What Does the Right to Counsel Protect, and What Remedies Exist for Its Violation?

United States v. Gonzalez-Lopez

In this case there was a great confusion about lawyers, and the defendant ended up in a situation where he was not allowed to communicate with the lawyer of his choice. He argues that his Sixth Amendment right to counsel was violated. The majority rejects arguments that ‘abstract from the right to its purposes, and then eliminate the right.’ While the right to effective assistance of counsel requires the defendant to show prejudice the Court argues that the right to effective assistance is derived from the Due Process clause and that this is inherent in that particular right (not effective necessarily implies ineffective). “The right to select counsel of one’s choice, by contrast, has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial. It has been regarded as the root meaning of the constitutional guarantee.” The Court then considers whether the error was harmless and explains that while the right to effective assistance of counsel is subject to such exceptions, the Sixth Amendment is violated “whenever the defendant’s choice is wrongfully denied.” The effect is not quantifiable but pervasive.

The dissent argues that what the Sixth Amendment protects is the assistance of counsel, and that defendants should therefore be required to make some showing of prejudice. The identity of the counsel present is less protected, and has been so since the creation of the Bill of Rights. The right to actual identity and presence is limited by practicality, admission to practice, confliction-of-rules and these limits are tolerable because the purpose of the right is the quality, not identity.

Then, even if the Sixth Amendment is violated “whenever” the defendant’s choice is wrongfully denied, the Amendment does not provide a specific remedy, and the fundamental fairness does not necessarily require the invalidation of the conviction. Meanwhile, the burden would be on the prosecution to show that the error was harmless. “Automatic reversal is strong medicine that should be reserved for constitutional errors that ‘always’ or ‘necessarily’ … produce such unfairness.” (Expect to see a lot more of this statement, if this term’s opinions are any indication of the future direction of the Court.) The dissent then shows some anomalous outcomes: a defendant with a second-choice brilliant counsel will get a new trial whereas one with a first-choice lousy counsel will have to show prejudice.