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The Structural Function of the Sixth Amendment Right to Counsel of Choice

2017; University of Chicago Press; Volume: 2016; Issue: 1 Linguagem: Inglês

10.1086/691355

2158-2459

John Rappaport,

Law, Rights, and Freedoms

Previous articleNext article FreeThe Structural Function of the Sixth Amendment Right to Counsel of ChoiceJohn RappaportJohn Rappaport Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreThe Sixth Amendment guarantees “the accused,” “[i]n all criminal prosecutions,” “the Assistance of Counsel for his defence.”1 The right to court-appointed, publicly funded counsel this language calls to mind today is a recent invention.2 The “root meaning” of the Sixth Amendment’s Counsel Clause, the Supreme Court has stressed—the one with ties to the founding tradition—is the right to retain counsel of one’s choice.3 Yet until just last Term, no criminal defendant had ever persuaded the Court to reverse a conviction solely on counsel-of-choice grounds; many had tried in vain. I consider in this article whether there is any satisfying, functional account that can explain the disjuncture between what the Court says about the right to counsel of choice and what it does when presented with an asserted violation of that right.The leading academic and judicial theories justify the right to counsel of choice either as securing the effective assistance of counsel, and thus a fair trial, or as a facet of the defendant’s prerogative to control his own defense. These theories, however—grounded in majestic-sounding notions of fairness and autonomy, respectively—struggle to explain counsel-of-choice doctrine. For one thing, indigent defendants—who number more than four out of every five—simply have no right to choose their counsel at all. And while criminal procedure rights are seldom absolute, balancing the defendant’s fairness and autonomy interests against the government’s countervailing needs cannot explain the pattern of Court decisions in anything but the most ad hoc manner. Seemingly unremarkable governmental interests prevail while a stronger one faltered this past Term.My claim is that something very different makes sense of the Supreme Court’s counsel-of-choice decisions. The failure of the leading theories, therefore, does not condemn the doctrine to incoherence. The right to counsel of choice, I argue, functions not as a powerful individual entitlement, as much of the judicial and scholarly writing suggests, but rather as a weak, system-level safeguard against socialization of the criminal defense bar. I use “socialization” here to refer to “the action or process of bringing” an institution “under state ownership or public control”—that is, not in the sense of social psychology but rather the political theory of socialism.4 Only when the government advances a theory for restraining defendant choice that, if accepted, would allow it to strangle the private defense bar and socialize criminal defense does this antisocialization principle require that the right to counsel of choice prevail. This means that even a weak governmental interest—like a judge’s desire to push a case to trial quickly—can overcome the right as long as that interest is meaningfully bounded in its reach across the criminal docket. But it also means that a law requiring all defendants to use court-appointed counsel—mandating a socialized defense bar—would violate the Sixth Amendment despite its equality-promoting effects.An antisocialization principle explains, in particular—far better than a theory grounded in individual fairness or autonomy—last Term’s counsel-of-choice decision, Luis v United States,5 in which the Court for the first time found a stand-alone counsel-of-choice violation. The defendant in Luis was charged with health care fraud of around $45 million, almost all of which she had already spent. Seeking to preserve the $2 million remaining in the defendant’s possession, which would be necessary to pay restitution and criminal penalties if the defendant were convicted, the government obtained a pretrial order prohibiting the defendant from dissipating her assets. This included the defendant’s “untainted” assets—assets not traceable to her alleged crimes—which the defendant wished to spend to mount her criminal defense.6Reversing the Eleventh Circuit Court of Appeals, a fractured Supreme Court held that the trial court’s order violated the defendant’s Sixth Amendment right to counsel of choice. Justice Breyer announced the Court’s judgment in a four-Justice plurality opinion, joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor. Justice Thomas concurred in the judgment, resting on a textual and historical analysis. Justice Kennedy, joined by Justice Alito, dissented, finding the case indistinguishable from precedent that had rebuffed similar counsel-of-choice claims. Justice Kagan also