Constitutional law and criminal procedure.

• Author: Dennis, Corey M.

Criminal Defendant Erroneously Denied First-Choice Counsel Entitled to Automatic Reversal of Conviction--United States v. Gonzalez-Lopez, 126 S. Ct. 2557 (2006)

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." (1) The United States Supreme Court has interpreted this guarantee to protect the right of a defendant who does not require appointed counsel to choose who will represent him. (2) In United States v. Gonzalez-Lopez, (3) the Supreme Court, faced with a circuit split, considered whether a trial court's erroneous deprivation of a defendant's choice of counsel entitles him to an automatic reversal of his conviction. (4) Justice Scalia, writing for a 5-4 Court, held that the denial of a defendant's right to choose counsel violates the defendant's Sixth Amendment rights regardless of whether prejudice is shown. (5)

On January 7, 2003, Cuauhtemoc Gonzalez-Lopez (Gonzalez-Lopez) was charged with conspiracy to distribute marijuana in the United States District Court for the Eastern District of Missouri. (6) His family hired local attorney John Fahle to represent him at an evidentiary hearing before a magistrate judge, but Gonzalez-Lopez hired California attorney Joseph Low. (7) The magistrate judge initially permitted Low and Fahle to work together on the condition that Low would immediately file a motion for admission pro hac vice. (8) The judge revoked Low's admission pro hac vice, however, when Low violated a local court rule restricting the cross-examination of a witness to one attorney. (9)

Soon after, Gonzalez-Lopez informed Fahle that he wanted Low to be his sole attorney. (10) Low subsequently filed a second request to be admitted pro hac vice, which the district court and the United States Court of Appeals for the Eighth Circuit both rejected. (11) Meanwhile, Fahle filed a motion to withdraw and a complaint against Low claiming that Low violated the Missouri Rules of Professional Conduct (Rules) by contacting Gonzalez-Lopez when Fahle represented him. (12) The district court permitted Fahle to withdraw from the case but did not allow Low to represent Gonzalez-Lopez, reasoning that Low violated the Rules. (13)

On May 2, 2003, Gonzalez-Lopez went to trial and was represented by yet another attorney, Karl Dickhaus. (14) Dickhaus requested permission for Low to sit with him at the counsel table, but the district court denied the request, ordering Low to sit in the audience and to have no contact with Dickhaus. (15) The jury found Gonzalez-Lopez guilty. (16) The Eighth Circuit reversed the conviction, however, reasoning that the district court erred in interpreting the Rules as prohibiting Low's conduct and that this error violated Gonzalez-Lopez's Sixth Amendment right to paid counsel of his choosing. (17) On certiorari, the United States Supreme Court agreed with the Eighth Circuit, holding that a trial court's erroneous deprivation of a criminal defendant's choice of counsel automatically entitles him to reversal of his conviction with no need to show prejudice. (18)

The Sixth Amendment to the U.S. Constitution protects a non-indigent criminal defendant's right to choose his own counsel. (19) That right, however, is qualified and may be denied entirely. (20) For example, a criminal defendant desiring representation must choose an advocate who is a lawyer, who is qualified to practice in the relevant jurisdiction, who he can afford, and who does not have a nonwaivable conflict of interest. (21)

Rule 52(a) of the Federal Rules of Criminal Procedure, the harmless-error rule, provides that "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." (22) In Neder v. United States, (23) the United States Supreme Court recognized that there is "a limited class of fundamental constitutional errors that 'defy analysis by "harmless error" standards'" and "are so intrinsically harmful as to require automatic reversal ... without regard to their effect on the outcome." (24) The Court further explained that, for all other constitutional errors, reviewing courts must apply harmless-error analysis and disregard errors that are harmless beyond a reasonable doubt. (25)

It is well-established that a defendant alleging a Sixth Amendment ineffective assistance of counsel violation must demonstrate prejudice. (26) In Rodriguez v. Chandler, (27) the Seventh Circuit addressed a different issue: whether a defendant alleging a Sixth Amendment denial of first-choice counsel violation must demonstrate prejudice. (28) Several circuits had held that no prejudice was required and that such a defendant was entitled to automatic reversal of his conviction. (29) In Rodriguez, however, the court rejected that approach, explaining that "[a] defendant with an inept attorney is in a more precarious position than one with a competent lawyer who is the defendant's second or third choice." (30) The court held that a defendant must show that the erroneous denial of first-choice counsel had an "adverse effect" on his representation at trial to receive an automatic reversal of conviction. (31)

In United States v. Gonzalez-Lopez, the Supreme Court considered whether a district court's wrongful denial of a criminal defendant's qualified right to be represented by counsel of choice requires automatic reversal of his conviction. (32) The majority found it impracticable to review the prejudice caused by a wrongful denial of choice of counsel because the consequences of the denial were not quantifiable and harmless-error analysis in such a context would constitute pure...