Should proving the Sixth Amendment right to proceed with the counsel of choice depend on whether the deprivation of that right also resulted in compromising a defendant’s right to a fair trial?
The Sixth Amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defense.” In Cuauhtémoc Gonzalez-Lopez’s criminal trial, the district court refused to allow Gonzalez-Lopez to hire the attorney of his choice. On review, the Eighth Circuit held that this denial violated Gonzalez-Lopez’s Sixth Amendment right to proceed with the counsel of his choice. Gonzalez-Lopez argues that the Eighth Circuit’s holding that the district court violated his Sixth Amendment right should stand. The government argues that the Eighth Circuit’s ruling conflicts with the Supreme Court’s ‘right to counsel’ decisions, which hold that a criminal defendant cannot obtain reversal of his conviction unless he establishes that an alleged error implicating his Sixth Amendment right to counsel compromised his right to a fair trial.
Questions as Framed for the Court by the Parties
Whether a district court's denial of a criminal defendant's qualified right to be represented by counsel of choice requires automatic reversal of his conviction?
On January 7, 2003, a grand jury sitting in the Eastern District of Missouri charged Gonzalez-Lopez with conspiring to distribute more than 100 kilograms of marijuana. Petition for cert at 3. Gonzalez-Lopez’s family hired Texas attorney John Fahle to represent Gonzalez-Lopez. Id. at 3. Fahle thereafter appeared on Gonzalez-Lopez’s behalf at the arraignment and detention hearing. Id.
Despite having Mr. Fahle (hereinafter “Fahle”) as a representative, Gonzalez-Lopez called California attorney Joseph Low (“Low”) to discuss the possibility of Low’s either assisting Fahle or replacing him. Id. at 9. Gonzalez-Lopez had learned of Low’s reputation as a trial attorney from the defendants in another drug conspiracy case in the same district. Id. After meeting with Low at the jail in Farmington, Missouri, Gonzalez-Lopez retained him. Id. Although Low had not yet entered an appearance, the Magistrate Judge accepted Low’s provisional entry on the understanding that Low would file a motion for admission pro hac vice. Brief in Opposition at 2. One week later, Gonzalez-Lopez informed Fahle that he wanted Low to be his sole attorney. Id.
Between the dates of March 17, 2003 and April 14, 2003, Low filed two applications for admission pro hac vice. See generally, Brief in Opposition. The district court denied both applications. Id. Low then filed an application for a writ of mandamus in the court of appeals, seeking to compel the district court to admit Low. Id. The court of Appeals dismissed Low’s application. Id. On April 25, 2003, despite the denial of Low’s applications, Fahle moved to withdraw as counsel for Gonzalez-Lopez and to continue Gonzalez-Lopez’s trial. See generally Petition for cert. The district court granted both motions and ordered that Low not speak to Gonzalez-Lopez. Id.
On advice from Low, Gonzalez-Lopez retained local attorney Karl Dickhaus. Dickhaus is primarily a consumer protection attorney specializing in “junk fax” law, prosecuting claims under the Telephone Consumer Protection Act. Brief in Opposition at 2.
Before this case, Dickhaus had never tried a federal criminal case. Id. Despite Dickhaus’s lack of relevant experience, Low chose him to serve as local counsel because Dickhaus was the sole active graduate of Gerry Spence’s Trial Lawyers College in the St. Louis area, and Low was confident that his own motion for admission pro hac vice ultimately would be approved. Brief in Opposition at 3.
Eventually, the district court issued an order explaining why it had denied Low’s motions for admission pro hac vice. Petition for cert at 5. The court indicated that in another case before it, Low had “contacted a criminal defendant with pre-existing legal representation, interfered with the criminal defendant’s representation, and attempted to circumvent the Court’s ruling on a continuance of the trial setting.” Petition for cert at 6. Thus, the reasons for the denials of Low’s motions were unrelated to Gonzalez-Lopez’s case.
On July 7, 2003, Gonzalez-Lopez’s trial commenced. Id. at 4.That day the district court denied Low’s third motion for admission pro hac vice and Dickhaus’s request that Low be permitted to sit at counsel table. Id. at 5. Instead, the district court limited Low to the public section of the courtroom and forbade contact between Low and Dickhaus during trial proceedings. Brief in Opposition at 3. Gonzalez-Lopez himself was unable to meet with Low until the district court, upon learning that Low had been prevented from visiting Gonzalez-Lopez at the jail, ordered that jail visits by Low be permitted. Id. On July 11, 2003, the jury found Gonzalez-Lopez guilty on the sole conspiracy count. Petition for cert at 4. The court of appeals reversed based on Gonzalez-Lopez’s inability to have Low represent him at trial. Petition for cert at 4-5. The government appealed to the Supreme Court and argued that the defendant should also have the burden of proving that the denial of right to choose counsel also resulted in an unfair trial. The Supreme Court granted review on January 6, 2006.
The Supreme Court’s answer to the question of whether automatic reversal is warranted when a criminal defendant is denied the counsel of his choice will depend on the Court’s Sixth Amendment analysis. As a general matter, the Sixth Amendment provides criminal defendants with the right to freely select their counsel. See United States v. Gonzales-Lopez, 399 F.3d 924, 928 (8th Cir. 2005). This right in inextricably linked to a defendant’s right to shape his own defense. See Id. This right, however, is not absolute, and can be limited by the court’s compelling need to administer justice with order and civility. See Id. at 929.
As an initial matter, the Eight Circuit in this case found error in the district court’s denial of the defendant’s choice of counsel. Id. at 932. The court based its decision on the district court’s improper statutory interpretation of the applicable state ethical rule, Missouri Rule 4-4.2. Id. at 930-932. By granting certiorari to this case, the Supreme Court is not concerned with this finding by the Eighth Circuit, and will assume that the district court did err in its interpretation of the statute. The Supreme Court’s concern in this case is in deciding what standard the Court of Appeals should use when faced with an error which denied the defendant representation by counsel of his choosing.
