Elevating choice over quality of representation: United States v. Gonzalez-Lopez.

• Author: Mezzina, Paul Alessio

The Supreme Court's Counsel Clause jurisprudence generally has been preoccupied with the effect of alleged violations on the fairness and reliability of the trial process. (1) This approach seemed ripe for reexamination after Crawford v. Washington, which held that the Sixth Amendment does not provide a substantive guarantee of a fair trial, but rather specifies the procedural safeguards that must be present for a trial to comport with the Constitution. (2) Last Term, in United States v. Gonzalez-Lopez, (3) the Court eliminated the need to revisit these problematic precedents by redefining the criminal defendant's right "to have the Assistance of Counsel for his defence." (4) In holding by a 5-4 vote that a defendant's right to counsel is necessarily violated whenever he is erroneously deprived of his first-choice attorney, the Court declared that "counsel of choice"--the liberty to choose one's lawyer--was the central meaning of the Counsel Clause. (5) It thereby imported customary practice into the Constitution without a sound basis either in precedent or in the text, structure, or historical purpose of the Sixth Amendment.

Shortly after Cuauhtemoc Gonzalez-Lopez was charged with conspiring to distribute marijuana in the Eastern District of Missouri, he retained California lawyer Joseph Low to represent him. (6) Low applied to the district court for admission pro hac vice, but was twice rebuffed without explanation. (7) Finally, the court explained that it had denied Low's application because he had violated the Missouri Rules of Professional Conduct by communicating with Gonzalez-Lopez and with the defendants in another case without their respective attorneys' permission. (8) Gonzalez-Lopez proceeded to trial with a local attorney, Karl Dickhaus, and was convicted. (9)

The Eighth Circuit vacated the conviction and remanded the case for a new trial. (10) The panel first held that the Missouri Rules of Professional Conduct do not prevent a lawyer from communicating with a represented party unless the lawyer is representing another party in the same case. (11) Not only had the district court denied Low's application based on its erroneous interpretation of a local rule, but it had also failed to consider the effect of its decision on Gonzalez-Lopez's Sixth Amendment right, as a "non-indigent criminal defendant[]," to be represented by his preferred counsel. (12) The panel concluded that Gonzalez-Lopez had been denied his Sixth Amendment right to counsel of choice and that this denial could not constitute harmless error. (13)

The Supreme Court affirmed. Writing for the Court, Justice Scalia (14) rejected the government's argument that the Sixth Amendment is not violated unless a defendant's lawyer is ineffective within the meaning of Strickland v. Washington. (15) Instead, he concluded that denial of counsel of choice mandates reversal even if substitute counsel's performance was neither deficient nor prejudicial to the defendant. Justice Scalia explained that the right to effective counsel derives chiefly from the Due Process Clause and the Sixth Amendment's "purpose of ensuring a fair trial," (16) whereas the right to choose one's attorney is the "root meaning" of the Counsel Clause. (17) The Court would not require proof of prejudice, therefore, because doing so would substitute a general "fairness" standard for the specific procedural protection guaranteed by the Counsel Clause. (18)

Justice Alito dissented, (19) maintaining that a defendant who is convicted after being wrongfully denied his first-choice attorney is not entitled to reversal unless he can make "at least some showing" of an adverse effect on the "quality of assistance" he received at trial. (20) Though agreeing with the majority that the Counsel Clause guarantees "a limited right to be represented by counsel of choice," Justice Alito argued that "the focus of the right is the quality of representation that the defendant receives, not the identity of the attorney who provides the representation." (21) Therefore, he said, a defendant's Sixth Amendment rights are violated only when he is wrongfully deprived of the level or quality of legal assistance that his first-choice attorney would have provided. (22)

By declaring counsel of choice to be the core meaning of the Counsel Clause and relegating the entitlement to effective counsel to the Sixth Amendment's penumbra, the Court eliminated the contradiction between Crawford's insistence on firm procedural guarantees and the ubiquitous prejudice requirement in its right-to-counsel jurisprudence. The majority's decision to recognize the traditional means of implementing the right to counsel-that is, private selection and retention--as an aspect of the right itself went well beyond what the Court's precedent required. The Court could better vindicate the text, structure, and historical purpose of the Sixth Amendment with an interpretation of the Counsel Clause that guarantees a baseline of effective legal assistance to every defendant who can afford it.

Although the right to counsel of choice has been widely acknowledged and enforced in the courts of appeals, (23) its career in the Supreme Court provides little support for the Gonzalez-Lopez majority's conclusion that it is the central meaning of the Counsel Clause. The right appeared for the first time in 1932 in Powell v. Alabama, (24) which reversed the convictions of the so-called "Scottsboro Boys" on two independent grounds: that the defendants had not been given a "fair opportunity to secure counsel of [their] own choice," and that the court's appointment of counsel to represent them "pro forma" on the morning of trial was not constitutionally sufficient. (25) Powell thus involved complete deprivation of counsel. (26) Similarly, in Chandler v. Fretag, the Court held that a petitioner who was denied "any opportunity whatever to obtain [private] counsel," and for whom no counsel was appointed, was convicted without due process. (27) Chandler, like the Scottsboro Boys, had suffered a total deprivation of counsel. (28)

It thus appears that the supposed right to counsel of choice was born out of the reality that private retention of counsel was the only way for many defendants to obtain meaningful legal assistance. The Court acknowledged as much when it said, in Wheat v. United States:

[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers. (29) One commentator on Wheat noted that the Court had failed to identify a source for the right to select one's own counsel in the text, structure, or underlying values of the Sixth Amendment, and hoped that "the Court will soon find the opportunity to clarify just what it is about the Sixth Amendment that compels the recognition of a right to counsel of choice." (30) In Gonzalez-Lopez, the Court let such an opportunity pass.

The right to counsel of choice is also difficult to reconcile with...