Defense Counsel of Choice—Gonzalez-Lopez

In a decision announced yesterday, the United States Supreme Court held that a criminal defendant’s choice of lawyers at trial is fundamental and that any erroneous denial of a defendant’s first-choice representation warrants a reversal per se.^[1] Writing for the majority in U.S. v. Gonzalez‑Lopez, 548 US ____ (2006) (J. Alito dissenting), Justice Antonin Scalia found that “the error violated respondent’s Sixth Amendment right to counsel of choice and that this violation is not subject to harmless-error analysis.”^[2]

We previewed the facts of this case last April, noting that issue on appeal arose when a Missouri magistrate judge denied Mr. Gonzalez‑Lopez’s out‑of‑state lawyer’s application to appear pro hac vice.^[3] Instead, the defendant was represented by an attorney who was conducting a federal criminal case for the first time. At trial, Mr. Gonzalez‑Lopez was convicted for conspiring to distribute marijuana and was sentenced to 292 months in prison.^[4]

The Supreme Court classified this type of constitutional violation as belonging to a class of “structural defects,” or those that “’affec[t] the framework within which the trial proceeds,’ and are not ‘simply an error in the trial process itself’.”^[5] Other constitutional violations in this class include the denial of the right of self-representation, the denial of the right to public trial, and the denial of the right to trial by jury.^[6]

Errors that fall into the “trial defects” category, in contrast, occur before a jury, are reliant on evidence and outcome, and are analyzed for harmless error.^[7] Noting that the structural defects analysis does not require the appellant to show that substitute counsel was in fact ineffective at trial, merely that he was denied counsel of choice, the majority noted that the right at stake here “lies within the root meaning of the constitutional guarantee,” and is not derivative of any other right, for instance the right to a fair trial.^[8]

From practical standpoint, Justice Scalia pointed out that it is “impossible to know what different choices the rejected counsel would have made,” and ridiculous to then assess how the outcome of the trial might have been different. In this case, “[h]armless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.”^[9]

Thus, the “[d]eprivation of the right is “complete” when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received.”^[10] However, the Court did maintain existing limits on choice of counsel, for example, when the defendant relies on court‑appointed trial attorneys.^[11]

In dissent, Justice Samuel Alito, joined by Justices Roberts, Kennedy, and Thomas, argued that what the defendant has the right to choose is not the counsel, but the counseling.^[12] Therefore, there must be a showing of prejudice resulting from the denial of choice of quality of counsel before an appeals court should reverse the effects of trial.^[13]

In response, the majority answered that “we rest our conclusion of structural error upon the difficulty of assessing the effect of the error,” adding that “the dissent that creates a single, inflexible criterion, inconsistent with the reasoning of our precedents, when it asserts that only those errors that always or necessarily render a trial fundamentally unfair and unreliable are structural.”^[14]

Finally, the majority expressly stated that the decision announced this week does not infringe on the “authority of trial courts to establish criteria for admitting lawyers to argue before them,” or to make other logistical decisions that could “effectively exclude” a defendants first‑choice counsel.^[15]

The issue in the next generation of choice of counsel challenges could focus on the court’s “denial” of counsel relative to the type of review required on appeal. At any rate, the gate‑keeping power of the pro hac vice petition is less formidable. The next step should be to classify it as a purely administrative function in federal courts.

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[1] U.S. v. Gonzalez‑Lopez, 548 US ____ (2006)(J. Alito dissenting).
[2] Gonzalez‑Lopez at 12.
[3] Gonzalez‑Lopez at 1-2.
[4] U.S. v. Gonzalez‑Lopez, 399 F.3d 924 (8th Cir. 2005). See also detailed analysis of facts on scotusblog.com, Apr. 14, 2006.
[5] Gonzalez‑Lopez at 8, citing Arizona v. Fulminante, 499 U. S. 279 (1991).
[6] Gonzalez‑Lopez at 9.
[7] Gonzalez‑Lopez at 8
[8] Gonzalez‑Lopez at 7.
[9] Gonzalez‑Lopez at 10.
[10] Gonzalez‑Lopez at 7.
[11] Gonzalez‑Lopez at 11 (agreeing with the dissent that “the right to counsel of choice does not extend to defendants who require counsel to be appointed for them.”), citing Wheat v. US, 486 U.S. 153 (1988) and Caplin & Drysdale v. US, 491 U.S. 617 (1989).
[12] Gonzalez‑Lopez at dissent 1-2.
[13] Gonzalez‑Lopez at dissent 2.
[14] Gonzalez‑Lopez at ftnt. 4.
[15] Gonzalez‑Lopez at 11.