Tuesday, April 25, 2006

The Constitutional Criminal Procedure Champion is...

... Justice Scalia.

I'm not kidding. He's penned Blakely (rendering unconstitutional the Federal Sentencing Guidelines) and Crawford (breathing life back into the Confrontation Clause). And after the oral argument in United States v. Gonzalez-Lopez, I'd bet Scalia is going to write another important criminal procedure decision, again supporting the criminal defendant -- this time defending one's Sixth Amendment right to have the lawyer of his choice.

The oral argument looked like a lot of fun, going so far as to invoke every criminal lawyer's favorite film, My Cousin Vinny.

Scalia had this to say at oral argument: "I don't want a 'competent' lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win."

Alito countered: "Let's say the defendant wanted to be represented by a relative who specialized in real estate law. If that lawyer was disqualified and the defendant was eventually represented by an experienced criminal defense lawyer with a national reputation, "why wouldn't that be harmless error?"

That would still be "unquestionably a Sixth Amendment violation," Jeff Fisher (yes, that Jeff Fisher of Blakely and Crawford fame), the defendant's lawyer, replied.

Here's an article about the case.

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