YOU HAVE THE RIGHT TO AN ATTORNEY

If you are accused of a crime, you have the right to an attorney.  The U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense.” United States Constitution, Amendment VI.  My state confirms and strengthens this by providing: “The legislature finds that effective legal representation must be provided for indigent persons … consistent with the constitutional requirements of fairness, equal protection, and due process in all cases where the right to counsel attaches.”

But what does that mean?  Can you pick anyone you want?  If you don’t like the one you are assigned, can you protest and demand someone better or different?  What is the basis for asking for a different attorney, if you are using a public defender?  How does the right to “hire and fire” apply, when you are not hiring at all, but rather counsel is being appointed to you?  Let’s explore this a bit.

I overheard a case where an Eastern European man accused of a hate crime was being arraigned.  All I could gather is that he yelled at a man who was not white – based on his race – and although there was no physical contact, it was charged as some kind of harassment because of the nature of whatever threats he made.  At his arraignment, he requested that the judge assign him a different lawyer.  It was a disturbing argument sociologically, but at the same time an interesting one legally.

He told the judge that his lawyer does not understand how a man from his country feels about people of another race, especially immigrants, and he wants to be assigned a lawyer who can understand his point of view.  He suggested that a lawyer who can understand nationalism, perhaps one who has represented the KKK, the Italian Fascist Party, or the NSDAP, would be a better match.  NSDAP, by the way, is the National Socialist Germans Worker’s Party, in German Nationalsozialistische Deutsche Arbeiterpartei .  If you can make it through the first very long word, you will find all four of the letters that make up the acronym Nazi – which is a lot easier to pronounce, if not easier to stomach.

In denying his motion for the court to assign a different public defender, the judge  explained that while the accused party has the right to have assigned counsel, he does not in fact have the right to any counsel of his choice at public expense.  He does retain the right to hire, and fire, his own private counsel.  But he cannot simply request another public defender based on his personal likes and dislikes.  There would have to be something ethically wrong with the attorney’s representation.  The judge told the accused that his public defender is well-respected and competent, and well-known to the court as a good lawyer, and without any evidence of ineffective counsel, the motion must be denied.

There is a US Supreme Court case in which they ruled on the accused person’s right to counsel of choice, US v. Gonzalez-Lopez, although that case is not directly on point, as it referred to privately retained counsel, and not appointed counsel.   But the Supreme Court pointed out in its ruling there that “the right to counsel of choice is circumscribed in several important respects”.   The first is that the counsel representing the accused must be ineffective.

To show ineffective counsel, under case law, one must show that counsel’s performance was deficient – but also that the defendant was prejudiced by it.  The US Supreme Court has made clear that it is not just any deficiency that gives rise to the right to new counsel or a new trial, because defendants are not guaranteed error-free representation.  “Counsel cannot be ‘ineffective’ unless his mistakes have harmed the defense …. Thus, a violation of the Sixth Amendment right to effective representation is not ‘complete’ until the defendant is prejudiced.”  US v. Gonzalez-Lopez.

The US Supreme Court mentions in their closing paragraph  of that same case that “the right to counsel of choice does not extend to defendants who require counsel to be appointed for them”.

So sure, you can handpick your own attorney to defend you in a criminal case.  Go right ahead.  It’s called “hiring a private lawyer at your own expense.”  If you are assigned a public defender you simply don’t like, because he isn’t racist enough for you, as in the above example, or for any other reason that doesn’t amount to ineffective counsel causing you harm, you can protest all you want.  But the judge has no legal basis to give you a different public defender.  So you will have to try to work with the lawyer assigned to you.  Or find some money to earn the right to “hire and fire” the lawyer of your choosing.  Because it is not a given.