The main issue in this case, thus, is must an appeals court conduct a harmless-error review, or automatically reverse the lower court’s decision? Most constitutional defects do not require automatic reversal: rather, the defendant on appeal must demonstrate that the defect in question was harmful to his case. Or in other words, that, but for the defect, the outcome would have been different. See Id. at 932. If the appellate court finds that the defect is unimportant or insignificant to the defendant’s conviction, it deems the error “harmless” and affirms the conviction. Id. Conversely, if the appellate court finds the defect important enough to be outcome determinative, it will typically reverse the conviction and order a new trial.
The Supreme Court has identified two types of errors in the criminal trial setting: trial errors and errors reflecting structural defects. See Id. at 932. Trial errors occur while the case is being presented to the jury, and are subject to harmless-error review. See Id. Structural defect errors are a limited class of constitutional errors that are not subject to harmless error review—these errors are “so intrinsically harmful as to require automatic reversal.” Id. (quotation omitted). In its holding, the Eight Circuit found that the type of error at issue in this case was a structural defense, and thus deserving of automatic reversal. Id. at 933. A majority of the circuits which have addressed this issue hold this view as well. See Id.
In its reasoning, the Eight Circuit found that denial of one’s representation of choice is not a trial error since it was not the sort of error which occurred during the presentation of particular evidence, and could not be assessed in light of other evidence. See Id. (citation omitted). Rather, the erroneous denial of counsel of the defendant’s choosing belonged “in the class of errors which reflect a defect in the framework of the trial mechanism.” Id. at 934 (citation omitted). This is so because a defendant’s selection of his attorney affects the entire trial process, from beginning to end. See Id. Ultimately, this choice “derives from the Sixth Amendment principle wherein the defendant has the right to decide the type of defense he will mount.” Id. at 935.
The Petitioner, however, emphasizes that a defendant’s right to choose counsel is qualified, and lies at the periphery of the Sixth Amendment, not its core. Brief for Petitioner at 11-12. The Petitioner further argues that a defendant must establish prejudice in order for an appellate court to reverse the trial court’s conviction. Id. at 8. In fact, Petitioner argues that Sixth Amendment jurisprudence demands a showing of adverse effect on the trial process before a trial court conviction can be reversed.
The issue that will be decided by this case involves a defendant’s Sixth Amendment right to counsel and whether or not a defendant’s right is denied by a court’s refusal to allow a defendant to their own counsel. In addition, the Supreme Court must also decide whether or not a defendant will have to show that the inability to choose their own counsel resulted in a denial of the right to a fair trial.
The repercussions of this case will have an effect on three groups of people: defendants, prosecutors and defense attorneys. The government has essentially proposed a two-prong test where in addition to proving that a trial court erroneously deprived the defendant of their choice of counsel, the defendant also has to show that the deprivation resulted in an unfair trial. If the Supreme Court adopts the government’s two-prong test in order to show a violation of the Sixth Amendment, defendants will have a much more difficult time in proving that their right to counsel of their choice has been violated. See generally, Brief in Opposition. Thus, defendants might be forced to accept appointed counsel or counsel who might not be as seasoned or well versed in particular areas of laws than the attorney the defendant would prefer. Particularly for the indigent defendant, this is a troubling issue. A wealthy defendant might be able to pick and choose from a number of qualified and experienced criminal defense attorneys should the court decide that one may be unavailable to the defendant. An indigent defendant might only be able to retain one attorney whom he or she feels can competently represent them. In the event that the court denies the defendant their choice of attorney, an indigent defendant may be forced to settle for counsel they do not feel as comfortable with.
Defense attorneys will also be impacted should the Supreme Court decide to adopt the government’s two-prong test. The job of advocating to their best ability for their client will surely be affected by this case. Defense attorneys who are aware they might not be their clients’ first choice must know that if the case is resolved unfavorably their client has to argue that their attorney did a poor job as an advocate. This might affect the way defense counsels approach their clients and approach the merits of the particular cases. Appellate attorneys for the defendant also face a significant hurdle in attempting to show an unfair trial. As in the case at hand, an appellate attorney is often forced to examine the skill and expertise in a trial attorney and here would have to explain why their performance warrants a finding of not one, but two constitutional violations. See generally, Brief in Opposition.
Prosecuting attorneys will also be affected by the Supreme Court’s ruling in this case. Should the Supreme Court reject the government’s two-prong test then a defendant will be able to argue that their conviction should be overturned because they did not receive the attorney that they wanted. See generally, Petition for cert. In essence, defendants will always be able to make that argument following an unfavorable outcome so long as the issue is raised during the trial. Thus, prosecutors may have to face reversal of their convictions when every other portion of the trial may have been handled to ensure fairness to the defendant. See generally, Petition for cert. With the government’s two-prong test, the prosecution will still have to ensure fairness but may not necessarily be concerned with reversal when a defendant has a competent attorney, though not the attorney of their choice.
Ultimately, this case will turn on the Court’s analysis of the Sixth Amendment. The Eighth Circuit may have been playing it safe when it chose to align itself with the majority of other circuits who have dealt directly with this issue, including the First, Third, Seventh, Ninth, and D.C. Circuits. However, there are still a number of Circuit Courts that have not ruled on the issue Thus, the current trend among circuits may not be an accurate indicator of the Supreme Court’s likely outcome. It is clear, however, that this case will settle an important issue currently plaguing Sixth Amendment jurisprudence.
Written by: Theresa Concepcion & Galit Avitan