Right to Choose Counsel

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Under the Sixth Amendment, there is a presumption that a defendant may retain counsel of choice, but the right to choose a particular attorney is not absolute.1 For instance, in Wheat v. United States, a district court had denied a defendant’s proffered waiver of conflict of interest and refused to allow representation by an attorney who represented the defendant’s co-conspirators in an illegal drug enterprise.2 Upholding the district court’s discretion to disallow representation in instances of actual conflict of interests or serious potential for conflict, the Court mentioned other situations in which a defendant’s choice may not be honored.3 A defendant, for example, is not entitled to an advocate who is not a member of the bar, nor may a defendant insist on representation by an attorney who denies counsel for financial reasons or otherwise, nor may a defendant demand the services of a lawyer who may be compromised by past or ongoing relationships with the Government.4

The right to retain counsel of choice generally does not bar operation of asset forfeiture provisions, even if the forfeiture serves to deny to a defendant the wherewithal to employ counsel. In Caplin & Drysdale v. United States,5 the Court upheld a federal statute requiring forfeiture to the government of property and proceeds derived from drug-related crimes constituting a “continuing criminal enterprise,” 6 even though a portion of the forfeited assets had been used to retain defense counsel. Although a defendant may spend his own money to employ counsel, the Court declared, “[a] 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 [the] defendant will be able to retain the attorney of his choice.” 7 Because the statute vests title to the forfeitable assets in the United States at the time of the criminal act,8 the defendant has no right to give them to a “third party” even if the purpose is to exercise a constitutionally protected right.9 Moreover, on the same day Caplin & Drysdale was decided, the Court, in United States v. Monsanto, held that the government may, prior to trial, freeze assets that a defendant needs to hire an attorney if probable cause exists to “believe that the property will ultimately be proved forfeitable.” 10 Nonetheless, in Luis v. United States the Court limited the holdings from Caplin & Drysdale and Monsanto, deciding that the Sixth Amendment provides criminal defendants the right to preserve legitimate, untainted assets unrelated to the underlying crime in order to retain counsel of their choice.11

Where the right to be assisted by counsel of one’s choice is wrongly denied, a Sixth Amendment violation occurs regardless of whether the alternate counsel retained was effective, or whether the denial caused prejudice to the defendant.12 Further, because such a denial is not a “trial error” (a constitutional error that occurs during presentation of a case to the jury) but a “structural defect” (a constitutional error that affects the framework of the trial), the Court held that the decision is not subject to a “harmless error” analysis.13

In Faretta v. California, the Court held that the Sixth Amendment, in addition to guaranteeing the right to retained or appointed counsel, also guarantees a defendant the right to represent himself.14 It is a right the defendant must adopt knowingly and intelligently;15 under some circumstances the trial judge may deny the authority to exercise it, as when the defendant simply lacks the competence to make a knowing or intelligent waiver of counsel16 or when his self-representation is so disruptive of orderly procedures that the judge may curtail it.17 The right applies only at trial; there is no constitutional right to self-representation on direct appeal from a criminal conviction.18 The Court spelled out the essential elements of self-representation in McKaskle v. Wiggins,19 a case involving the self-represented defendant’s rights vis-a-vis “standby counsel” appointed by the trial court. The “core of the Faretta right” is that the defendant “is entitled to preserve actual control over the case he chooses to present to the jury,” and consequently, standby counsel’s participation “should not be allowed to destroy the jury’s perception that the defendant is representing himself.” 20 But participation of standby counsel even in the jury’s presence and over the defendant’s objection does not violate the defendant’s Sixth Amendment rights when serving the basic purpose of aiding the defendant in complying with routine courtroom procedures and protocols and thereby relieving the trial judge of these tasks.21

