Timothy P. O'Neill

Chicago Daily Law Bulletin
Vol.152, Issue 176

September 08, 2006

Fantasies of Defense Lawyers and Justices

What is the criminal-defense lawyer's fantasy?

Let's start with 330 peremptory challenges at one trial.

In 1925, Judge Frank Murphy presided over a murder trial in Detroit. (And yes, this was the same Frank Murphy who would later become a justice on the U.S. Supreme Court.) The defendants were Dr. Ossian Sweet and ten of his friends and family. On the same day the black Sweet moved into an all-white neighborhood, his house was set upon by an angry mob. A bullet fired from a gun in Sweet's house killed a white person.

The rule in Michigan at the time was that each murder defendant received 30 peremptory challenges. This meant that the defense attorney was armed with 330 peremptory challenges. And who was the defense attorney holding 330 peremptory challenges that day in Judge Murphy's courtroom? A Chicago lawyer by the name of Clarence Darrow.

Interestingly, Darrow still had over 300 peremptories left before he agreed to the jury that was empaneled. The trial resulted in a hung jury. The prosecutor then retried only one of the defendants, Sweet's brother Henry. With Darrow again trying the case, Henry Sweet was acquitted. Kevin Boyle, Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age (2004).

It is clear that the Sweet defendants must have believed that their choice of Clarence Darrow was crucial to their success. But what if a defendant is erroneously denied his choice of counsel and is then convicted? Will this always result in a reversal on appeal? That is the issue the issue the U.S. Supreme Court recently faced in U.S. v. Gonzalez-Lopez, 126 S.Ct. 2557 (2006).

Cuauhtemoc Gonzalez-Lopez was charged in federal court in Missouri with conspiracy to distribute drugs. He wanted to be represented by Joseph Low, a California attorney. For various reasons, the trial judge rejected Low's pro hac vice motion. Over objection, Gonzalez-Lopez then retained another attorney and was convicted.

On appeal, the 8th U.S. Circuit Court of Appeals held that the trial judge erroneously denied defendant the right to be represented by Low. Concluding that this Sixth Amendment violation was not subject to harmless error review, the court reversed the conviction.

Before the U.S. Supreme Court, the government conceded that the trial court erred in depriving defendant of the chance to be represented by Low. However, the government argued that the Sixth Amendment is violated only if this resulted in the trial being unfair in some way. Because defendant alleged no actual prejudice relating to the work of his second-choice trial attorney, the government contended that his conviction should be affirmed.

The U.S. Supreme Court rejected the government's argument in a 5-4 decision. The court held that the erroneous denial of a defendant's counsel of choice is always reversible error. And in doing so the court dealt with a serious constitutional issue: are the criminal procedure guarantees in the Bill of Rights merely a means to achieve the end of a fair trial or are they ends in and of themselves that must be enforced regardless of whether the subsequent trial is fair?

For example, contrast the guarantees of the Bill of Rights with the guarantees of the Fourteenth Amendment. The Fourteenth Amendment defines an aspirational goal: that no State shall deprive a person of due process of law. Thus, the Due Process Clause defines an end without specifying the means to accomplish it. (This is also true of the Due Process Clause in the Fifth Amendment that restricts the power of the federal government.)

The Sixth Amendment, however, provides a laundry list of specific guarantees to a criminal defendant, such as the right to the assistance of counsel, the right to confront witnesses, the right to compulsory process, and the right to a speedy trial. Yet it fails to specify the ultimate end of these guarantees. Do they exist to produce a perfect trial? A fair trial? An accurate trial? Or are they ends per se?

The Gonzalez-Lopez court squarely rejected the government's argument that the right to counsel is merely a means to an end. The court bluntly stated ''[It] does not follow that the [the Sixth Amendment right to counsel of choice] can be disregarded so long as the trial is, on the whole, fair.… [The right to counsel of choice] commands, not that a trial be fair, but that a particular guarantee of fairness be provided — to wit, that the accused be defended by the counsel he believes to be the best. 'The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment.' Id., quoting Strickland v. Washington, 466 U.S. 668, 684-685 (1984).''

