Counsel or Client: Who makes the call?

On May 12, 2007, the Supreme Court decided Gonzalez v. United States (06-11612). The issue in Gonzalez was whether counsel alone could consent to the magistrate judge’s role in presiding over voir dire and jury selection or whether the defendant must give his or her own consent.

While this case isn’t one of the big ones many are waiting for the Court to decide this term, I think it may be of interest to criminal defense attorneys, especially those that do assigned counsel work. When I’m first assigned a case, I write a letter to my client asking what exactly he or she is appealing. More often than not, I receive a laundry list of issues I cannot argue on appeal. Either the issues were not preserved at the trial level, or they’re not legal arguments. Explaining to my client what issues should be argued on appeal—based on what can actually be argued on appeal—is often quite the task.

Some clients want to see a copy of their brief before it’s submitted. After sending the brief, I usually receive a letter asking why the brief doesn’t include all the issues the defendant wants to argue on appeal. I try to explain I cannot argue frivolous issues and, in cases where the defendant is particularly adamant, I have him or her file a pro se brief. All of this goes to the basic issue involved in Gonzalez. At the end of the day, there are some decisions that we, as attorneys, must make whether our client agrees with us or not.

Highlights from Gonzalez:

Before petitioner’s federal trial on felony drug charges, his counsel consented to the Magistrate Judge’s presiding over jury selection. Petitioner was not asked for his own consent. After the Magistrate Judge supervised voir dire without objection, a District Judge presided at trial, and the jury returned a guilty verdict on all counts. Petitioner contended for the first time on appeal that it was error not to obtain his own consent to the Magistrate Judge’s voir dire role. The Fifth Circuit affirmed the convictions, concluding that the right to have a district judge preside over voir dire could be waived by counsel.

Express consent by counsel suffices to permit a magistrate judge to preside over jury selection in a felony trial, pursuant to the Federal Magistrates Act, which states: “A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” Such “additional duties” include presiding at voir dire if the parties consent, but not if there is an objection. Generally, where there is a full trial, there are various points at which rights either can be asserted or waived. This Court has held that an attorney, acting without indication of particular consent from his client, could waive his client’s statutory right to a speedy trial because “[s]cheduling matters are plainly among those for which agreement by counsel generally controls.” Acceptance of a magistrate judge at the jury selection phase is a tactical decision well suited for the attorney’s own decision. The presiding judge has significant discretion over jury selection both as to substance-the questions asked-and tone-formal or informal-and the judge’s approach may be relevant in light of the approach of the attorney, who may decide whether to accept a magistrate judge based in part on these factors. As with other tactical decisions, requiring personal, on-the-record approval from the client could necessitate a lengthy explanation that the client might not understand and that might distract from more pressing matters as the attorney seeks to prepare the best defense.