Academic journal article Washington and Lee Law Review

In Their Defense: Conflict between the Criminal Defendant's Right to Counsel of Choice and the Right to Appointed Counsel

Academic journal article Washington and Lee Law Review

In Their Defense: Conflict between the Criminal Defendant's Right to Counsel of Choice and the Right to Appointed Counsel

Article excerpt

Table of Contents

I. Introduction....................1744

II. The Historical Sixth Amendment Right to Counsel....................1747

A. English Common Law....................1749

B. The Beginnings of the American Tradition....................1753

C. The Right to Court-Appointed Counsel....................1755

1. Powell v. Alabama....................1756

2. Johnson v. Zerbst....................1758

3. Betts v. Brady....................1759

4. Gideon and Its Progeny....................1760

D. The Right to Counsel of Choice....................1764

III. The Conflict of Multiple Rights' Assertion....................1767

A. United States v. Mota-Santana....................1769

B. United States v. Brown....................1774

C. United States v. Jimenez-Antunez....................1780

IV. Argument for Adopting a Two-Part Motions Analysis: Highlighting the Importance of the Sixth Amendment Guarantees....................1784

V.Conclusion....................1794

I. Introduction

Consider the following hypothetical: William Defendant is charged with first degree murder. William and his mother scrape together $15,000, deplete their life savings, and hire an attorney to represent William in the early stages of his criminal trial before his bail hearing.1 Prior to the beginning of jury selection, however, William becomes dissatisfied with his attorney?s minimal communication and trial strategy and wishes to fire him. William?s hired attorney files a motion to withdraw from the case. The court is aware that if it permits William?s attorney to withdraw from the case it will be required to either appoint William a new lawyer or find that he is able to proceed pro se before proceeding with jury selection due to William?s inability to pay for future representation. The court is presented with a dilemma: does William have to satisfy a good cause showing to dismiss his retained counsel and have the court appoint counsel? If the answer to the first question is yes, what does that good cause showing require William to prove?

As American jurisprudence currently stands, this question is in a state of flux. The Ninth2 and Eleventh Circuits3 do not require any showing for a criminal defendant to dismiss retained counsel and seek court-appointed counsel, while the First Circuit4 requires a showing of good cause for a criminal defendant to dismiss retained counsel and seek court-appointed counsel.5 The question presented by these conflicting requirements-one that this Note seeks to resolve-is whether a criminal defendant who qualifies for appointed counsel under 18 U.S.C. 3006A and wishes to dismiss currently retained counsel and seek appointed counsel must show "good cause" to dismiss their retained counsel. Good cause in this context refers to "a fundamental problem, 'such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict.'"6

Suppose William is required to make a good cause showing to dismiss his currently retained counsel-why should this matter? Legally, such a showing prohibits William from asserting two of the rights protected under the Sixth Amendment-the right to counsel of choice and the right to court-appointed counsel-unless he can satisfy the required showing.7 Practically, unless William can make this good cause showing, he will be forced to proceed with the counsel who he wishes to fire or to represent himself in his criminal trial. An appellate court should treat this denial as a structural error warranting reversal of the criminal proceeding. 8 This denial of William's fundamental right to the assistance of counsel will now require a new criminal trial in which William will be granted his right to counsel of choice. The prospect of a new trial may raise concerns of economic cost and general efficiency, the likely motivators for requiring a showing of good cause in the first instance. …

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