April 19, 2006

"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."

Said Justice Scalia yesterday, in a case about whether a criminal defendant has an absolute right to the lawyer of his choice.
The government argued in its appeal that a new trial was not warranted unless the defendant could show that the preferred lawyer would have made a difference in the outcome....

Justice Antonin Scalia was clearly unimpressed by the argument that as long as the trial was fair and the lawyer competent, the Sixth Amendment was not violated.
Compare Justice Alito:
"Let's say the defendant wanted to be represented by a relative who specialized in real estate law," Justice Alito said. If that lawyer was disqualified and the defendant was eventually represented by an experienced criminal defense lawyer with a national reputation, "why wouldn't that be harmless error?" he asked.

That would still be "unquestionably a Sixth Amendment violation," [the defendant's lawyer] replied.


Bruce Hayden said...

Interesting. This is something that is typically ignored when talking about the right to an attorney. Does that mean the attorney of one's choice, or a competent one. In the past, it was almost possible to skip over this difference. But today, it isn't.

For example, I am a patent attorney. I have tried a couple of cases, including some to juries. But my criminal experience has been limited to defending myself against traffic infraction charges. In other words, I know little criminal law, outside that required to pass a state bar, and don't have the trial expertise to keep my client safe.

The thing is that it used to be that attorneys were generalists. Now, they are now often very specialized. The further away from IP I get, the more incompetent I get. And criminal is about as far away from IP as you can get in the law.

Now, if someone wants to (and is foolish enough to) hire me to try a civil case for them, then fine. All that is really at issue is money. But when you are talking criminal law, you are often talking incarceration. This means taking a chunk, often a big chunk, of someone's life away from them, if you lose. And that is why I think that this is an interesting discussion.

Seven Machos said...

A couple of random comments:

1. I've never argued a Supreme Court case but it strikes me as bad stretegy when a judge asks a damning question and an attorney decides to stick to the talking points, which now look ridiculous. Clearly, the defense attorney is wrong in saying that going from unqualified to qualified creates "unquestionably a Sixth Amendment violation." It's easy for me to sit here and criticize but why not say, "well, you got me there, Judge. I guess there isn't a bright-line rule, which is why Your Honors are facing this question today."

2. Alger Hiss had a great lawyer for his first trial, which ended in a hung jury. For some reason, and I've never seen a satisfactory explanation, he switched to a career corporate lawyer. He lost the re-trial. Of course, Hiss was guilty as hell.

AJ Lynch said...

It's fascinating to read about great minds literally thinking out loud. Thanks for sharing these sort of vignettes with your readers!

Goesh said...

This taxpayer says when they have an attorney appointed, they get one in good standing that has at least one year's worth of criminal law experience under her/his belt. If they have the cash to retain an entire firm, more power to them. Beggars often want butter on their bread.

Seven Machos said...

Goesh -- Your rule effectively forces all public defenders fresh out of law school to be clerks for the first year. That seems bad for public policy.

SippicanCottage said...
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pr9000 (paul) said...

"the Twinkie defense" ... is that anything like the Chewbacca defense?

Seriously, though ... what is the Twinkie defense?

Seven Machos said...

"On 27 November 1978, Dan White, a former San Francisco city supervisor who had recently resigned his position,entered San Francisco's city hall by climbing through a basement window and then shot and killed both mayor George Moscone and supervisor Harvey Milk. After White's subsequent trial for the murders, a new term entered the American lexicon: "Twinkie defense.'"...


The snopes page is really interesting. I don't know if "false" is how I would label the conclusion. However, it was one of those things that got sensationalized, like Al Gore saying he invented the Internet.

John Jenkins said...

Seven M.,

It's better to lose one judge by going down with the ship than to lose more than one by waffling and trying to distinguish a special case, especially if what you're arguing for *is* a bright line rule (which is what they wanted in this case). Giving Justice Stevens a chance to get in there with a balancing of the interests is almost like losing (you might win the balancing, but that's riskier than winning the bright lin rule).