dissented, questioning whether that same precedent had been correctly decided.An antisocialization theory—but neither fairness nor autonomy—cogently distinguishes Luis from all of the cases in which the Court rejected counsel-of-choice claims. That includes the two famous and closely related precedents the Justices in the majority strained to differentiate in Luis,7 ultimately relying on unpersuasive statutory and historical formalisms that I will examine. Antisocialization can also begin to explain (though not necessarily justify) the complete denial of the counsel-of-choice right to indigent criminal defendants, a disquieting feature of the doctrine in light of equal-protection principles.I explore these issues below. Part I introduces the leading theories courts and commentators have developed to justify the right to counsel of choice. It then exposes the inability of these theories to explain the doctrine. Part II demonstrates how an antisocialization theory better describes the law. In the tradition of criminal procedure scholarship seeking theories that reconcile the Court’s decisions,8 I do not argue that antisocialization ought to drive the doctrine; my project is positive, not normative. I seek to explain the law, not to justify it. Nevertheless, I do develop in Part II a plausible normative defense for the antisocialization theory in order to bolster my descriptive claim. The defense is sufficient to persuade me that Luis was correctly decided. Were I to craft my own justification for the counsel-of-choice right, however, it might well be markedly more robust.My argument is not that antisocialization is the only fathomable theory that explains the doctrine. It is possible, for example, that counsel-of-choice doctrine tracks historical understandings of the right. Yet neither the Justices nor commentators have shown this to be generally true, leaving the burden of proof, for the time being, on the historical theory’s would-be proponents. I am skeptical, though, I will add, that a historical theory would be as useful as the functional theory I explicate here, confronting, as it must, the familiar problem of what to do when formal materials (i.e., historical understandings) run out.9In Part III, in lieu of a traditional conclusion, I step outside the Sixth Amendment to critique counsel-of-choice doctrine from an external perspective. The doctrine itself is young and undertheorized, and much remains to be worked out in due course. But regardless of how the Court resolves any outstanding Sixth Amendment questions, I argue in Part III that several of its counsel-of-choice precedents may run aground on other, settled constitutional protections. These are conflicts the Court should consider alongside Sixth Amendment principles as it continues to elaborate the right to counsel of choice.I. Difficulties with the Leading Descriptive TheoriesTwo principal theories—what I call fairness and autonomy—dominate judicial and scholarly thinking on the right to counsel of choice. Yet however well these theories might justify the right as a philosophical matter, they cannot explain counsel-of-choice doctrine. In this part, I describe the fairness and autonomy theories and illustrate the limits of their descriptive power. In particular, I show how these theories are unable cogently to distinguish Luis, in which the Court found a stand-alone violation of the defendant’s right to counsel of choice, from the many cases in which it did not.10A. FairnessProbably the most popular theory of counsel of choice describes the right as helping the defendant secure a fair trial. This fairness theory is outcome-oriented and instrumental—it regards the right as a means to the ultimate end of fair adjudication in an adversary system. Perhaps more precisely, the fairness theory views the right to counsel of choice as securing the right to effective assistance of counsel, which itself ensures a fair adjudicatory process.The plurality opinion in Luis (to the extent it is theorized at all) seems to rest upon this understanding. Although it acknowledges that the entitlement at stake is that to “counsel of choice,” the plurality elides that right with the more “fundamental” right to counsel itself, without which the defendant, “though he be not guilty, … faces the danger of conviction because he does not know how to establish his innocence.”11 Elsewhere the Court has “recognized that the purpose of providing assistance of counsel ‘is simply to ensure that criminal defendants receive a fair trial,’” and thus, “while the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant.”12There is a related position, which is sometimes portrayed as independent from the fairness theory, but which seems to me sufficiently related to warrant common treatment. That view regards the right to counsel of choice as facilitating a “meaningful relationship” between counsel and her client. The idea is