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It is not often that the movie “My Cousin Vinny” � or any movie, for that matter � is invoked during a Supreme Court argument. But on Tuesday, the 1992 movie about a personal injury lawyer from Brooklyn who represents a relative in a murder trial in Alabama seemed right on point. The question before the Court: How important is the right of paying defendants to be represented by the lawyer of their choice? Quite important, bordering on fundamental, seemed to be the answer of most justices, ranging from Antonin Scalia to David Souter. In a lively, hourlong argument in the case United States v. Gonzalez-Lopez, justices took a rare excursion into examining the merits and foibles of the legal profession. A majority appeared to agree that even if a defendant picks a lawyer who is an inexperienced relative � as in the movie � or a lawyer determined to make an outlandish argument, that is the defendant’s constitutionally protected right. In the movie, by the way, Vinny warms to the task and ultimately gets his cousin and his cousin’s friend off the hook. In the case before the Court, a Missouri federal trial judge barred the first-choice California lawyer of drug-conspiracy defendant Cuauhtomec Gonzalez-Lopez, leaving him with a St. Louis lawyer who had never argued a criminal case, and lost. The U.S. Court of Appeals for the 8th Circuit tossed out Gonzalez-Lopez’s conviction, ruling that the judge’s improper exclusion of the first lawyer amounted to a structural defect that warranted automatic reversal of the conviction. Deputy Solicitor General Michael Dreeben argued that reversal should not be so automatic, urging that some kind of inquiry be required to determine if the rejection of a first-choice lawyer prejudices the outcome of a case, especially when the replacement lawyer is competent. That kind of inquiry misses the point, Scalia bellowed. “I don’t want a competent lawyer; I want a lawyer who will get me off,” he said. “I want the lawyer who will invent the Twinkie defense.” “Twinkie defense” is the derisive shorthand phrase referring to the defense argument developed in the 1970s that a diet high in sugar can lead to diminished capacity and less culpability for crime. Scalia hastened to add that he thought the Twinkie defense was crazy but that a client ought to have the right to pick a lawyer who will try crazy strategies that might just work. Souter saw an even bigger issue at stake in the case: the “autonomy interest” of the client. Tied up in the Sixth Amendment right to counsel, Souter suggested, was the ability of the defendant to direct his or her defense. Justice John Paul Stevens also said the “autonomy interest is powerful,” describing the defendant’s experience of going on trial as “very traumatic.” Chief Justice John Roberts Jr. appeared to dismiss that argument, however, suggesting that whatever right exists to counsel of choice, it is not a defendant’s right to the “expression of autonomy.” Roberts also warned that if a right to counsel of choice is given too much weight, there will be nothing to stop it from being applied in cases of appointed counsel for indigents, as well. Jeffrey Fisher, the lawyer for defendant Gonzalez-Lopez, generally received easier questions than Dreeben, and he scored points when he said that automatic reversal is the proper remedy when “the government affirmatively interferes” with a defendant’s choice of counsel. It happens rarely, Fisher said, but when it has, all the appeals courts that have ruled on the issue have adopted an automatic-reversal rule. Justice Samuel Alito Jr. offered the hypothetical of a defendant who wants a relative, a real estate lawyer, to defend him, but when that lawyer is barred by the judge, the replacement lawyer is someone with a national reputation in criminal work who still loses nonetheless. Would that defendant be able to win reversal? Fisher said yes, at which point Scalia gleefully said, “A real case of �My Uncle Vinny’!” slightly mislabeling the movie. But Fisher picked up the point, asserting the “autonomy interest” a defendant should enjoy. Fisher ran into some trouble when Roberts asked whether the rule he was asserting would also apply to a defendant’s appeal. If the Supreme Court itself, for example, refused to admit a lawyer of choice pro hac vice, would that be a Sixth Amendment violation? Fisher, a lawyer with Davis Wright Tremaine, was caught off-guard but said, “Yes, this is a right that would go forward on appeal.” Justice Ruth Bader Ginsburg asked incredulously whether that means the Supreme Court would have to repeat oral arguments in cases where a party’s preferred lawyer was not accepted. Scalia tossed Fisher a lifeline, noting that the right of counsel has different dimensions in the appeals context. Fisher told the justices, “I haven’t thought through” the appeals issue, and his momentary misstep seemed to have been fixed. Tony Mauro can be contacted at [email protected]

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