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Supreme Court Decision Update - United States v. Gonzalez-Lopez

supreme2.jpgIn United States v. Gonzalez-Lopez (PDF of the opinion) the Supremes take up the issue of whether a criminal defendant is entitled to his or her paid counsel of choice under the Sixth Amendment. The Supremes hold that the right to a counsel of a defendant’s choosing is not subject to Sixth Amendment harmless-error analysis; so long as the attorney is fit and qualified to act as counsel, a defendant cannot be deprived of his or her first choice of counsel.

QuizLaw Analysis: Conceding that the decision is actually a bit of a surprise given the current makeup of the Court, the bigger surprise here is that, in a 5-4 opinion, the conservative stalwart, Justice Scalia, is writing the majority decision, in which the court’s liberal members join. I somehow doubt, however, that Scalia is turning over a new leaf – indeed, Scalia’s motives lie elsewhere, as he suggested during oral arguments: “I don’t want a ‘competent’ lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win.”

Gonzalez-Lopez was brought up on charges of conspiring to distribute drugs in Missouri. His family initially got him one lawyer, but Gonzalez-Lopez wanted another lawyer, Low, and he was all too willing to pay for him. However, the district court — without explanation — denied him his first choice of Low (though, the court did offer an explanation after the fact — but, by that time, it was too late and it was a crappy reason anyhow). Gonzalez-Lopez was convicted, and appealed, arguing that he had the right to the counsel of his choosing and that deprivaition entitled him to have the verdict vacated.

In the 5-4 opinion written by Justice Scalia, the quirky justice followed through on his suggestion that a criminal defendant was entitled to a lawyer who might “invent the Twinkie defense.” Indeed, in your run-of-the-mill Sixth Amendment case, wherein a defendant argues that he was deprived of a fair trial because of his lawyer’s incompetence, harmless-error analysis is required, i.e., did the lawyer’s incompetence affect the outcome of the trial? The government stuck with that argument, asserting that the Sixth Amendment was not violated because the defendant had not been prejudiced by his second choice.

Scalia disagreed, however. “The right to counsel of choice … 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 best,” he wrote. Scalia insisted that the right to counsel of one’s choosing is not subject to harmless-error analysis because it is a “structural error,” and not a trial error. Scalia also noted that this ruling does not affect a court’s authority to set the criteria for which lawyers are allowed to practice in their court, i.e., they must be qualified, a member of the bar, and have no conflicts of interest.

It is worth noting, moreover, that despite the importance of the case, the more liberal members of the Court did not put forth a concurrence, preferring instead to allow Scalia’s opinion speak without reservation.

The remaining right side of the court put forth a dissent drafted by Scalia’s supposed legal doppelganger, Justice Alito. Alito wrote, in effect, that the right to counsel of choice should be subject to harmless-error analysis: “A defendant should be required to make at least some showing that the trial court’s erroneous ruling adversely affected the quality of assistance that the defendant received.” Alito further noted that, “fundamental unfairness does not inexorably follow from the denial of first-choice counsel,” and that “requiring a defendant to fall back on a second-choice attorney is not comparable to denying a defendant the right to be represented by counsel at all.”

And while I disagree with where the dissent ended up, Alito certainly does have a point when he remarks that it would be unfair if “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.” But then again, under the majority’s ruling, a criminal defendant wouldn’t be put in this situation, because he or she would simply be entitled to his or her first choice.

| Comments (1)


in my case, my "primary" attorney informed me, quite early on, that he had virtually no experience in selecting a jury or presenting a criminal defense to one in court. He advised me to hire an attorney with such experience, and I did. One week prior to my trial date, that attorney was diagnosed with renal carcinoma, and required emergency surgery. My "original" attorney requested a continuance, which was denied without comment or explanation. My attorney then advised me to waive my right to a jury trial (explicitly due to his lack of pertinent experience - a fact to which he attested in writing at the time of trial. Needless to say, I was convicted.

My question is, should the Gonzalez-Lopez decision apply to my case? My fear is that 'they' may try to say that I did get my attorney of choice - the one who told me he couldn't try the case in court. My case may be reviewed at the website for the Ninth Court of Appeals, Texas - Texas v. Bruce Allen Marx.

Please respond.