Definitely Not Harmless: the Supreme Court Holds That the Erroneous Disqualification of Retained Counsel Warrants Automatic Reversal in United States v. Gonzalez-lopez - James A. Robson

• Publication year: 2007

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Definitely Not Harmless: The Supreme Court Holds that the Erroneous Disqualiication of Retained Counsel Warrants Automatic Reversal in United States v. Gonzalez-Lopez

In United States v. Gonzalez-Lopez,¹ the United States Supreme Court held that the erroneous disqualification of a criminal defendant's retained choice of counsel violates the Sixth Amendment² to the United States Constitution and must result in the automatic reversal of the defendant's conviction.³ In reaching this conclusion, the Court rejected the Government's argument that a defendant who is denied his choice of counsel must prove prejudice by showing the defendant's substitute counsel was ineffective within the meaning of Strickland v. Washington.⁴ Instead, the Court concluded that because a complete violation of the Sixth Amendment's Counsel Clause occurs when a defendant is deprived of his right to counsel of choice, proving prejudice is unneces- sary.⁵ Gonzalez-Lopez is an important decision because the Court's holding will deter trial judges from exercising their discretion in disqualifying attorneys due to scheduling conflicts, ethical violations, or conflicts of interest because trial judges will fear being reversed on appeal. Additionally, the decision in Gonzalez-Lopez is at odds with the Court's Sixth Amendment jurisprudence and is limited to those defendants with retained counsel, not court-appointed counsel, which illustrates the Court's willingness to treat rich and poor defendants disparately.

I. Factual Background

Cuauhtemoc Gonzalez-Lopez's family hired an attorney, John Fahle, to represent him on charges of conspiracy to distribute over one hundred kilograms of marijuana in the Eastern District of Missouri. After being arraigned, Gonzalez-Lopez hired Joseph Low, a California attorney, to represent him but did not fire Fahle. Fahle and Low represented Gonzalez-Lopez during an evidentiary hearing before a magistrate judge, who granted Low a provisional entry of appearance on the condition that Low immediately file for admission pro hac vice. However, the magistrate judge rescinded Low's provisional acceptance when Low violated a court rule during the hearing.⁶

Gonzalez-Lopez fired Fahle a week later, informing the court that Low would be his sole attorney. Low filed two applications for admission pro hac vice, which the court denied twice without comment. Low appealed by filing a writ of mandamus, which was dismissed by the United States Court of Appeals for the Eighth Circuit.⁷

Fahle moved to withdraw as counsel for Gonzalez-Lopez and for a show-cause hearing to consider sanctions against Low for violating the Missouri Rules of Professional Conduct.⁸ Low moved to strike Fahle's motion, which the district court denied. The court granted Fahle's motion to withdraw, granted a continuance so Gonzalez-Lopez could find new representation, and explained its rationale for rejecting Low's motions for admission pro hac vice—in a previous case, Low violated the Missouri Rules of Professional Conduct.⁹

Although Gonzalez-Lopez wanted Low to represent him, the case proceeded to trial with Gonzalez-Lopez being represented by Karl Dickhaus, a local attorney. Low moved a third time for admission, but was unsuccessful. The court denied Dickhaus's request to have Low sit at the counsel table with him, ordering Low to sit in the audience and refrain from all contact with Dickhaus during the proceedings. A United States Marshal sat between Low and Dickhaus to enforce the court's instruction. During the trial, Low met with Gonzalez-Lopez only once, the night before the trial ended. Ultimately, the jury returned a guilty verdict.¹⁰

Following trial, the district court granted Fahle's motions for sanctions against Low.¹¹ The court also reiterated that it denied Low's motions for admission on the ground that Low had violated the same rule in a separate matter.¹²

Gonzalez-Lopez appealed to the Eighth Circuit Court of Appeals, which vacated the conviction. The Eighth Circuit held that the district court erred in denying Low's motions for admission because the district court misinterpreted the Missouri Rules of Professional Conduct as prohibiting Low's conduct.¹³ The court reasoned that the erroneous denials of Low's motions for admission constituted a violation of Gonzalez-Lopez's Sixth Amendment right to counsel of his choosing and was not subject to harmless-error review.¹⁴ The United States Supreme Court granted certiorari to decide whether the erroneous disqualification ofa criminal defendant's choice of counsel violates the Sixth Amendment to the United States Constitution.¹⁵

