Introduction

Choosing Your Own Lawyer

Introduction

A defendant who can afford a lawyer hires one, sometimes going so far as to fly in an out-of-state attorney he trusts, and the trial judge then refuses to let that lawyer appear at counsel table. The defendant goes to trial with someone else, is convicted, and appeals. Two questions are open on appeal. The first is whether the Sixth Amendment gave the defendant a right to the lawyer he picked, which would make the judge's refusal a constitutional wrong. The second arises only if the first answer is yes: what the appellate court must do about the wrong when the substitute lawyer may have performed perfectly well.

The governing decision is United States v. Gonzalez-Lopez, which held that the Sixth Amendment right to counsel of choice is violated when a court erroneously deprives a defendant of his selected attorney, and that the violation requires reversal of the conviction.¹ The word "erroneously" carries weight in that holding. The right has limits, and a court may sometimes properly turn a lawyer away, so only a mistaken refusal counts as a violation. The remedy then follows automatically, because the Court treated the deprivation as a structural error, meaning a defect in the framework of the trial itself that a reviewing court does not weigh against the rest of the record to ask whether the verdict would have come out differently.²

The analysis therefore runs in two steps, and each step has its own logic. A defendant who proves an ordinary constitutional error usually has to show it hurt him as well. Here, once the deprivation is erroneous, the violation is complete, and the defendant does not have to show that the substitute lawyer did worse. The reason is that the injury lies in who was chosen to run the defense, and no one can reconstruct how a different lawyer would have investigated, selected a jury, and argued the case. This chapter takes the two questions in that order, first the right and its limits, then the remedy, and closes with a working method that joins them. It begins with the backdrop: the counsel guarantees you already know, which supply the premise the choice-of-counsel right attaches to.