1: See Wheat v. United States, 486 U.S. 153, 159 (1988) (explaining that “while the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment,” the “ Sixth Amendment right to choose one’s own counsel is circumscribed in several important respects” ).
2: 486 U.S. 153 (1988).
3: Id. at 159.
4: Id.
5: 491 U.S. 617, 619, 626 (1989).
6: 21 U.S.C. §§ 848, 853.
7: Caplin & Drysdale, 491 U.S. at 626.
8: The statute was interpreted in United States v. Monsanto, 491 U.S. 600, 602, 607 (1989), as requiring forfeiture of all assets derived from the covered offenses, and as making no exception for assets the defendant intends to use for his defense.
9: See Caplin & Drysdale, 491 U.S. at 628 ( “There is no constitutional principle that gives one person the right to give another’s property to a third party, even where the person seeking to complete the exchange wishes to do so in order to exercise a constitutionally protected right.” ).
10: Monsanto, 491 U.S. at 615 ( “Indeed, it would be odd to conclude that the Government may not restrain property, such as the home and apartment in respondent’s possession, based on a finding of probable cause, when we have held that . . . the Government may restrain persons where there is a finding of probable cause to believe that the accused has committed a serious offense.” ). A subsequent case held that where a grand jury had returned an indictment based on probable cause, that conclusion was binding on a court during forfeiture proceedings and the defendants do not have a right to have such a conclusion re-examined in a separate judicial hearing in order to unfreeze the assets to pay for their counsel.
11: 578 U.S. 5, 8–9, 12–13 (2016) (plurality opinion). The Court in Luis split as to the reasoning for holding that a pretrial freeze of untainted assets violates a criminal defendant’s Sixth Amendment right to counsel of choice. Four Justices employed a balancing test, weighing the government’s contingent future interest in the untainted assets against the interests in preserving the right to counsel—a right at the “heart of a fair, effective criminal justice system” —in concluding that the defendant had the right to use innocent property to pay a reasonable fee for assistance of counsel. See id. at 16–23 (Justice Stephen Breyer, joined by Chief Justice John Roberts, Justices Ruth Bader Ginsburg & Sonia Sotomayor). Justice Clarence Thomas, in providing the fifth and deciding vote, concurred in judgment only, contending that “textual understanding and history” alone suffice to “establish that the Sixth Amendment prevents the Government from freezing untainted assets in order to secure a potential forfeiture.” See id. at 25 (Thomas, J., concurring); see also id. at 33 ( “I cannot go further and endorse the plurality’s atextual balancing analysis.” ).
12: United States v. Gonzalez-Lopez, 548 U.S. 140, 144–45 (2006).
13: Gonzalez-Lopez, 548 U.S. at 148–50 (citing Arizona v. Fulminante, 499 U.S. 279, 282 (1991)).
14: 422 U.S. 806, 807, 817 (1975). Although the Court acknowledged some concern by judges that Faretta leads to unfair trials for defendants, in Indiana v. Edwards the Court declined to overrule Faretta. 554 U.S. 164, 178 (2008). Even if the defendant exercises his right to his detriment, the Constitution ordinarily guarantees him the opportunity to do so. See Faretta, 422 U.S. at 834 (explaining that “[i]t is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage,” and that “although he may conduct his own defense ultimately to his own detriment, his choice must be honored” ). A defendant who represents himself cannot thereafter complain that the quality of his defense denied him effective assistance of counsel. Id. at 834–35 n.46. The Court, however, has not addressed what state aid, such as access to a law library, might need to be made available to a defendant representing himself. Kane v. Garcia Espitia, 546 U.S. 9, 10 (2005) (per curiam). Related to the right of self-representation is the right to testify in one’s own defense. See Rock v. Arkansas, 483 U.S. 44, 52, 62 (1987) (holding that per se rule excluding all hypnotically refreshed testimony violates right).
15: See, e.g., Godinez v. Moran, 509 U.S. 389, 396 (1993) (explaining that a criminal defendant “may not waive his right to counsel or plead guilty unless he does so ‘competently and intelligently’” (quoting Johnson v. Zerbst, 304 U.S. 458, 468 (1938)).
16: The fact that a defendant is mentally competent to stand trial does not preclude a court from finding him not mentally competent to represent himself at trial. Edwards, 554 U.S. at 177–78. Mental competence to stand trial, however, is sufficient to ensure the right to waive the right to counsel in order to plead guilty. Godinez v. Moran, 509 U.S. 389, 398–99 (1993).
17: Faretta, 422 U.S. at 834 n.46.
18: Martinez v. Court of App. of Cal., Fourth App. Dist., 528 U.S. 152, 154 (2000). The Sixth Amendment itself “does not include any right to appeal.” Id. at 160.
19: 465 U.S. 168, 170 (1984).
20: Id. at 178.
21: Id. at 184.