Goesh/SM, most public defender cases I've seen (when I worked in a P.D. office) go to disposition. They aren't tried at all. If one goes to trial, and it's during someone's first year as a lawyer, there is no chance that the office will let that newbie go alone. A more experienced lawyer will, at the least, be the second chair, and more likely will displace the newbie as lead attorney on the case with the newbie as second chair. (All bets are off on misdemeanor trials though.)

Steven said...

There doesn't seem to be any obvious violation of established rights here . . . but that's probably why it made it to the Supreme Court, no?

But as far as theory is concerned, I think the whole point of the Sixth Amendment is to protect against government tyranny. Accordingly, the lines should be drawn as far from a branch of government making judgment calls as possible in favor of the defendant's judgment, to serve as a check against collusive action in railroading a defendant. Defendants should have a general right to select their representation as a guarantee against collusion, and an improper denial should automatically be presumed to have made the trial unfair.

And after all, whether an attorney is competent is not merely a function of his credentials or even record. There are additional questions of the attorney's motive and ability to work with the client. Certainly, any ethical attorney is going to do their conscious best, but unconscious opinion and the client's perception both can reduce effectiveness of representation -- in ways that very well could be unprovable but still real.

Which means even the switch of a real estate lawyer relative in favor of an experienced criminal defense lawyer with a national reputation could be a harmful but not provably harmful error.

jeff_d said...

I think Justice Scalia's question states the issue well, and I don't think it is even that close a question. The right to select one's own counsel is key to the vindication of the 6th Amendment right to Assistance of Counsel. Denial of that right on the grounds that privately paid, selected counsel is not qualified should be grounds for automatic reversal without any further inquiry, provided counsel is eligible to appear in the jurisdiction.

No matter how unqualified an objective observer may regard the attorney chosen, a defendant may have subjective reasons for his or her choice. Requiring a defendant to demonstrate prejudice or harm associated with being denied counsel of choice will impermissibly infringe on the attorney-client privilege. A trial court deciding the issue in the first instance would expect the defendant to submit the reasons he or she would be prejudiced by the denial, which would place defendant in the position of having to divulge strategy considerations in open court. This unfairly conditions the defendant's right to select his own counsel on his willingness to waive the attorney-client and work product privileges.

In addition, and more importantly, the idea that the government may exercise its own judgment over whether a particular attorney is sufficiently qualified to represent a defendant that the government itself is prosecuting turns the adversarial process on its head. It eliminates a key bulwark against government abuse that the 6th Amendment was designed to provide—the right to prepare and mount a defense unfettered by government interference.

That isn't to say the 6th Amendment right to counsel of choice is unqualified. There are several qualifications. Among them: the chosen attorney must otherwise qualify to appear in the jurisdiction, and when the government itself pays for the representation, the defendant cannot choose the attorney. Note that in the case now before the Court, the 8th Circuit held that the attorney selected by the defendant was not disqualified from appearing in that jurisdiction (reversing an earlier determination to the contrary).

It wouldn't surprise me if this opinion came down unanimously in favor of the defendant. It would be antithetical to the Framers intent, and is a frightening prospect in the abstract, to allow the government to prosecute a citizen and then force his or her privately paid lawyer off the case because the government doesn't feel such lawyer is "qualified."

Patrick Martin said...

What Jeff D. said. Think of My Cousin Vinny, one of the greatest trial lawyer movies ever made. Looked at dispassionately before the trial started, Vinny, the Karate Kid's lawyer-of-choice, was clearly incompetent, especially compared with the public defender. Should the state impose its will to mandate who the Karate Kid should have hired? That would have been very bad for him, in retrospect.

In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence. The only interest the state could have in controlling that selection is to avoid later appeals on the grounds of ineffective assistance of counsel. That could be satisfied with a strong colloquy between the judge and the defendant warning that his counsel appears incompetent and he should think about getting a new one, and if he doesn't, he gives up the right to challenge his conviction on ineffective assistance grounds.

