A Criminal Enterprise

Does A Citizen Who Accepts State-Funded Assistance under Gideon Forfeit His Sixth Amendment Right to Counsel of Choice?

Posted in Uncategorized by Robert Smith on September 3, 2009

In a forthcoming cert petition – to be filed September 16, 2009 – the Justice Center’s Capital Appeals Projects looks to whether an indigent defendant has a diminished right to counsel of choice. In Reeves v. Louisiana, at both the district court and Louisiana Supreme Court level, the Louisiana courts held that an indigent defendant had no right to counsel of choice. This is at least the second time the Louisiana Supreme Court has held that an indigent defendant has no right to counsel of choice.

The U.S. Supreme Court decisions that have looked at issue have side-stepped the question – in one instance finding the question was not raised in the court below (Morris v. Slappy), and in another instance stating the more obvious point that an indigent defendant’s choice of counsel is often nugatory (Gonzalez-Lopez).

Poverty constrains the rights of many persons. Poor people don’t have a lesser right to retain property than wealthy people – the quality and strength of the right is the same – it’s just that our ability to own property is cabined by the market-place. It’s not that I don’t have the right to own that nice house in the Garden District – it’s just that our purchasing power doesn’t allow for it

The cert petition suggests that the same reasoning should basically apply to our other constitutional rights. In Jason Reeves’ case, a noted expert capital defense lawyer was willing to represent the defendant at no cost for attorney fees. Indeed, the defense counsel had represented Jason at an initial trial procuring a hung jury on the issue of moral culpability – in a case in which the La. Supreme Court observes a harrowing set of factual circumstances.

But the trial court – and the Louisiana Supreme Court above it – held that because Reeves was indigent, he could not assert a right to counsel of choice. The trial court removed the lawyer and appointed the local public defender. The state Supreme Court skated past the issue by suggesting that the initial representation by the noted capital defense lawyer was “akin to appointed counsel” – and that having accepted the appointment of counsel the defendant had given up his own right to counsel of choice.

This is akin to me accepting a Section 8 voucher for housing, living in a rental property for 18 months; when the private owner and I work out an agreement where he agrees to give me his house, the government steps in and says: “because you are indigent, and have accepted state funded assistance, you don’t have the right to purchase property.”

The issue – which is as old as the trial of John Peter Zenger — has been re-emerging in a number of states as trial judges attempt to control the exigencies of capital representation in their courtrooms, by removing zealous advocates and replacing them with lawyers who are unlikely (either for political or other reasons) to procure a sentence less than death.

We’ll post a copy of the petition when filed. If you are aware of other instances where an indigent defendant’s counsel of choice has been removed and replaced with appointed counsel, please let us know.

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