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The Supreme Court on Monday gave a ringing endorsement to defendants’ Sixth Amendment right to the counsel of their choice in criminal cases. Justice Antonin Scalia, writing for a 5-4 majority, said the right to counsel of choice was the fundamental “root meaning” of the Sixth Amendment’s guarantee of the right to counsel, and when that right is violated, the defendant’s conviction must be reversed-whether or not the violation resulted in an unfair trial. “Deprivation of the right is ‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received,” Scalia wrote in the case United States v. Gonzalez-Lopez. The decision was one of several handed down Monday, in what is likely to be the final week of the current term. The Court announced it would be back in session Wednesday, and it could also convene Thursday or Friday to clear its docket before it recesses for the summer. In a fractured First Amendment ruling in Randall v. Sorrell, the justices struck down a Vermont campaign finance reform law that imposed severe limits on state campaign contributions and expenditures. In the case of Kansas v. Marsh the Court ruled 5-4 that when a jury finds mitigating and aggravating circumstances are in equal balance, capital punishment can be imposed. The high court also decided, in Washington v. Recuenco, that its landmark 2004 sentencing decision, Blakely v. Washington, did not invalidate all sentences that were pending at the time. In the Sixth Amendment case before the Court, a Missouri federal trial judge refused to allow Joseph Low of Newport Beach, Calif., to represent Cuauhtomec Gonzalez-Lopez at trial on drug-trafficking charges. The judge said that Low had improperly passed notes to a local attorney in the case. Because Low was barred, the defendant hired 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. Scalia upheld the 8th Circuit decision. Scalia’s ruling produced a rare lineup on the Court, with moderates on his side and his usual conservative allies in dissent. Joining Scalia were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Monday’s ruling does not extend to defendants represented by appointed counsel and will not, Scalia said, restrict the authority of trial judges to establish criteria for admitting lawyers to argue before them. But it did represent a strong reiteration of a right that has been assumed but rarely fleshed out in Court precedent. In the landmark case Powell v. Alabama in 1932, the Court said, “It is hardly necessary to say that . . . a defendant should be afforded a fair opportunity to secure counsel of his own choice.” In his majority opinion, Scalia argued at length that the choice of one counsel over another is of fundamental importance. “Different attorneys will pursue different strategies,” he wrote. “And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial.” As a result, Scalia said, the deprivation of this right is a “structural defect” so severe that it defies the kind of “harmless error” analysis that is used to determine the importance of lesser defects in the trial process. It would be impossible, he said, to determine how a trial might have come out differently in the hands of a lawyer with a “more jury-pleasing courtroom style or a longstanding relationship of trust with the prosecutors.” Scalia also said that even if the trial using the second-choice lawyer was “on the whole fair” and fulfilled the fair-trial purposes of the Sixth Amendment, “it does not follow that the rights can be disregarded.” Jeffrey Fisher of Davis Wright Tremaine, who argued on behalf of Gonzalez-Lopez before the high court, applauded that statement as an important affirmation that fundamental rights cannot be balanced or traded away. “The Bill of Rights means what it says, and those special handful of rights it enumerates need to be followed to the letter for any criminal trial to be considered fair and just,” Fisher said. The Bush administration argued that as important as the right is, a violation should not result in the reversal of a defendant’s conviction unless a showing is made that the second-choice lawyer was ineffective or probably affected the outcome. In dissent, Justice Samuel Alito Jr. adopted that view, arguing that the right to counsel of choice is “limited” and a new trial is required only if the defendant can prove that substitution of his preferred lawyer made “an identifiable difference in the quality of representation.” Alito was joined by Chief Justice John Roberts Jr. and Justices Anthony Kennedy and Clarence Thomas. Tony Mauro can be contacted at [email protected]

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