II. Legal Background

A. Overview

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."¹⁶ In England prior to 1836, a person charged with a felony or treason was permitted the aid of counsel, whose sole purpose was to answer legal questions posed by the defendant.¹⁷ However, persons charged with misdemeanors or who were parties to a civil case were entitled to the full assistance of counsel.¹⁸ Of course, the English common law rule was not without its critics. Blackstone denounced the rule, writing that it was inconsistent with the remainder of English law that provided for the humane treatment of prisoners.¹⁹ In America, twelve of the thirteen colonies rejected the English common law rule, recognizing that the right to counsel should be available for all serious criminal prosecutions.²⁰ Throughout the United States Supreme Court's twentieth-century jurisprudence, the Court has frequently examined the protections afforded to criminal defendants through the Sixth Amendment. The Court's decision in Gonzalez-Lopez was merely another attempt to clarify its meaning and scope.

B. The Scope of the Sixth Amendment Prior to Gonzalez-Lopez

During the first half of the twentieth century, the United States Supreme Court recognized that the Sixth Amendment confers upon a criminal defendant the right to retain counsel as well as to have court-appointed counsel. The Court recognized this right in Johnson v. Zerbst.²¹ There, the defendant appealed the denial of his writ of habeas corpus. Prior to his incarceration, the defendant and his codefendant were tried and convicted without the assistance of counsel for counterfeiting money.²² The Court reversed the trial court's dismissal of the habeas petition,²³ holding that in all criminal proceedings in federal court where the penalty is the loss of life or liberty, the accused has the right to the assistance of counsel unless the accused waives that right.²⁴ While the Court had previously recognized the right to the assistance of counsel at trial was a fundamental right protected by the Fourteenth Amendment,²⁵ the Court for the first time in Johnson acknowledged that this same right is also protected by the Sixth Amendment.

Although the Court in Johnson recognized that the Sixth Amendment guarantees criminal defendants the right to the assistance of counsel, the Court had not yet extended the Sixth Amendment's guarantee to indigent state court defendants in the absence of special circumstances. Twenty-five years after Johnson, the Court in Gideon v. Wainwright²⁶ held that a trial court's refusal to appoint counsel to an indigent defendant pursuant to the Sixth Amendment violated the defendant's right to due process of law.²⁷ The Court observed that "any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."²⁸ The majority turned to language contained in Powell, decided thirty years earlier, to bolster its expansive interpretation of the Sixth Amendment. Justice Black, writing for the majority, quoted Justice Sutherland's rationale from Powell, noting that "'[t]he right to be heard would be ... of little avail if it did not comprehend the right to be heard by counsel.'"²⁹ Thus, the Court had come full circle by fully incorporating the Sixth Amendment to the states and ruling that regardless of socioeconomic status, defendants in all criminal matters must be allowed the assistance of counsel.

However, an indigent defendant's Sixth Amendment right to the assistance of counsel is not unlimited. In Morris v. Slappy,³⁰ the Court reversed the Ninth Circuit's grant of a habeas corpus petition to a defendant who complained that his constitutional rights were violated when the trial court denied his motion for a continuance based upon the substitution of one public defender for another.³¹ The Ninth Circuit held that the Sixth Amendment protects a defendant's right to a "meaningful attorney-client relationship,"³² which the trial court inhibited when it refused to consider allowing the defendant to be represented by his original public defender.³³ But as the Court observed, the Ninth Circuit's conclusion that the Sixth Amendment guarantees a right to a meaningful attorney-client relationship was "without basis in the law."³⁴ As a result, the Court ordered the court of appeals to reinstate the district court's judgment denying the writ of habeas corpus to the defendant.³⁵

The Court took the next step in broadening the protections of the Sixth Amendment in Faretta v. California³⁶ by holding that the right to self-representation is within the purview of the Sixth Amendment, provided the defendant makes the decision to waive counsel voluntarily and intelligently.³⁷ In Faretta the defendant waived his right to counsel despite the trial judge's belief that the waiver was a mistake. Prior to the trial, the trial judge appointed a public defender to represent the defendant, finding that Faretta had not intelligently and knowingly waived his right to the assistance of counsel.³⁸ Furthermore, the trial judge decided Faretta did not have a constitutional right to conduct his own defense.³⁹ The California Court of Appeals affirmed the trial judge's decision, the California...