that a criminal defendant will place greater trust in, and form a better relationship with, a lawyer he has selected rather than one the court has thrust upon him.13 Upon inspection, however, most formulations of the “meaningful relationship” position are grounded in the belief that a better attorney-client relationship will enable a stronger defense.14 The relationship is typically not thought to be valuable in its own right.Some argue that good attorney-client relationships help legitimize case outcomes—that defendants will accept their fate more readily if they believe they received zealous representation from counsel they selected.15 To the extent the outcomes being legitimized are substantively fair, this seems reasonable to me, though not meaningfully distinct from the fairness theory itself. To the extent that unfair outcomes will appear legitimate, it is far less clear that this plausibly justifies the right.B. AutonomyA second strand of legal thought—absent in Luis—maintains that the right to counsel of choice has intrinsic value as an aspect of the criminal defendant’s individual autonomy and control over his own defense. Unlike the fairness theory, this autonomy theory is not outcome-oriented; it does not depend on an assumption or prediction about how counsel will affect the fairness or result of the defendant’s proceedings. The right to counsel of choice, on this view, is valuable for its own sake, not because of the results it’s thought to produce.16The Supreme Court’s opinion in Gonzalez-Lopez v United States17 exemplifies the autonomy position. The Sixth Amendment “commands,” the Court admonished in Gonzalez-Lopez, “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.”18 This “right to select counsel of one’s choice,” the Court continued, “has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial” and should not be confused with the “right to effective counsel.”19 It “reflects constitutional protection of the defendant’s free choice independent of concern for the objective fairness of the proceeding.”20Much scholarly commentary on the right to counsel of choice accords with this view, agreeing that “the most important decision a defendant makes in shaping his defense is his selection of an attorney.”21 The attorney acts, among other things, as conduit for the defendant’s “communicative activity in the public forum of the courtroom”; respect for the defendant’s choice of counsel is thus “‘respect for the individual’” himself.22 One commentator, analogizing to the right to self-representation, aptly quoted the Court’s sharp language from that context: “An unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed by the Constitution, for, in a very real sense, it is not his defense.”23C. The Theories’ Descriptive ShortcomingsThe fairness and autonomy theories for the right to counsel of choice are perfectly lucid as a philosophical matter. What they lack, however, is any real explanatory power. If the theories did explain the doctrine, they would be able to distinguish Luis, in which the Court found a counsel-of-choice violation, from the many cases in which it did not. Yet as I show in this section, neither theory is up to this task. Specifically, neither theory is able persuasively to differentiate Luis from three sets of counsel-of-choice precedents that capture most, if not all, of the Supreme Court’s work in this domain: (1) cases involving the inherent powers of the trial court to control litigation; (2) fee-forfeiture cases involving “tainted” (rather than “untainted”) assets; and (3) cases involving indigent criminal defendants.1. Inherent powersMundane decisions courts make in the course of criminal litigation, or even antecedent choices regarding judicial administration, can have the effect of denying a criminal defendant his first-choice aide. Consider three examples. In one case, the court denies a midtrial continuance necessary to accommodate the desired attorney’s schedule. In another, it prohibits counsel from representing the defendant alongside two of his codefendants, notwithstanding conflict-of-interest waivers from all of the defendants concerned. And in the third, it simply enforces court rules barring practice by nonlawyers, disbarred lawyers, and lawyers from out of state.In none of these cases, the Court has said, does the trial court violate the defendant’s right to counsel of choice.24 But the trial court’s actions in each instance certainly implicate the defendant’s fairness and autonomy interests. The defendant who was denied a continuance, for example, argued that the lawyer assigned to him had not zealously represented his interests.25 Disagreeing, the Court denied his claim and expressly rejected the lower court’s position, rooted in the fairness theory, that the right to counsel of choice safeguards a “meaningful relationship” between the defendant and his attorney.26 Likewise, deciding to