The Structural Function of the Sixth Amendment Right to Counsel of Choice
40 Pages Posted: 2 Feb 2017 Last revised: 30 Jun 2018
Date Written: January 31, 2017
The “root meaning” of the Sixth Amendment’s Counsel Clause is the right to retain counsel of one’s choice. Yet until just last Term, no criminal defendant had ever persuaded the U.S. Supreme Court to reverse a conviction on counsel-of-choice grounds; many had tried in vain. I consider in this paper whether there is any satisfying, functional account that can explain the disjuncture between what the Court says about the right and what it does when presented with an asserted violation of that right. The leading 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 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.
My claim is that something very different explains the Court’s counsel-of-choice decisions. The right to counsel of choice functions not as a powerful individual entitlement, but rather as a weak, system-level safeguard against socialization of the criminal defense bar. I use “socialization” here in the political and not the social psychological sense, to refer to “the action or process of bringing” an institution “under state ownership or public control.” 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 anti-socialization principle require that the right to counsel of choice prevail. This means that even a weak government 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.
Keywords: Sixth Amendment, counsel, counsel of choice, Luis, defense, forfeiture
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