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Washington-Most clients-and their lawyers-believe that all lawyers are not fungible and the U.S. Supreme Court last week confirmed that belief in a key Sixth Amendment ruling. A 5-4 high court held that the Sixth Amendment guarantees a criminal defendant his or her counsel of choice, and when that right is violated, the remedy is reversal of the conviction. The decision in U.S. v. Gonzalez-Lopez, No. 05-352, affirmed the manner in which most lower courts were treating deprivation of the right to counsel of choice, said winning counsel Jeffrey L. Fisher of Seattle’s Davis Wright Tremaine. “The big worry here, once the government convinced the court to take the case, was about a rollback of the right,” explained Fisher. “With this court, if you can win a case for a criminal defendant, you don’t care if it’s 5-4. This is a tough court right now.” The high court ruling stemmed from the trial of Cuauhtemoc Gonzalez-Lopez, who was charged with conspiracy to distribute more than 100 kilograms of marijuana. The defendant did not want the lawyer hired by his family but sought out and retained Joseph H. Low IV of Newport Beach, Calif., an experienced criminal defense attorney who had successfully represented others facing similar charges. But the trial magistrate denied Low’s motion for admission pro hac vice and Gonzalez-Lopez was forced to carry on with a local attorney who had agreed to stand in temporarily while Low’s motion was pending. The district court refused to allow Low to communicate with the local attorney during the trial. Gonzalez-Lopez was convicted and sentenced to 292 months in prison. Violation ‘not complete’ The government did not dispute that Gonzalez-Lopez had been deprived of his right to counsel of choice. But the government argued that the Sixth Amendment violation was not “complete” unless the defendant could show that the substitute counsel was ineffective within the meaning of Strickland v. Washington, 466 U.S. 668 (1984)-that is, that counsel’s performance was deficient and that the defendant was prejudiced by it. Justice Antonin Scalia, writing for the majority, rejected the government’s argument. The Sixth Amendment right, he said, “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 best.” Once the defendant is deprived of his counsel of choice, no additional showing of prejudice is needed to make the violation complete, he added. The high court majority also rejected the government’s argument that the violation of the right was the type of error subject to harmless-error analysis by the courts. The high court has divided constitutional errors into two classes: “trial errors,” which occur during the presentation of the case to the jury and are subject to harmless-error analysis, and “structural errors,” which affect the framework within which the trial proceeds and which defy harmless-error analysis. The erroneous denial of counsel, wrote Scalia, “bears directly on the ‘framework within which the trial proceeds’-or indeed on whether it proceeds at all. It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.” The high court has been “very resistant” to finding any structural errors, said Quin Denvir of Sacramento, Calif.’s Rothschild Wishek & Sands, who filed an amicus brief supporting the defendant on behalf of the National Association of Criminal Defense Lawyers. “It was a great accomplishment by Jeff to persuade them that was the only way to deal with this. “There is no way to provide a remedy for this violation if you have to make a comparison showing that your counsel of choice would have done something totally different,” he said. “Lawyers can be fully competent and yet do cases totally different.” The decision does not apply to defendants with appointed counsel. Justice Samuel A. Alito Jr. dissented, saying that a defendant must make “at least some showing” that the violation adversely affected the quality of assistance that he received.

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