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US Supreme Court Review : United States v. Gonzalez-Lopez

This article previously appeared in The Constitutionalist (Sept. 2006). It is reprinted with permission.

By Thomas H. Segars

The Sixth Amendment provides the accused in all criminal prosecutions with the right to have “the Assistance of Counsel for his defense.”

Separate and apart from the more familiar, effective assistance of counsel requirement, the Supreme Court has interpreted the Sixth Amendment to provide a non-indigent criminal defendant some freedom to hire counsel of his or her choosing. See Wheat v. United States, 486 U.S. 153 (1988). In United States v. Gonzalez- Lopez, 126 S. Ct. 2557 (2006), a Supreme Court divided 5—4 held that violation of the right to hire counsel of choice defies harmless error review and, therefore, mandates reversal of an ensuing conviction without a showing of prejudice.

Facing charges that he conspired to distribute marijuana, Cuauhtemoc Gonzalez-Lopez professed innocence and, not surprisingly, wanted to hire the best attorney he could afford. His family helped him retain an attorney, but Gonzalez-Lopez quickly grew dissatisfied with his services.

In his search for replacement counsel, Gonzalez-Lopez found Joseph Low, a prominent California attorney with a track record of obtaining favorable outcomes for defendants charged with similar drug conspiracy crimes. Although Low was not admitted to the bar of the Eastern District of Missouri (where Gonzalez-Lopez would stand trial), he did have prior trial experience in that court. The two met, and Gonzalez-Lopez retained Low.

Low made a provisional appearance at a suppression hearing on the conditions that he participate with counsel of record and that he file a motion for pro hac vice admission forthwith.

During the course of the hearing, however, the magistrate rescinded Low’s provisional appearance, claiming that Low violated a “one witnessone attorney” rule by passing notes during the cross-examination of a government agent.

So began a series of decisions disqualifying Low and otherwise preventing him from counseling Gonzalez-Lopez. The District Court denied Low’s applications for pro hac vice admission and admission outright. Later, the court sanctioned Low, reasoning that his interactions with Gonzalez- Lopez during the time Gonzalez-Lopez was represented violated Missouri Rules of Professional Conduct. The court even prohibited Low from communicating with Gonzalez-Lopez or his other attorneys during trial.

At trial, Gonzalez-Lopez was represented by St. Louis consumer protection attorney Karl Dickhaus. Dickhaus had little criminal defense experience. Low had associated Dickhaus as “local counsel” to file papers, attend hearings scheduled on short notice, and otherwise provide non-substantive assistance. To enforce its no-contact order, the court relegated Low to the audience during the trial and directed a United States Marshall to stand between Low and counsel table.

The jury found Gonzalez-Lopez guilty, and the court sentenced him to 292 months in prison. On appeal, the Eighth Circuit reversed both Gonzalez-Lopez’s conviction and the sanction order entered against Low, remanding the case for a new trial. The Eighth Circuit reasoned that the District Court misinterpreted the pertinent Missouri Rule of Professional Conduct when it denied Low admission. According to the Eighth Circuit, that denial, in turn, infringed on Gonzalez- Lopez’s Sixth Amendment right to counsel of his choosing. Noting a split of authority among the Courts of Appeal, the Eighth Circuit followed the majority position and held that such a violation of the Sixth Amendment Assistance of Counsel clause mandates a new trial without the necessity of harmless error review.

The Government sought Supreme Court review of the conclusion that harmless error review was unnecessary. Significantly, the Government did not appeal from the conclusion that the District Court violated Gonzalez-Lopez’s Sixth Amendment rights by denying Low admission to its bar. By effectively conceding the constitutional violation, the Government placed the harmless error issue squarely before the Court.

An unusual majority formed by Justices Scalia, Stevens, Souter, Ginsburg, and Breyer affirmed the Eighth Circuit’s decision. Justice Alito (joined by the Chief Justice and Justices Kennedy and Thomas) dissented, reasoning that the case should be remanded to the Eighth Circuit for harmless error review.

According to the majority, Arizona v. Fulminante, 499 U.S. 279 (1991), divided constitutional errors into two comprehensive categories: (1) “trial errors,” which occur in the presence of the jury and whose effects may be “quantitatively assessed in the context of other evidence presented,” and (2) “structural defects,” which “affec[t] the framework in which the trial proceeds.” While the former are subject to harmless error analysis, the latter are not.

The majority reasoned that erroneous deprivation of the right to counsel of choice had “unquantifiable and indeterminate” consequences that made it a “structural defect” under the Arizona v. Fulminante dichotomy. In support of this conclusion, the majority explained that “[d]ifferent 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[, a]nd the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial.”