roll the dice with a lay representative27 or one subject to a potential conflict of interest28 would seem to fall squarely within the autonomy-premised right to control one’s defense. This is the same interest, notably, that supports the right to self-representation, which requires the trial court to let an uneducated defendant represent himself.29 At the very least, these outcomes are difficult to reconcile with the type of robust individual protection the Court’s “root meaning” language implies.Of course, observing that the right fails in some cases to protect the defendant’s interests—whether rooted in fairness or autonomy—may suggest nothing more than that those interests were outweighed by the government’s countervailing needs through a process of interest-balancing. Yet if counsel-of-choice doctrine reflects a weighing of fairness or autonomy interests, on the one hand, and government need, on the other, we would expect the government to prevail when it matters most and lose when it matters least—especially as the defendants’ interests seem roughly equivalent across the cases.30The doctrine does not line up this way, however. This is a point that was harder to see before Luis, because the government’s interests had prevailed in every case. That they fell short in Luis suggests—if the doctrine indeed reflects a balance of the defendant’s fairness or autonomy interests against state prerogatives—that the government interest in Luis was weaker than in all the prior cases. But that is a difficult position to maintain. In the earlier cases, the government won by asserting interests such as the “great deal of latitude” necessary “in scheduling trials,”31 the desire to ensure that “legal proceedings appear fair to all who observe them,”32 and “the legitimate wish of district courts that their judgments remain intact on appeal.”33 In Luis, it had what the Court has elsewhere characterized as a “strong governmental interest in obtaining full recovery of all forfeitable assets,”34 which aims to punish and deter serious crimes.35 If there is a theory as to why that “strong governmental interest” is actually weaker than the trial court’s interest in controlling litigation by, say, denying a continuance, the Court has never disclosed it.The point is not that balancing is irrelevant, or in no way enhances the explanatory power of the leading theories. Rather, the point is that, to transcend simplistic, ad hoc explanations, balancing—to borrow from Professor William Stuntz—“must reflect some underlying theoretical structure.”36 Where, as here, the interests on each side of the balance are neither trivial nor overwhelming, “balancing without structure explains all results equally well; it is not so much a positive theory as a confession that no positive theory exists.”37 “The real challenge,” I agree with Stuntz, “is to explain why the balances are struck as they are in particular cases, and to do so in a way that allows one to assess, at least in broad terms, whether the doctrine is internally coherent.”38 Proponents of the fairness and autonomy theories have produced no such explanation, and I am doubtful that they can.2. Fee forfeitureA pair of fee-forfeiture cases the Court decided in 1989 framed the issues it considered in Luis. In Caplin & Drysdale, Chartered v United States,39 the Court held that the Sixth Amendment permits Congress to authorize postconviction forfeiture of so-called “tainted” assets, traceable to criminal activity, even when the defendant seeks to spend the assets to pay the lawyers who defended him.40 The same thing goes, the Court said in United States v Monsanto,41 for a pretrial order freezing assets the government alleges are tainted and therefore forfeitable.42The Court’s reasoning went like this: (1) tainted assets, though in the defendant’s possession, are “not rightfully his,” and (2) the defendant has “no Sixth Amendment right to spend another person’s money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice.”43 Put another way, “impecunious defendants have [no] Sixth Amendment right to choose their counsel,” and a defendant whose assets are tainted properly counts as “impecunious.”44Any tainted assets, it bears noting, will not be proven forfeitable until conviction, by which time the defense attorneys, having rendered services, will have established an interest in them. Yet through a statutory relation-back provision, title in the tainted assets vests in the United States at the time of the criminal act triggering forfeiture, giving the government a claim to the assets superior to the lawyers’.45 And the pretrial order in Monsanto—entered, of course, long before conviction—is analogous to pretrial detention of the defendant himself. It is, in other words, a restraint on the defendant’s property “to protect its ‘appearance’ at trial and protect the community’s interest in full recovery of any ill-gotten