6th Amendment—Fundamental Right to Counsel of Choice (SCOTUS Preview)

Next week, the United States Supreme Court will have the opportunity to weigh in on a constitutional question that has been answered single‑mindedly in a majority of federal Circuit Courts of Appeal.^[1] In oral arguments for US v. Gonzalez-Lopez next Tuesday, April 18, the parties will ask the Justices to decide whether the denial at trial of a defendant’s counsel of choice is a violation of a fundamental right, and therefore automatically reversible, or whether the defendant must show that his case was actually prejudiced by the denial with regard to the outcome.^[2]

Right to Counsel
In holding that “[t]he denial of the right to be represented by one’s selected attorney 'infects the entire trial process' from 'beginning to end,’” and that a defendant need not show that he suffered harm in order to have a conviction overturned, the 8th Circuit Court of Appeals became the 7th of 10 Circuits to agree that the right to defense counsel of one’s choosing is a fundamental right under the 6th Amendment.^[3]

6th Amendment
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

If the Supreme Court affirms the view of the majority of the appeals courts, the prevailing constitutional interpretation of the 6th Amendment right to counsel will become the rule of law. If the Supreme Court disagrees, it reverses the holdings in at least 6 federal circuits. In its decision, the appellate panel noted agreement in the 1st, 3rd, 6th, 7th, 9th, 10th, and D.C. Circuits that “a decision denying a pro hac vice admission necessarily implicates constitutional concerns.”^[4]

Pro Hac Vice
In federal criminal cases, the most effective attorney is often a lawyer with extensive experience in federal courts. Because all federal criminal matters are tried under the same criminal code, rules, and sentencing guidelines, lack of expertise with a particular jurisdiction’s laws and rules of procedure is not a substantive obstacle. However, each time that an attorney is hired to represent a client in a jurisdiction other than the jurisdiction(s) in which an attorney is licensed to practice, he must file a motion to appear pro hac vice, or “for the particular purpose.”^[5] The court has complete discretion in granting the motion and may impose specific requirements, including testing on local rules or hiring local counsel.

If Gonzalez-Lopez prevails at the U.S. Supreme Court, the denial of a pro hac vice motion will be tantamount to a denial of the defendant’s fundamental, constitutional right to counsel. This ruling would recognize, in effect, the reality of putting on an adequate defense in federal criminal courts and will place the burden of showing otherwise properly on the government.

Facts
In early 2003, Cuauhtemoc Gonzalez-Lopez was arrested and charged with conspiring to distribute marijuana. Soon after his arrest, his family hired Texas attorney John Fahle.^[6] Fahle represented Gonzalez‑Lopez at the initial hearing and arraignment.^[7] In evaluating these facts, the appeals court pointed out that there is often little opportunity to select a trial attorney of choice between arrest and arraignment.^[8]

After his arraignment, Gonzalez‑Lopez contacted and hired California defense attorney Joseph Low. Both Low and Fahle were in attendance at an evidentiary hearing before a Missouri magistrate judge, Low by provisional consent of the court. At the hearing, the court revoked Low’s provisional admission for violating the court rule that barred cross‑examination by more than one attorney.^[9]

Pushed to make a choice, Gonzalez‑Lopez chose to continue with Low as his counsel of choice. However, the denial of Low’s application to appear pro hac vice in the 8th Circuit was based on a charge that Low committed an ethical violation by communicating with a represented individual—Gonzalez‑Lopez. The District Court judged this conduct in light of Low’s allegedly similar conduct in an unrelated case. On appeal, the court reversed the denial.^[10]

On March 8, 2005, a unanimous 8th Circuit panel found that the denial of counsel violated his 6th Amendment right to counsel and required an automatic reversal.^[11] The court vacated the conviction and remanded for a new trial. The government submitted a writ of certiorari with the U.S. Supreme Court, arguing that the 8th Circuit Court of Appeals holding places an undue burden on the government and on the courts.^[12]

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[1] U.S. v. Gonzalez‑Lopez, 399 F.3d 924 (8th Cir. 2005).
[2] The Supreme Court granted certiorari in this case on Order List 546 US, Jan. 6, 2006.
[3] Gonzales‑Lopez supra note 1.
[4] Gonzales‑Lopez supra note 1 at 6, citing Panzardi-Alvarez v. U.S., 879 F.2d 975, 980 (1st Cir. 1989).
[5] Black’s Law Dictionary 1248 (8th ed. 2005).
[6] Gonzales‑Lopez supra note 1 at 2‑5.
[7] Id.
[8] Gonzales‑Lopez supra note 1 at 10.
[9] Gonzales‑Lopez supra note 1 at 2‑5.
[10] Gonzales‑Lopez supra note 1 at 11.
[11] Gonzales‑Lopez supra note 1 at 13.
[12] U.S. v. Gonzalez‑Lopez, Petition for a Writ of Certiorari, No. 05‑352, Sept. 2005.