While it seems nice and noble that the government (i.e. the prosecutor) would want to protect me, as a criminal defendant, from my own foolish choices, there's way too much potential for abuse. As a prosecutor, I knew plenty of fairly effective defense attorneys whom I think should be disbarred because of general sleaziness, if nothing else. Given the power to try to have one of them thrown off a case, I probably would have done so, and my motives would not have been altruistic.

Simon said...
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Simon said...

I continue to operate on the presumption that I must be missing something obvious in this case. I read both briefs and I still think it is absolutely clear-cut that the government has the best of it, because I'm not sure that I understand how an unlimited right to choose one's own counsel can square with what I had understood to be the power of courts to set reasonable standards for practise before themselves, and regulate exceptions to those rules. Doesn't the Supreme Court's own rule 5 circumscribe the choice of counsel available to a litigant? What about FRAP 46? To be sure, most courts have a pro hac vice rule, but the point of that rule is to make a discretionary exception to a general rule in appropriate circumstances; what becomes of the exception absent the rule? It seems to me that what is really at issue here is whether or not rules such as these - which unquestionably restrict one's choice of counsel - are unconstitutional, which is frankly absurd.

The respondents in this case seem to be asking the court to say that an application to appear pro hac vice is a mere formality, since to recognize a right of litigants to be represented by any counsel of their choice is to deny the power of a court to exclude a counsellor from practise before the court. So I think this is actually a very simple case: will the Supreme Court of the United States declare that no court - itself included - can ever again deny a pro hac vice application? What am I missing?

nunzio said...

This case isn't about "whether a criminal defendant has an absolute right to the lawyer of his choice." There is no such right. Defendants have a presumptive but qualified right to the lawyer of their choice (if they can afford that lawyer; if not, you get the guy with the gravy stain on his tie and the comb-over).

The case is about what happens when a judge messes up by wrongly denying someone their qualified right to their lawyer of choice (which everyone agrees the judge messed up on).

The Defendant says it should be an automatic reversal. The gov't says the Defendant should have to show he was prejudiced by the judge's wrong decision.

Patrick Martin said...

Simon, I haven't had a chance to read the briefs, just the newspaper report. It looks like there is no longer any dispute that the trial court improperly denied the pro hac vice motion of the desired attorney. Does the constitutional issue arise only because it must be a constitutional violation in order to entitle the man to a new trial?

I have myself on rare occasions agreed to represent someone ONLY until they could find someone else. It would indeed be a grave injustice if I were forced to stay on through the entire trial. Was the defendant given an opportunity to pick some other lawyer besides his first choice, or did the judge require that he stick with the corporate-law guy who made the first appearance?

Simon said...

My understanding is that the guy committed his crimes, and his family got him a lawyer. He wanted a whiz-bang "get me off the hook" type from California, who applied to appear pro hac vice. In the end, the accused was represented by another local lawyer, who the California guy had arranged originally as co-counsel, but then the judge said that the california lawyer could not appear pro hac vice, and personally, that's enough for me. It seems to me that you appear pro hac vice at the suffrance of the court, as an exception to the normal requirements of practising before the court, and at the court's discretion, so I would deny that there was anything improper about the court's refusal to so permit even if they had not issued an explanation for that ruling.

Simon said...

The judge didn't mandate anyone in particular as counsel, BTW. The judge simply said that THIS guy from california couldn't appear pro hac vice. The accused does not have an unqualified right to counsel; that right "is circumscribed in several important respects. Regardless of his persuasive powers, an advocate who is not a member of the bar may not represent clients (other than himself) in court," Wheat v. United States, 486 U.S. at 159. In this case the accused could select any counsel he wanted who was a member of the bar, or who the court would permit to appear pro hac vice.

Briefs in the case are here.

Adam said...

I must correct the record: My Cousin Vinny is a movie about finding the right expert witness, not about the competence of counsel.