gains.”46It seems uncontroversial to say that the restraint of assets with which a criminal defendant wishes to pay his attorney intrudes on the fairness and autonomy interests the right to counsel of choice is said to protect. Rendered indigent, or at least less wealthy, the defendant may be forced to proceed with less-qualified counsel and fewer total defense resources, weakening his ability to compete with the prosecution in an adversarial setting and depriving him of some control over his own defense. If the fairness and autonomy theories are to explain these cases, therefore, it must be because the “strong governmental interest in obtaining full recovery of all forfeitable assets” outweighs the defendants’ interests.47 And indeed, considered in isolation, this does not seem like a far-fetched proposition. The principal difficulty is how to reconcile these earlier cases with the defendant’s victory in Luis. Neither the fairness nor the autonomy theory explains why the Court reached the opposite result in that case.The key distinction between Monsanto and Luis—to focus on the closest cousins—is that Monsanto involved the restraint of allegedly tainted assets, but in Luis the money was concededly clean.48 How does that affect the Sixth Amendment analysis under the fairness and autonomy theories? As an initial matter, whether the assets are tainted does not affect the defendant’s fairness and autonomy interests. Her interests in controlling her defense and obtaining a fair adjudication are the same regardless of what kind of money she seeks to spend. The explanation, if there is one, must instead be that the government’s argument for recovering tainted assets is stronger than for untainted assets. The Luis plurality can be read to take this position. Its formalistic reasoning, however, is unpersuasive—at least to one in search of a functional theory.The plurality characterized the distinction between tainted and untainted assets as “the difference between what is yours and what is mine.”49 Under the statutory relation-back provision, the plurality reminded, title to tainted assets passes to the government at the time the crime is committed.50 The same is not true, it implied,51 of untainted assets: “regarding her untainted assets,” the defendant can, before trial, “reasonably claim that the property is still ‘mine,’ free and clear.”52 This move allowed the plurality to characterize the government’s interest in “obtaining payment of a criminal forfeiture or restitution order” using untainted assets as “contingent,” lacking in “constitutional protection,” and, compared to the right to counsel of choice, “further from the heart of a fair, effective criminal justice system.”53The distinction between tainted and untainted assets cannot bear the weight the plurality puts upon it.54 First, while it is true that the government does not own forfeitable untainted assets before conviction, the same is true of forfeitable tainted assets. What the Court consistently calls “tainted” assets are, after all, only allegedly tainted assets.55 Until conviction, “[t]he defendant maintains ownership of either type, with the Government holding only a contingent interest.”56 What made the pretrial order constitutionally permissible in Monsanto is that the defendant’s assets were (prima facie) forfeitable, not that they were tainted.57 The assets in that case happened to be forfeitable because they were tainted, but that does not mean that assets Congress deems forfeitable for some other reason—such as to substitute for tainted assets already dissipated—are of a different constitutional order.Put another way, to say the government can freeze tainted but not untainted assets is to beg the question. The purpose of the trial—in either case—is to determine whether the assets are the defendant’s or are instead forfeitable because the defendant committed a crime. Before trial, when the assets are restrained, the answer to this question is unknown. The reason the Monsanto Court thought tainted assets aren’t “the defendant’s” up until conviction was simply that Congress said so—Congress said they could be frozen upon a showing of probable cause.58 Congress said the exact same thing here, with respect to untainted, substitute assets.59Second, the relation-back doctrine—which the Luis plurality seemed to think applies to tainted but not untainted assets—is beside the point. “The doctrine’s purpose is to prevent defendants from avoiding forfeiture by transferring their property to third parties”; it does not, however, “alter the time at which title to forfeitable property passes to the Government.”60 Nor is it clear why Congress’s statutory treatment of property is relevant to a Sixth Amendment analysis. If relation-back applies only to tainted assets, that fact is simply a matter of “congressional whim[ ].”61 It is hard to imagine that, if Congress extended relation-back to