The government had contended that the Sixth Amendment only required a reversal when a defendant showed that the substitute counsel was ineffective because only then was a defendant prejudiced. The Court rejected this contention and found that the Sixth Amendment demanded a new trial whenever a defendant was wrongfully denied his first choice in counsel.

Scalia argued that the denial of the right to choice of counsel constitutes the most serious kind of constitutional mistake. In Arizona v. Fulminante, Court divided constitutional errors into two classes: “trial errors” and “structural defects.” Most constitutional errors are trial errors that occur “during the presentation to the jury,” and courts have discretion in deciding whether these trial errors are harmless or warrant a new trial. Structural defects, however, defy harmless-error analysis because they “affect the framework within which the trial proceeds.” The majority classified the denial of the right to choice of counsel as a structural defect. With this classification, the denial of the right to counsel of choice joined other structural defects like the denial of counsel, the denial of the right to a public trial, and the denial of the right to trial by jury by the giving of a defective reasonable-doubt instruction.

Justice Scalia expounded upon the importance of the right to choice of counsel in the trial process. The choice of counsel is fundamental to an accused’s defense; the defense attorney will conduct a variety of activities including plea bargaining, jury voir dire, negotiations with the government, and the trial itself. Simply put, the erroneous denial of counsel “bears directly on the framework within which the trial proceeds—or indeed whether it proceeds at all.” This sentiment was echoed in the National Association of Criminal Defense Lawyers (“NACDL”) amicus brief; NACDL argued that lawyers are not fungible and a defendant has the right to choose which attorney’s unique skill set would be best suited to the case.

The majority also found serious practicality problems with the government’s suggested approach to reviewing the prejudice of a wrongful denial of choice of counsel. Trial errors before a jury can be reviewed by an examination of the record to find an attorney’s mistakes. On the other hand, the wrongful denial of choice of counsel requires the Court to look “for differences in the defense that would have been made by the rejected counsel,” forcing the Court to “speculate upon what matters the rejected counsel would have handled differently.” The Court’s rationale for not requiring a showing of prejudice in choice of counsel cases is thus two-fold: (1) the error inherently constitutes a fundamentally grave mistake; and (2) an inquiry into prejudice would require analysis of speculative prognostications of what another counsel would have done.

The Court concluded its opinion by acknowledging that there are still several limitations on the right to choice of counsel. First, each state still maintains the right to administer its own bar and deny admission to those who do not qualify. Second, the choice of counsel right does not apply when a defendant relies on a court-appointed lawyer.

In his dissent, Justice Alito argued that the majority “makes a subtle but important mistake” by mischaracterizing the right to choice of counsel as the right “to choose who will represent” the defendant. The Sixth Amendment, Alito argues, actually protects “the right to have the assistance that the defendant’s counsel of choice would provide”; it is not the person but rather the legal advice that the Sixth Amendment protects. A new trial, then, should only be ordered when a defendant can show that the “erroneous disqualification of counsel . . . diminishes the quality of assistance that the defendant would have otherwise received.” That is, the dissent would require a showing of prejudice before overturning a lower court’s decision.

Justice Alito also rejects the majority’s contention that the denial of the right to choice of counsel always warrants a new trial. Fulminante, he argues, did not create a dichotomous categorization of constitutional errors but rather a continuous spectrum with “trial error” and “structural defect” as the two poles. In this conception of the Fulminante paradigm, trial errors were not the only ones subject to “harmless error” review and not all errors “affecting the framework within which the trial proceeds” required reversal. Thus, even if the Court held that a denial of the right to counsel of choice violated the Sixth Amendment, the Court should still engage in “harmless error” review to determine if the appropriate remedy would be a new trial.

The swing vote in this case came from Justice Scalia, who sided with the four traditionally liberal justices. The linchpin in Justice Scalia’s decision to endorse the per se reversal of choice of counsel cases probably stemmed from his belief that a defendant’s most important decision in the litigation process is his choice of representation. That choice of representation is one that defies conventional judicial oversight and relies more on a defendant’s personal inclinations. As Justice Scalia said at oral argument: “[If I was accused of a crime,] I want a lawyer who will invent the Twinkie defense . . . I want a lawyer who’s going to win for me.” After today, it is now every American’s constitutional right to demand the same.