I Am Not Fungible

Yesterday the Supreme Court heard oral argument in an interesting case involving lawyers. Specifically, it involves a defendant's Sixth Amendment right to counsel and, most importantly, counsel "of choice." The case, which the New York Times reviews here, involves a defendant in a federal drug prosecution in Missouri who wanted to bring in a lawyer from California. The defendant paid the retainer and the California attorney moved to be admitted to practice in front of the Missouri court pro hac vice. For reasons with which the appeals court did not agree, the trial court denied the motion. As a result, the defendant went to trial with inexperienced local counsel and was convicted.

On appeal, the Eighth Circuit held that denial of the defendant's counsel of choice was a so-called "structural error," meaning that the defendant was entitled to a new trial without making any particular showing of harm. The Supreme Court took the case to decide if the Eighth Circuit was right. Structural errors are few and far between. It's much more common for a defendant to be required to show that whatever right was violated actually resulted in an unfair result for him. It's hard to tell from the Times report which side had the better of oral argument.

I hope someone thinks about how the resolution of this case will effect the thousands of defendants who are represented by public defenders and appointed counsel every year. Defendants have very little choice which attorney will represent them if they can't afford to pay the bill themselves. Since that's the case, what if denial of "choice of counsel" is a structural error? Does that greatly complicate the lives of PDs when dealing with clients? Or will the Court simply give a right to those wealthy enough to afford counsel that is denied to those who can't?

Finally, I note that in reversing the conviction, the Eighth Circuit held that "lawyers are not fungible." That's good to know. I hope my girlfriend agrees!