Is That Legal?

Appellate reversal of a conviction is a remedial tool: it's by far the most direct method that an appellate court has to send messages to trial judges, trial lawyers, and the police about what's crucially important at criminal trials and in criminal investigations. Sure, courts can fill their opinions up with dicta about the importance of this or that right or procedure in the trial and investigative process, but reversals are the things that judges, lawyers, and cops really pay attention to.

For this reason, the decision about whether to place a particular trial or investigative error in the "automatic reversal" category or the "reverse-only-if-the-error-made-the-conviction-unreliable" category is a very important decision.

It's a decision about values. In making the call, the appellate court is asking itself a very important question: what are the values in the criminal trial and investigative process that we appellate judges ought to be enforcing?

This is precisely the point on which the majority and the dissent parted company in yesterday's opinion. The 5-Justice majority (led by Justice Scalia) sees the right to choose an attorney as serving a value of constitutional magnitude – choice about representation – whose importance is a constant in all trials, not a function of the facts of a particular case. For the majority, it's a right grounded in autonomy – we might even say a dignitary right of the defendant to control the basic question of who will speak for him, and against the government, in a trial for his liberty.

The 4-Justice dissent (authored by my old boss Justice Alito) sees no point in this. If the lawyer who actually did represent Mr. Gonzalez-Lopez was an effective lawyer, says the dissent, then there's no point in rolling out the big gun of appellate reversal. The conviction was fair, and an accurate reflection of the defendant's guilt. Once an appellate court has assured itself of the fairness and accuracy of the verdict, its function is really at an end. To whatever extent the 6th Amendment protects the defendant's autonomy and dignity interests, the dissent effectively implies, those things aren't our department up here on appeal.

I note two final things.

One of them is the breadth of Justice Alito's position. "The touchstone of structural error is fundamental unfairness and unreliability," he says on page 8 of his dissent. In this part of the opinion he challenges something that I think we had all assumed was settled: namely, that if an error goes in Fulminante's "structural error" rather than "trial error" column, it requires automatic reversal of a conviction. Justice Alito argues here for the creation of a new category: "harmless" "structural" errors. This would be a significant shift in the law. And he has four votes for this proposition; none of the other dissenters expressed discomfort with this portion of the dissent.

The other final thing I note is that lots of precedent contradicts Justice Alito's position about structural error. Consider, for example, race discrimination in the selection of a grand jury. Under current law (Vasquez v. Hillery), a defendant's conviction must automatically be reversed if the grand jury that indicted him excluded blacks on account of their race. It is of no moment that the grand jury had enough evidence to indict, or that a properly selected trial jury convicted the defendant after a fair trial. It's structural error, and the conviction gets reversed. The value that appellate reversal is enforcing in a case like this has nothing to do with the reliability of trial verdicts. It has to do with the value of antidiscrimination in the criminal process.

Or consider the right to a public trial. It is quite possible to imagine trials that would be far likelier to produce "reliable" outcomes (in the sense that Justice Alito means) if they were conducted in private. Yet the denial of a public trial is a structural error requiring automatic reversal; there's a value in the public-ness of a trial that doesn't implicate reliability but that merits appellate policing.

Or consider the right of a criminal defendant to represent himself, established in Faretta v. California. Surely the results of many trials of self-representing defendants would be more "reliable" (in the sense that Justice Alito means) if the defendants were forced to be represented by a competent lawyer. Yet the denial of the right to self-representation is automatically reversible structural error. There's a value to the right to self-representation (grounded, like the right in Gonzalez-Lopez, in the defendant's autonomy and dignity) that deserves appellate policing without regard to outcomes.

Justice Alito seems to have four votes to take the Court in a very different direction on this very important question.

(Hmmm. This blog post ended up feeling suspiciously like a rough draft of a law review article. Especially for me. What has come over me?)