Troy said...

I for one I'm glad to read that I'm not fungible. I feel validated.

SippicanCottage said...
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jeff_d said...

I think the procedural posture of this particular case is as nunzio described it--there is no longer any question that the pro hac petition was denied based upon legal error. So the question is whether the 6th Amendment requires that the defendant's choice of counsel be honored in the absence of statutory grounds not to honor it or whether a harmless error standard applies such that the defendant’s choice of counsel may be disregarded so long as he or she ended up with objectively competent representation.

A separate issue, and one not before the Court, is the extent to which the 6th Amendment restricts a trial court’s discretion in denying a pro hac petition. Without claiming any expertise on the law applicable to pro hac petitions, I find it hard to believe that the trial court has absolute discretion to deny them for whatever reasons it chooses. As the 8th Circuit apparently held, a denial of a pro hac petition must follow particular guidelines. I doubt whether skepticism about counsel's qualifications to handle a particular type of case is one of them.

While the 6th Amendment surely doesn't invalidate common procedural limitations on pro hac admission (such as the requirement that repeated pro hac admissions cannot be used to regularly practice in the district), I do think it requires that a pro hac petition not be denied simply because the trial court thinks a litigant would be better served by a different lawyer. In other words, the 6th Amendment would not permit pro hac admission to be used as a means for the trial court to make ad hoc judgments about the suitability of the pro hac applicant to handle the case.

Patrick Martin said...

Simon, the court of appeal held that the denial of pro hac vice was erroneous. Moreover, it appears to have been based not on qualifications per se but on protectionism for local lawyers; the original local lawyer was ticked off that this out-of-state fella had come in and stolen his client (the client says he sought out the other attorney).

Who handled the case actually did make a difference in this particular, specific case. The original attorney did not successfully attack the key testimony of the government's star witness. On remand after the appeals court sent the case back, the same star witness was demolished. According to Cody Harris at Scotusblog: "On remand, Low deposed Jorge Guillen, the government’s star witness. Under Low’s questioning, Guillen admitted to lying during his testimony and offered an alternative explanation for Gonzalez-Lopez’s actions on the night of his arrest, which undercut the government’s theory of the case."

This case, and the apparently growing use of "harmless error" to ignore substantial errors which do in fact work to deny strong procedural protections at trial to criminal defendants, concerns me greatly. In this case, it appears to be actually demonstrated by the deposition of the star witness that the defendant was ACTUALLY harmed by not being allowed his first choice of counsel.

Ehud Blade said...
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Ehud Blade said...

Sippican wrote:

"The guy with the combover and the stain on his tie always won. Always."

I guess this means that stains on clothes have prevailed as defenses in criminal cases ever since twinkie-toting Bill Clinton spilled yogurt on Monica's dress.

And got off. So to speak.

Cafeteria food stains might become jail house lawyers. But, Scalia's point ("I want to win") is better taken as plain old good advice, rather than as the sarcasm he intended.

C'mon, Antonin, Mr. Legal Antinomy (in this case) -- what criminal defendant goes to trial begging for grease-stained incompetent counsel, hoping to lose the case, and wanting to end up with "the stain" of conviction?

Hans Gruber said...

"In other words, the 6th Amendment would not permit pro hac admission to be used as a means for the trial court to make ad hoc judgments about the suitability of the pro hac applicant to handle the case."

Well said. Round 1 to Jeff!

reader_iam said...

Sometimes I think that if I ever did go to law school, I'd have a leg up just by having read all the back and forth on the comments threads of Ann's law-related posts.

Fascinating, to watch the minds at work ... .

Vocabulary-building, too.

Al Maviva said...

I think Justice Scalia's point was probably reductio absurdum demonstrating that while we would all prefer to be defended by the ghost of Johnny Cochrane, "the lawyer of our choice" cannot be the rule, it must be something less absolute than that." You could apply the rule Justice Scalia posits in his comment, as:

"If my counsel ain't It,
you must acquit."