Scalia v. Alito (1-0)

Monday the Surpreme Court decided US v. Gonzalez-Lopez [pdf]. The facts of the case were straight-forward. Gonzalez-Lopez had a trial. His family picked a lawyer who began to represent him but he wanted a different lawyer. The judge for procedural reasons didn't let this second lawyer take the case. The first lawyer withdrew but the judge still wouldn't let the second laywer take the case so Gonzalez-Lopez hired a third laywer who represented him in the trial. The second and third lawyer wanted to work together but the court wouldn't let them. Gonzalez-Lopez was found guilty. He appealed and the District Court found the lower court had "violated respondent's Sixth Amendment right to paid counsel of his choosing." All parties seem to agree that the court was in error in denying the second laywer from trying the case. So the question is, how strong is the right to pick your own lawyer and if it's denied what happens?

The Supreme Court said he deserves a reversal. It was a 5-4 decision, but the interesting thing is that the very conservative Scalia voted with the liberals (Stevens, Souter, Ginsburg, and Breyer) and wrote the opinion. The conservatives (Roberts, Kennedy and Thomas) dissented and Alito, the new Justice and often viewed as in the mold of Scalia, wrote the dissent. So we get Scalia v. Alito.

First off, let's look at the 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.

It's doesn't actually say you get to pick your own lawyer (and yes defence is spelled wrong, or at least differently). It turns out we got that in 1932 from Powell v Alabama. In this case seven black men were given essentially useless lawyers to defend them. Powell's opinion said: "It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice".

The government's case was that since Gonzalez-Lopez got a fair trial, he wasn't harmed by the fact that he didn't get his lawyer of choice so he doesn't need a reversal.

Scalia's opinion is that the right to counsel of choice isn't derived from the 6th Amendment, it is "the root meaning" of it. This came from a case in 1988 Wheat v. US where Rehnquist wrote the decision and Scalia joined. It does strike me as a bit odd than the original originalist seems to be adding a constitutional right by interpretation.

Alito agrees with the right of counsel of choice. He also quotes Wheat but to a different end, "It was not 'the essential aim of the Amendment...to ensure that a defendant will inexorably be represented by the lawyer whom he prefers'...There is no doubt, of course, that the right 'to have the Assistance of Counsel' carries with it a limited right to be represented by counsel of choice." The limits are such things as the counsel must be qualified and licensed, there must be no conflicts of interest, and possibly scheduling issues if the counsel of choice can't make the court date.

Alito begins by saying Scalia makes a mistake in his interpretation of the 6th amendment. "The majority states that the Sixth Amendment protects 'the right of a defendant who does not require appointed counsel to choose who will represent him.' What the Sixth Amendment actually protects, however, is the right to have the assistance that the defendant's counsel of choice is able to provide. It follows that if the erroneous disqualification of a defendant's counsel of choice does not impair the assistance that a defendant receives at trial, there is no violation of the Sixth Amendment."

This seems a bit weird to me. Scalia describes this as "a line of reasoning that 'abstracts from the right to its purposes, and then eliminates the right.'"

Scalia goes on to say "Deprivation 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. To argue otherwise is to confuse the right to counsel of choice--which is the right to a particular lawyer regardless of comparative effectiveness--with the right to effective counsel--which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed."

So they don't agree, but lets say they did agree that the 6th Amendment was violated in this case, what is the remedy?

Scalia says the court has found two forms of errors. Errors that occur during a trial can be judged if the error was harmless beyond a reasonable doubt. Structural errors affect the framework of the trial and hence cannot be reviewed to see if they were harmless because the effects on a trial are so large. These errors lead to reversal because the trial itself is unfair. Scalia says since any two laywers will try the case differently, "Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe." So this is obviously a structural error and must lead to a reversal.

Indeed Alito describes several hypotheticals where the second choice might be a better lawyer than the first and so on. "These possibilities would not justify violating the right to choice of counsel, but they do make me hard put to characterize the violation as "always render[ing] a trial unfair". His view is that defendant should have to show some harm from the denial of first choice of counsel.

Scalia's point is that there's no way to predict what might happen for better or worse. The one thing that we do know is that the defendant's choice, his right, is denied, so he's due a reversal. And he only held back a little. In a footnote Scalia wrote: "By framing its inquiry in these terms and expressing indignation at the thought that a defendant may receive a new trial when his actual counsel was at least as effective as the one he wanted, the dissent betrays its misunderstanding of the nature of the right to counsel of choice and its confusion of this right with the right to effective assistance of counsel."

So I gotta say I agree with Scalia here. Turning "the Assistance of Counsel" into "counsel of choice" doesn't sound like Scalia to me, but I agree with that conclusion. Alito's arguments scare me a bit. I remember his hearings when he kept saying it would depend on the facts of the case. But here he gives a lot of hypotheticals and says "Cases as stark as the above hypothetical are unlikely, but there are certainly cases in which the erroneous disqualification of a defendant's first-choice counsel neither seriously upsets the defendant's preferences nor impairs the defendant's representation at trial." Isn't this like tearing down a strawman? And even if true, I think Scalia's point is that figuring out whether it was fair or not is too difficult.