Scalia Joins Liberal Wing, Backs Right to Have Lawyer of Choice

By Brent Kendall, Daily Journal Staff Writer

Daily Journal - Jun 27, 2006

WASHINGTON - Endorsing the notion that no two lawyers are alike, a deeply divided U.S. Supreme Court ruled Monday that a paying defendant in Missouri should get a new trial because he was wrongly denied the lawyer of his choice, a Southern California criminal defense attorney.

Writing for a 5-4 court, Justice Antonin Scalia said it did not matter how well or poorly the defendant's substitute attorney performed because the accused had a core Sixth Amendment right to be represented by the lawyer he hired for the case, Long Beach Attorney Joseph H. Low IV.

The federal government conceded that a Missouri trial judge wrongly barred Low from trying the case, but argued that the defendant still received a fair trial.

The conservative Scalia, joined by the four members of the court's liberal wing, said a fair trial wasn't enough.

The Sixth Amendment, he said, "commands not that a trial be fair, but that a particular guarantee be provided - to wit, that the accused be defended by the counsel he believes to be the best."

At the center of Monday's ruling was Cuauhtemoc Gonzalez-Lopez, indicted in 2003 for conspiracy to distribute large amounts of marijuana.

Gonzalez-Lopez hired Low to defend him because the attorney had secured a favorable outcome for another drug conspiracy defendant in the same Missouri court.

A federal trial judge in St. Louis denied Low's motion for admission to represent Gonzales-Lopez on three different occasions, the last denial coming on the first day of the trial. U.S. v. Gonzalez-Lopez, 2006 DJDAR 8085.

The judge said Low violated a professional conduct rule in an earlier case. The 8th U.S. Circuit Court of Appeals later decided that Low had violated no rules.

With Low on the sidelines, Gonzalez-Lopez was represented instead by Karl Dickhaus, a local lawyer whom Low had hired to help out on "nonsubstantive" tasks.

Dickhaus, a consumer protection attorney who specialized in "junk fax" litigation, had never tried a federal criminal case.

The judge ordered Low to sit in the audience and forbade him from communicating with Dickhaus during the trial proceedings. Gonzalez-Lopez was convicted and sentenced to 24 years in prison.

The issue in Gonzalez-Lopez's case does not arise with much frequency. More times than not, defendants cannot afford their own lawyers, and when they can, those attorneys aren't normally denied admission without good reason.

On principle, however, the Supreme Court endorsed a belief that Low said is shared by all members of the legal profession.

"Every lawyer will tell you that we are not created equal," Low said.

Scalia said a new trial was required because there were "unquantifiable and indeterminate" consequences of substituting one attorney for another.

"Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses and style of witness examination and jury argument," Scalia wrote.

The choice of attorney, he said, also affects whether a defendant plea bargains or decides to go to trial.

Scalia's ruling prompted the first written dissent from Justice Samuel A. Alito Jr. since he joined the court in January.

Alito, joined by Chief Justice John G. Roberts Jr. and Justices Anthony Kennedy and Clarence Thomas, said a defendant who is denied his chosen lawyer should not automatically receive a new trial.

"Instead, a defendant should be required to make at least some showing that the trial court's erroneous ruling adversely affected the quality of assistance that the defendant received," Alito wrote.

Scalia said that nothing in Monday's ruling changed earlier court holdings that limited the counsel-of-choice right.

That right, he said, does not extend to defendants who can't afford their own lawyers. And judges, he said, still can enforce court rules that determine which lawyers can appear in their courtrooms.

Low said he was "enormously pleased" with the ruling, but added, "I can't figure out why the four [dissenters] didn't see it that way."

Stanford Law School's Supreme Court Litigation Clinic assisted in preparing Gonzalez-Lopez's case, which was argued by Jeffrey L. Fisher of Davis Wright Tremaine in Seattle.

In other news Monday, the court decided that errors in enhanced criminal sentences can be harmless, meaning that defendants are not automatically entitled to have those sentences revisited. Washington v. Recuenco, 2006 DJDAR 8085.

The question arose after the justices' landmark ruling in Blakely v. Washington, 542 U.S. 296 (2004), that juries, not judges, must find virtually all facts that increase a defendant's sentence.

After that decision, the Washington state Supreme Court ruled that a so-called Blakely error can never be deemed harmless. The state court ordered a lower sentence for Arturo Recuenco, who had received enhanced sentence for assaulting his wife while holding a firearm.

A jury convicted Recuenco but, thanks to an error in the special verdict instructions, found that he was armed with "a deadly weapon" instead of a "firearm."

The deadly-weapon finding carried only a one-year sentence enhancement, and the "firearm" finding would have carried three years.

On a 7-2 vote, the U.S. Supreme Court, in an opinion by Thomas, reversed the state Supreme Court ruling in favor of the lower sentence.

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