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The U.S. Supreme Court last week sought to answer the question: How important is the right of paying defendants to be represented by the lawyer of their choice? A majority of the justices appeared to agree that whether a defendant picks a lawyer who is an inexperienced relative or a lawyer determined to make an outlandish argument, that is the defendant’s constitutionally protected right. A Missouri federal trial judge had barred drug-conspiracy defendant Cuauhtomec Gonzalez-Lopez’s first choice of attorney, leaving him with a St. Louis lawyer who had never argued a criminal case. The lawyer lost and Gonzalez-Lopez was convicted. The 8th U.S. Circuit Court of Appeals tossed out his conviction, ruling that the judge’s exclusion of the first lawyer amounted to a structural defect, warranting automatic reversal of the conviction. Deputy Solicitor General Michael Dreeben argued that reversal should not be automatic, and urged an inquiry to determine if the rejection of a first-choice lawyer prejudices the outcome of a case. That kind of inquiry misses the point, Justice Antonin Scalia bellowed. “I don’t want a competent lawyer; I want a lawyer who will get me off,” he said. Justice David H. Souter pointed out that the Sixth Amendment right to counsel implies a defendant’s ability to direct his or her defense. Chief Justice John G. Roberts Jr., however, dismissed the argument, warning 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. Gonzalez-Lopez’s attorney, Jeffrey L. Fisher of Seattle’s Davis Wright Tremaine, argued that all the appeals courts that have looked at the issue have held that automatic reversal is the proper remedy when “the government affirmatively interferes” with a defendant’s choice of counsel. Roberts wondered what would happen if the Supreme Court itself refused to admit a lawyer of choice pro hac vice. Would that also be a Sixth Amendment violation? Fisher was caught off-guard and said, “Yes, this is a right that would go forward on appeal.” Justice Ruth Bader Ginsburg asked incredulously whether that meant that 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. U.S. v. Gonzalez-Lopez, No. 05-352. CRIMINAL PRACTICE The justices last week also delved into the insanity defense issue. Eric Clark was 17 when he shot Police Officer Jeffrey Moritz in 2000. Clark had been hospitalized for severe mental illnesses in the past, and at trial his lawyers tried to establish both that he was insane and that he lacked the criminal intent, or mens rea, to fit the definition of first-degree murder. The judge ruled that under Arizona law the mens rea argument was barred. As for the insanity defense, the judge allowed evidence only to demonstrate that Clark did not know that his act was wrong. That is only one part of the traditional 19th-century “M’Naghten Test” used by most states. The other prong-whether the defendant knew the “nature and quality” of what he did-is not part of Arizona’s insanity defense law. With those restrictions in place, the judge ruled that insanity had not been proved, and Clark was found guilty of first-degree murder. Clark was sentenced to life in prison, not in a mental hospital, as his lawyers had sought. The outcome of the court’s first look at the insanity defense in decades was difficult to predict. Ever since John Hinckley Jr., the man who shot President Ronald Reagan in 1981, used the defense successfully, states have restricted its scope. The issue before the high court is whether the limitations on the insanity defense and the mens rea determination violated Clark’s due process rights. At the hearing, several justices seemed to accept the argument by Arizona and the Bush administration that states have broad discretion in limiting the insanity defense-even to the point of eliminating it altogether, as several states have done. Flagstaff, Ariz., lawyer David Goldberg argued that whether Clark knew right from wrong was only part of the relevant analysis. “A person could know in the abstract that killing a human being was wrong, but he could also not think he was killing a human being.” Goldberg said that Clark thought he was killing one of the alien beings that haunted his psyche. Several justices appeared to believe that Clark had had sufficient opportunity to make his case for insanity, so that the separate mens rea determination was unneeded. Solicitor General Paul Clement said that Clark has “no constitutional right to make up the difference” between insanity and criminal intent. Appearing on behalf of Arizona was Randall Howe, chief appellate counsel of the Arizona attorney general’s criminal division. Justice John Paul Stevens asked him: “Does it matter whether he thinks it is right or wrong to kill Martians?” Howe replied that if Clark truly believed he was shooting a Martian, he might have had a stronger case for insanity. But Arizona contends that in the weeks before the murder, Clark made threatening statements about police and talked about luring an officer into a trap so he could shoot one. Clark v. Arizona, No. 05-5966. Centiorari granted The high court also agreed to hear the following cases: CRIMINAL PRACTICE The justices will review the murder conviction of Mathew Musladin, who killed his estranged wife’s boyfriend. At trial, the victim’s family sat behind the prosecution’s table, in clear view of the jury, wearing buttons with the victim’s photograph on them. Musladin’s state court conviction was affirmed. A California federal court dismissed Musladin’s petition for habeas corpus relief, but the 9th Circuit reversed, saying that the prejudice caused by the family’s button-wearing “interfere[d] with the right to a fair trial by an impartial jury free from outside influences.” Carey v. Musladin, No. 05-785. IMMIGRATION LAW The justices will review the case against Juan Resendiz-Ponce for attempting to re-enter the United States after having previously been deported. Resendiz-Ponce requested a California federal district court to quash the indictment because it did not allege an “overt act” that was a substantial step toward re-entering the country. The court rejected his request and Resendiz-Ponce was convicted as charged. The 9th Circuit reversed, saying that the omission of the “overt act” was fatal to the indictment; the omission could not be reviewed for harmless error. U.S. v. Resendiz-Ponce, No. 05-998. ADMINISTRATIVE LAW The justices will review whether a six-year statute of limitations applies only to lawsuits, and not to federal agencies seeking payment of money owed to the government. The case arises out of a dispute over the payment of royalties due the federal government on mining for methane gas under federal leases in New Mexico. The Minerals Management Services (MMS) of the Department of the Interior issued a letter in April 1996 to several mineral and gas lease operators and royalty payors in the San Juan Basin laying out guidelines for calculating royalties on coalbed methane. MMS then issued letters to Amoco Production Co. that it was deficient in its royalty payments to the government in both 1989 and in 1996. A D.C. federal court granted the government’s motion for summary judgment. The D.C. Circuit affirmed, holding that an administrative order assessing additional royalties is not a claim for money damages, and the statute of limitations of 28 U.S.C. 2415(a) doesn’t apply. BP America Production Co. v. Watson, No. 05-669.

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