untainted, substitute assets, the plurality would change its tune. But that is what the logic of its analysis implies.Finally, because money is fungible, “the plurality’s approach leads to utterly arbitrary distinctions as among criminal defendants who are in fact guilty.”62 To borrow an example from Justice Kennedy’s dissent, imagine a thief who steals $1 million and wins another $1 million in a lottery. If he spends his lottery winnings on fancy cars and meals, and then needs money for defense counsel, he’s out of luck; the government can restrain the stolen funds. But if he spends the stolen money first, he can use the lottery winnings to pay an attorney.63 This is senseless: “the Government’s and the defendant’s respective legal interests” in the two pots of money—tainted and untainted—“are exactly the same.”64Justice Thomas’s concurring opinion, I should add, fares no better. Thomas argued, essentially, that the original understanding of the Counsel Clause protects the defendant’s right to spend his money to employ a defense attorney; that that right necessarily implies some limit on the government’s ability to restrain the defendant’s assets before trial; and that the common-law practice permitting pretrial restraint of tainted but not untainted assets supplies that necessary limit.65There are several problems with Justice Thomas’s position for my purposes. First, Thomas expressly eschews any interest in an analysis that demands functional reasons for the distinctions it draws.66 Historical practice is Thomas’s lodestone, however much (or little) sense it makes. Second, it is far from clear that Justice Thomas advances a theory of the Sixth Amendment at all, as opposed to a theory about the due process prerequisites to the restraint of any individual’s untainted assets. Thomas argues that a defendant’s untainted assets may not be restrained before trial whether he wishes to spend them on a defense attorney or something else entirely.67 This suggests that the Sixth Amendment itself is actually doing precious little work. Finally, even if historical practice does adequately reconcile Luis with the prior forfeiture cases, Justice Thomas makes no attempt to show that it also explains the Court’s other counsel-of-choice precedents, declining to engage that body of law at all. As I acknowledged at the outset, it remains theoretically possible that all of the Court’s decisions happen to align with historical understandings, but I am doubtful, and neither the Court nor commentators have done the work to prove it. * * *In sum, because the defendant’s interest in counsel of choice is the same regardless whether he wishes to pay his attorney with tainted or untainted assets, the fairness and autonomy theories can explain the forfeiture cases only if the government’s side of the balance is weightier in the former case than in the latter. There is, however, no good functional account of why that would be so. The forfeiture cases thus detract significantly from the explanatory power of these leading theories of the right.3. IndigenceThe notion that indigent criminal defendants might retain a Sixth Amendment right to counsel of choice has been, to the Court, a nonstarter.68 “It is hornbook law,” one commentator wrote, “that indigent defendants have no right to counsel of choice.”69 If the dominant theories are correct, this must be because (for reasons absent in Luis) assigning counsel to these defendants is not unfair, does not intrude on autonomy interests, or is justified by overriding governmental interests—or some combination of the three. All of these arguments, however, are weaker than they may at first seem. I address each one in turn.a) Fairness.—Consider what would have happened to the defendant in Luis had the Court ruled against her and deemed her untainted assets unavailable to pay counsel. There is no suggestion that she would have been forced through trial unaided by “the guiding hand of counsel.”70 Of course not. Instead, the court would have appointed an attorney to represent her—either a public defender or a private attorney funded under the Criminal Justice Act.71 Such an appointment could have threatened to injure the defendant (under a fairness theory) only if there were an unacceptable risk that appointed counsel would fail to provide the effective assistance of counsel necessary to make the trial fair.One of two conclusions follows. First, it may be that forcing the defendant to proceed with appointed counsel would not have jeopardized her right to a fair trial, and thus should not have been deemed to violate her right to counsel of choice. Indeed, the Court has repeatedly rejected any presumption that appointed counsel are categorically ineffective or less effective than retained counsel.72 Effectiveness must be judged, the Court has instructed, after the fact, on a case-by-case basis.73As an empirical matter, this is not an