The court noted that the government's argument here is similar to the losing argument it made two years ago in Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the government contended that the Confrontation Clause of the Sixth Amendment embodied an instrumental, not an ultimate, value. The government argued that the purpose of the Confrontation Clause was simply to ensure the reliability of evidence, and therefore testimonial hearsay was constitutional as long as it bore ''indicia of reliability.'' Yet Crawford rejected this by holding that the Confrontation Clause ''commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.'' Crawford, at 61.

No question that both Crawford and Gonzalez-Lopez make it more difficult for prosecutors to obtain and preserve convictions. And therefore it is significant that Justice Antonin Scalia, who is usually on the prosecution's side in criminal cases, wrote both decisions.

So what's going on?

A law review article written by Professor George Thomas sheds important light on the reasons for Scalia's pro-defense positions in these cases. George C. Thomas III, When Constitutional Worlds Collide: Resurrecting the Framers' Bill of Rights and Criminal Procedure, 100 Michigan Law Review 145 (2001).

Thomas's article makes a provocative point. He argues that conventional wisdom holds that the Framers, through the guarantees of the Fourth, Fifth, Sixth, and Eighth Amendments, were trying to design an ideal criminal justice system.

Yet Thomas contends that this is dead wrong. He argues that the Framers had no interest in creating a system to either protect innocent defendants or to achieve accurate results. Rather, the purpose of these Amendments was ''profoundly antigovernment … [their purpose was] to create formidable obstacles to federal investigation and prosecution of crimes.'' At 157, 160. Thus, ''The Framers did not focus on separating the guilty from the innocent because they were concerned with curtailing the power of federal prosecutors and judges.'' At 174-175.

Recall that the Crown had recently prosecuted a number of the upper-class Founding Fathers for violations of tax laws. For example, in 1769 attorney John Adams successfully defended one of Boston's richest merchants who was charged with wine smuggling. The merchant's name? John Hancock.

Thus, Thomas argues that the criminal procedure provisions of the Bill of Rights simply ''manifested a hatred and fear of the federal government.… [The goal was to make it] as difficult as possible for the federal government to pursue its enemies.… It was not designed to produce fair outcomes or reasonable accommodations to permit more effective crime control. It was designed to hobble federal prosecution of crime.'' At 179, 232.

Thomas goes on to argue that the Warren Court's ''selective incorporation'' of the criminal guarantees of the Bill of Rights was the ultimate constitutional irony. Incorporation took the federal provisions — that were specifically intended to discourage the federal government from having a criminal system — and engrafted it on state governments, which traditionally were responsible for the vast majority of the nation's criminal prosecutions. And when some provisions proved unworkable — for example, the Warrant Clause of the Fourth Amendment — the Supreme Court proceeded to gut the provision with dozens of exceptions.

Thus, Thomas argues, the Warren Court was wrong to ''selectively incorporate'' the Bill of Rights against the states. He argues that there should be two sets of rules: the strict Bill of Rights meant to discourage the federal government's criminal prosecutions, and a more flexible set of constitutional rules applied against the high-volume criminal systems of the states. Thomas contends that the federal government should be restricted by a literal reading of provisions like the Fourth Amendment's Warrant Clause, while state governments should be limited only by the lighter touch of the Fourteenth Amendment Due Process Clause. Therefore, he argues, the Warren Court took a wrong turn with ''selectively incorporation.''

Interestingly, Scalia's decision in Crawford rejected the diluted, state-prosecution-friendly Confrontation Clause doctrine of Ohio v. Roberts, 448 U.S. 56 (1980), and replaced it with a more literal, pro-defense reading. And his decision in Gonzalez-Lopez backs up a pro-defense reading of the Right to Counsel Clause with a remedy of automatic reversal. Unlike Thomas, the originalist Scalia seems to believe that the tough, antigovernment values of the 1791 Bill of Rights should actually be incorporated full-strength against the states today. It is a trend that definitely bears watching.