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June 29, 2006

A couple of recent US Supreme Court decisions are worth mentioning.  I'll have more on the Court's death penalty decision in a couple of weeks.  The big decision the other day was United States v. Gonzalez-Lopez.  The defendant was indicted for conspiracy to distribute 100 kilos of marijuana, and called in a California lawyer who'd just negotiated a plea deal in a major drug case in that very district.  The district court refused to grant the attorney's pro hac vice application, though, and Gonzalez-Lopez was forced to retain another lawyer.  The case was tried; Gonzalez-Lopez lost and was sentenced to twenty-four years in prison, with the not unlikely prospect of winding up as the "wife" of someone named Bubba.

But maybe not -- the court of appeals found that the trial court erred in denying the California lawyer permission to represent the defendant, and vacated the conviction.  The government took it up to the Supremes, arguing that unless the defendant could show that he was actually prejudiced by having to use a different lawyer, the conviction should stand.

Four justices -- Alito, Roberts, Thomas, and Kennedy -- bought it, finding that as long as the trial was fair and the lawyer competent, the defendant had no room to complain.  The other five justices, though, did not, and affirmed the appellate court's decision vacating the conviction. 

In fact, not only did Justice Scalia side with the liberal wing, he wrote the majority opinion, holding that the Sixth Amendment right to counsel meant not just that the defendant had a right to a lawyer, but that he had the right to a lawyer of his own choice, and that failure to allow him to exercise that right was a "structural error" in trial that required reversal.  Scalia's stance on this had been pretty much foreshadowed at oral argument back in April, when he rebuked the government lawyer's claim that competent counsel was sufficient by declaring, "I don't want a 'competent' lawyer.  I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win."

As you might guess, I'm not one of Scalia's bigger fans; his opinions are so right wing I've wondered lately whether they have to be translated from the original German before publication.  Still, I'll give the man his due:  he nailed this one.  Lawyers aren't fungible commodities, and if a defendant has the ability to afford his own lawyer, he should have the right to pick the one he wants.

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