Judge Boils Over; Defendant's Legal Souffle Collapses

April 25, 2006
By Garry Abrams
The Daily Journal

If super chef Wolfgang Puck wanted to create a delicious U.S. Supreme Court case, he might come up with this guaranteed tasty recipe:

Take a well-seasoned former Marine turned Long Beach lawyer willing to go anyplace, anytime if a case takes his fancy.

Add a would-be client with no appetite for jail and who has been busted on drug conspiracy charges in Missouri.

Cook lawyer and client on high heat in federal court until the judge boils, declares lawyer unfit for legal consumption and throws him off the case.

Defendant is convicted and on appeal claims his goose was cooked because he had to settle for attorney with no drug case experience.

The 8th U.S. Circuit Court of Appeals agrees that defendant can pick his poison and reverses conviction on grounds that defendant was improperly denied his Sixth Amendment right to the attorney of his choice.

Prosecutors say all lawyers taste the same and appeal to the Supreme Court. Gustatorily speaking, this scrumptious legal mess proved too tempting for the high court to resist. So, last week the nine justices took a bite via oral arguments.

The justices dug in, no doubt, because the prosecution of raises a fundamental constitutional question - a defendant's right to the exact lawyer of his or her choice, provided that the defendant has the money to afford that counsel. And money, of course, is often the key ingredient in any successful legal souffle.

Frankly, it would be surprising if the court had turned down this dish. Compared with the bland, dry stuff the court often feeds on, this concoction has got colorful characters, intriguing circumstances and well-written briefs in addition to a bedrock constitutional issue - ingredients capable of spicing up any court calendar.

When I saw that this matter had a Southern California flavor, I couldn't stop myself from taking a peak at how the prosecution of Cuauhtemoc Gonzalez-Lopez perked its way to the top of the judicial food chain.

Joseph H. Low IV, the Long Beach lawyer bounced from the case, surprised me when he told me that from his point of view the matter was not at all appetizing.

"This whole case stinks," Low said, summing up in four words the many hassles and complications he says he endured, including having a U.S. Marshal assigned to monitor his deportment.

Low has developed a reputation as an aggressive criminal defense attorney and has received several awards for his work, including Trial Advocate of the Year from the American Board of Trial Advocates. He also markets himself extensively over the Internet as a lawyer dedicated to battling "oppression by federal and state government." Moreover, Low had recently tried a case in the Missouri district where Gonzalez-Lopez had been busted by federal drug agents.

Suffice it to say that Gonzalez-Lopez decided he must have Low to represent him.

And - once Low heard Gonzalez-Lopez' side of the story including the prospective client's claim of innocence - Low agreed.

However, the federal District Court denied Low's application to try the case as an out-of-state lawyer.

There were other complications, too, including infighting between Low and a lawyer hired by Gonzalez-Lopez's family. But the bottom line is that the Justice Department opted to appeal the 8th Circuit's decision vindicating Low to the Supreme Court. The department asserted that unless a defendant could show that a particular lawyer would have affected the outcome of a trial, there was no need to reverse a conviction.

To help oppose the department's appeal, Low hooked up with Sixth Amendment expert Jeffrey L. Fisher of Davis Wright Tremaine's Seattle office.

Fisher gave me another food-based description of the key dispute in the case. That dispute is over whether "lawyers are fungible," Fisher said. That is, are lawyers commodities like bushels of wheat with one bushel very much like another?

In his brief and during oral arguments, Fisher argued forcefully that lawyers are not peas in a pod. Lawyers, Fisher maintained, are more like authors. Some, like Shakespeare, tell a better story than other scribblers, Fisher claimed, noting that a good legal defense consists of a tale well told.

And, I would argue, that's a matter of taste.

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