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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, June 27, 2006 ::
    Two criminal procedure cases yesterday:

    Kansas v. Marsh, in which the Court, 5-4, upheld Kansas's death penalty. Justice Thomas wrote the opinion of the Court. Justice Scalia's concurrence is something in the nature of a Brandeis brief, because it responds to an anti-death-penalty Brandeis brief in the form of Justice Souter's dissent. (A Catholic blogger comments here.)

    Scalia's justification for Brandeising here is that when dodgy research (as he believes the research cited by the Souter dissent to be) is cited in a Supreme Court opinion, even a dissent, it's there in the U.S. Reports to be cited by others with the mantle of at least some degree of Supreme Court authority. ("Look! Not only does this research say thus-and-such, but four Supreme Court Justices and their super-smart clerks thought it was solid enough to cite!") So it's not a matter of "He started it," it's a matter of evening out the playing field.

    U.S. v. Gonzalez-Lopez: Opinion for the Court by Justice Scalia. Held: it is reversible error to deny a criminal defendant the retained counsel of his choice, and such error cannot be harmless.

    This opinion continues Justice Scalia's crusade for a literal reading of the Sixth Amendment, that is, his crusade against the tendency to throw all he specific Sixth Am. rights into a general pot marked "fair trial" and then uphold brazen denials of those rights as long as the trial was "fair."

    Past landmarks of this crusade have been his opinion for the Court in Coy v. Iowa, and his dissent (one of his angriest) in Maryland v. Craig.* In those cases, as in this, he was joined by the Court's "liberals," and the "conservatives" were against him. The "conservatives" are wrong.

    Justice Alito, in dissent, matched literalism with literalism and read the Sixth Am. right to "assistance of counsel" as focusing above all on "assistance," with choice of counsel being, if not minor, then at least sufficiently secondary to be subject to harmless-error analysis. This is consistent with the Strickland line of cases on "effective assistance of counsel," which assume that ineffective assistance is no assistance at all. But the words "of counsel" are also in the text, and while we'd have to look at Founding-era usages of this expression to be sure, they seem to imply respect for defendant's choice. "Assistance of an attorney" would mean any competent attorney would do. "Assistance of counsel" implies that it's someone from the defendant's existing "stable" or "team," if such a person can be found.

    (Book we need to finish/re-read: John Langbein, The Origins of the Adversary Criminal Trial.)

    * "In the last analysis, however, this debate is not an appropriate one. I have no need to defend the value of confrontation, because the Court has no authority to question it."

    :: David M. Wagner 1:56 PM [+] ::

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