Recognizing that different counsel might make a myriad of different choices, each affecting the outcome of the proceedings, the Court reasoned that harmless error analysis would be “a speculative inquiry into what might have occurred in an alternate universe.”

In memorable fashion, Justice Scalia further reiterated during oral argument the unique and creative approaches and strategies that different lawyers can bring to their cases. Describing the sort of lawyer he would want if he were facing prosecution, Justice Scalia remarked, “I don’t want a ‘competent’ lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense.”1 Justice Alito’s dissent criticized the majority’s analysis of Arizona v. Fulminante as a false dichotomy, reading that case’s discussion of “trial errors” and “structural defects” to instead “denote two poles of constitutional error that had appeared in prior cases.” According to the dissent, resulting unfairness and unreliability should be the touchstones, meaning that “trial errors” are not the only sort of constitutional error subject to harmless error review. Instead, the dissent reasoned, “[a]utomatic reversal is strong medicine that should be reserved for constitutional errors that ‘always’ or ‘necessarily’ produce unfairness.”

The dissent argued that the Sixth Amendment most fundamentally insures assistance of counsel.

To the extent that safeguard encompasses a right to choose a particular attorney, the dissent reasoned, that right is subsidiary and necessarily limited. The dissent cited rules governing the admission to practice or to appear before a certain court, ethical prohibitions on conflicts-ofinterest, and even “mundane case-management considerations” as limits on a defendant’s right to hire a particular attorney. “These limitations … are tolerable,” the dissent reasoned, “because the focus of the right is the quality of the representation that the defendant receives, not the identity of the attorney who provides the representation.”

Although the dissent focused on the quality of representation, it was careful not to collapse its suggested test into the effective assistance of counsel test set out in Strickland v. Washington, 466 U.S. 668 (1984). Quoting Judge Easterbrook’s statement of the minority position in Rodriquez v. Chandler, 382 F.3d 670, 675 (7th Cir. 2004), cert. denied, 543 U.S. 1156 (2005), the dissent explained that a defendant should be required to show “an identifiable difference in the quality of representation between the disqualified counsel and the attorney who represents the defendant at trial” before receiving a new trial. From that framework, the dissent posited the hypothetical situation of a defendant’s “second-choice counsel” actually doing a “better job” than the disqualified counsel would have done–proof, the dissent suggested, that a violation might not necessarily prejudice the criminal defendant.

Gonzalez-Lopez showcases a divide on the Roberts Court regarding the applicability of harmless error review. Observers should watch for the Court’s competing understandings of Arizona v. Fulminante to resurface and develop in future decisions that consider whether harmless error review is appropriately applied in other contexts.

More immediately, Gonzalez-Lopez may influence how courts regulate the criminal defense bars admitted to practice before them.

Citing the Government’s effective concession of the constitutional violation, Justice Scalia disclaimed that Gonzalez-Lopez “is not a case about a court’s power to enforce rules or adhere to practices that determine which attorneys may appear before it, or to make scheduling and other decisions that effectively exclude a defendant’s first choice of counsel.” However, the case considerably raises the stakes of each decision to admit a criminal defense attorney to practice. Mindful that a wrong decision could result in a new trial, courts may be less assertive in their regulation of criminal defense bars. Whether that eventuality will be borne out–and, if it is borne out, what its effect on our profession and the clients we represent will be–remains to be seen.

Finally, the opinions provide an interesting window into the Justices’ perspectives on the very practice of law. The competing reasoning can be understood as a debate about the extent to which our profession is creative art as opposed to determinable science. The majority emphasizes the myriad opportunities for creative decision-making and counseling that attorneys face, suggesting that no two attorneys (even of comparable quality) would approach the same representation the same way. In contrast, the dissent assumes that differences in the quality of legal representation are readily identifiable, making it possible to determine which of two attorneys would have done the “better job” with respect to any given representation.

This dialogue should be of interest to all of us who try to better understand our vocation in the law.


1. Justice Scalia was referring to the diminished capacity theory supposedly advanced by Dan White when charged with the 1978 murders of San Francisco Mayor George Moscone and another public official. See People v. White, 117 Cal. App. 3d. 270, 172 Cal. Rptr. 612 (1981). Legend has it that White’s attorneys convinced a jury to convict him only of voluntary manslaughter by arguing that White ate an inordinate number of Twinkies and became so depressed that he lacked the mental capacity to commit murder. Skeptics, however, claim that the “Twinkies” never actually made their way into the argument at trial. See, e.g., (dismissing the “Twinkie Defense” as an “urban legend”).

September 1, 2006 Thomas H. Segars
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