"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, June 28, 2006

Nino: "I've Got Your Original Intent Right Here"

OK, so the SCOTUS was doing all right there for a while, with an emerging common sense majority on crimlaw cases, with our newest guys Alito and Roberts on board the plain meaning, originalist bandwagon... but then ol' Nino of all people has to go and screw things up. To his reasoning in U.S. v. Gonzalez-Lopez I give him this salute:

The case in a nutshell holds that even though all the Sixth Amendment actually says about having a lawyer in a crim case is:
"[i]n all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defence,"
what that really means as interpreted and twisted by Scalia and the usual "Living Constitution" crowd, is:
"in all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel of his choosing for his defence."

It's as simple as that. Scalia simply makes up a provision that was not in the text of the Amendment and reasons that since he and the other lawyers on the Court think it would be good if the founders had added the language they like, then surely that is what the Amendment actually means.

Scalia disingenously says as much when he writes that the Sixth Amendment requires "not that a trial be fair, but that a particualr guarantee of fairness be provided--to wit, that the accused be defended by the counsel he believes to be best." This last, italicized part is what Scalia wishes the Amendment says but which it does not, by its terms, say. So, like a good Living Constitutionalist, he simply asserts it and viola! Ipse dixit, the Sixth Amendment means not that you have a right to have assistance of counsel, but that you have a right to pick your lawyer! And if the trial judge mistakenly refuses to let you have the one you want but the one you actually get does a competent job in a fair trial, that's unconstitutional and you get a new trial.

Scalia can not, and does not, point to any fair, plain reading of the text itself to justify this addition; and although he cites precedent, he does not explain (nor could he, I would suggest) how his novel holding comports with any original understanding of the Sixth Amendment, which, if you check out my links below, was far different than what many people assume. Alito, teaching Scalia a thing or two about originalism, points out that Scalia's holding has no support historically.

Moreover, if this new found right is really part and parcel of your Sixth Amendment right, then how can we prevent the indigent from having counsel of their choosing? Many times I have seen an indigent defendant tell the court, "I want so-and-so as my lawyer" and the court replies, "Sorry, you don't have the right to choose your court-appointed lawyer." Scalia merely string-cites two cases to dismiss this problem with his holding.

I blogged about this case when the Eighth Circuit reversed the conviction and have before commented that, when it comes to the Sixth Amendment, to paraphrase Inigo Montoya, "I do not think that Amendment means what you think it means."


Ken Lammers said...

Check out Norm Pattis' discussion on this.

My question is: what does this do to the policing power of the State bars. As I read this result, as long as you are admitted somewhere (and thus a "lawyer") the defendant has a right to hire you to represent him.

Anonymous said...

Scalia in a nutshell: "The Constitution means what is says unless I don't like what it says, in which case it means what I say it means, but if you say it means what you want it to mean, you are an idiot because you want it to mean something that it doesn't say and you aren't me."

Anonymous said...

Anon, I think that EVERYONE says something like that.