Opinion Recap: Gonzalez v. US

Recent Stanford Law graduate Scott Stewart authored this recap of Monday’s decision in Gonzalez v. US. Visit the Gonzalez SCOTUSwiki page, here, to find background information on the case.

The Federal Magistrates Act, 28 U.S.C. § 631 et seq., permits district judges to delegate certain functions to magistrate judges. Presiding over felony voir dire and jury selection is one such function (under Peretz v. United States (1991)), but parties must consent to the delegation. In Gonzalez v. United States, No. 06-11612, the Court considered the question whether counsel alone may consent to the delegation, or whether the defendant must personally consent. On Monday, May 12, 2008, the Court answered that question: counsel’s consent is enough.

In December 2004, a federal grand jury indicted petitioner Homero Gonzalez for drug-related offenses. Before jury selection began, a magistrate judge asked the prosecutor and Gonzalez’s counsel – but not Gonzalez himself – whether they would consent to her assisting in jury selection. Both attorneys consented, and the magistrate conducted the jury selection. Voir dire proceeded without any defense objection, the case proceeded to trial, and the jury convicted Gonzalez on all counts. On appeal, Gonzalez claimed for the first time that because he did not personally consent to the magistrate judge presiding over voir dire, he was entitled to a new trial. The court of appeals affirmed the conviction.

The Supreme Court also affirmed, concluding that counsel alone can waive a defendant’s right to have a district judge preside over felony voir dire and jury selection. Writing for a seven-Justice majority, Justice Anthony Kennedy observed that what suffices for a waiver depends on the right at issue. Some rights – such as the rights to counsel and to plead not guilty – are so fundamental as to require a defendant’s personal waiver. Other rights are less fundamental and implicate tactical choices that an attorney is best equipped to make. Such tactical matters arise frequently, and requiring a defendant’s personal consent on each choice would be impractical.

The Court concluded that the decision to consent to a magistrate judge at jury selection is precisely the kind of “tactical decision that is well suited for the attorney’s own decision.” The question whether to have a particular judge preside over voir dire often turns on considerations of the judge’s approach and how it meshes with the attorney’s approach – considerations that an attorney is best equipped to evaluate. Requiring a defendant’s personal consent could cause needless delay and could detract from the attorney’s preparation for other parts of the defense. Moreover, the right to have a district judge preside over voir dire is not so important to require a defendant’s personal consent, and a district judge can correct a magistrate judge’s errors when a defendant objects. For these reasons, counsel’s express consent is enough to permit a magistrate judge to preside over felony voir dire and jury selection.

Justice Antonin Scalia concurred only in the judgment. He objected to the Court’s “tactical-vs.-fundamental test.” He believed that the Court’s precedents do not establish such an approach, which in his view is both vague and hard to support because it is unclear what makes a right “tactical” or “fundamental.” Justice Scalia would have adopted the rule that “as a constitutional matter, all waivable rights (except, of course, the right to counsel) can be waived by counsel” because the Constitution offers no reason to distinguish “between a criminal defendant and an authorized representative” in this regard. Because no rule or statute requires that the defendant personally waive the right to a district judge at jury selection, counsel may waive the right.

Justice Clarence Thomas dissented. In his view, the Federal Magistrates Act does not authorize district judges to delegate felony jury selection to magistrate judges, regardless of the parties’ consent, and the Court’s contrary decision in Peretz should be overruled. Section 636(b)(3) of the Act says nothing about delegating felony jury selection or consenting to such delegation. When Congress intended to allow delegation of other functions and to mandate a particular type of consent in other parts of the Act, it said so specifically. Moreover, adhering to Peretz requires the difficult determination of whether certain rights are fundamental (a determination that, in Justice Thomas’s view, is far more difficult in this case than the Court believed). Overruling Peretz would eliminate the need for such determinations. Justice Thomas would have remanded for a new trial.