Gonzalez v. United States (Decision). Issue has to do with Attorney Consent

To no one's suprise, the US Supreme Court by an 8-1 margin (opinion by Kennedy) affirmed the Fifth Circuit and held that a criminal defendant need not personally waive his right to having a Federal Magistrate conduct jury selection as long as his attorney given consent for him. In this case the attorney gave consent to the Magistrate Judge to conduct voir dire without notifying his client that this was going to happen. Thus, the case hinged on the question of whether the right to jury selection was such a fundamental right that a defendant had personally to waive it in order for the waiver to be effective. Such a right, such as the right to counsel, is a personal right. Only the defendant can assert his/her desire for counsel or his/her desire to represent self. The Court decided that such a right was not fundamental. The only surprising thing about this case, in my judgment, is that the lone dissenter, Justice Thomas, would normally be expected to affirm a case like this. But he had a problem with the underlying statute granting broad and unspecified powers to the Federal Magistrates. I won't go into his objections in this brief essay. I simply will summarize, from the Syllabus of the decision, some major facts and the nature of Justice Kennedy's reasoning.

Important Relevant Facts

From the Syllabus we have the following:

"If the parties consent, a federal magistrate judge may preside over the voir dire and jury selection in a felony criminal trial. Peretz v. United States, 501 U.S. 923, 933, 111 S.Ct. 2661, 115 L.Ed.2d 808. 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, inter alia, that the right to have a district judge preside over voir dire could be waived by counsel."

The Argument/Holding of the Court

Here is the holding and the "flow" of the argument:

"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, 28 U.S.C. § 636(b)(3), which states: “A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” Under Gomez v. United States, 490 U.S. 858, 870, 875-876, 109 S.Ct. 2237, 104 L.Ed.2d 923, and Peretz, supra, at 933, 935-936, 111 S.Ct. 2661, 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 indicated that some of these rights require the defendant's own consent to waive. See, e.g., New York v. Hill, 528 U.S. 110, 114-115, 120 S.Ct. 659, 145 L.Ed.2d 560. The Court held in Hill, however, 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.” Ibid. Similar to the scheduling matter in Hill, 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. Petitioner argues unconvincingly that the decision to have a magistrate judge for voir dire is a fundamental choice, cf. Hill, supra, at 114, 120 S.Ct. 659, or, at least, raises a question of constitutional significance so that the Act should be interpreted to require explicit consent. Serious concerns about the Act's constitutionality are not present here, and petitioner concedes that magistrate judges are capable of competent and impartial performance when presiding over jury selection. Gomez, supra, at 876, 109 S.Ct. 2237, distinguished."

Conclusion

The heart of the Court's reasoning was that counsel's delegation of voir dire to the Federal Magistrate (or US District Judge, for that matter) on behalf of his/her client was more of a "tactical" consideration than a "right" of constitutional proportions in the case. The reasoning was that since the defendant had so many other things to think about, the delegation of this aspect of the trial to the Magistrate without express consent by the defendant made sense. I could see a contrary argument--that voir dire, in fact, is the most important thing about a trial--allowing the attorney and defendant to do everything in their power to get a sympathetic venire (jury). Justice Scalia, while concurring in the judgment, was also uneasy about the "tactical vs. fundamental" framing of the question. I suppose, in the final analysis, that the Court was willing to grant this power to the attorney because s/he ought to know what is going on and what best serves the interest of the client. All of this, however, may be a bit of a pipe dream, when one considers how little actually is said on occasions between criminal defense lawyers and their clients.

Thus, we have one more question answered, a very small piece of an immense jigsaw puzzle on representation of criminal defendants...

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