Lawyer choice is your Sixth Amendment right, says Fairfax DUI lawyer

Lawyer choice is your right under the Constitution’s Sixth Amendment, rather than merely allowing you to have an attorney. As a Fairfax criminal lawyer, I know that not only; does the Sixth Amendment guarantee that “In all criminal prosecutions, the accused shall enjoy the right… to have the Assistance of Counsel for his defence,” but also that the Supreme Court interprets the foregoing right as extending to government funding for those criminal defendants too indigent to hire an attorney (when facing possible jail exposure) (Gideon v. Wainwright, 372 U.S. 335 (1963); Scott v. Illinois, 440 U.S. 367 (1979)); requiring that counsel be effective (Strickland v. Washington, 466 U.S. 668 (1984)); and (with court administration-related limits) the right to choose one’s own paid attorney (U.S. v. Gonzalez-Lopez, 548 U.S. 140 (2006)).

Am I guaranteed a Virginia court-appointed counsel if I am indigent and if my criminal case is jailable?

In Scott v. Illinois, 440 U.S. 367 (1979), the Supreme Court declined to extend the Sixth Amendment right-to-an-attorney protection to people who are not facing possible jail exposure, and even who were convicted of a jailable offense but not given an active nor suspended jail sentence. By the way, the applicable law in Virginia makes clear that there is no lawyer choice with court-appointed nor public defender attorneys, so long as one is assigned to an indigent defendant. Virginia judges are not obligated to grant a court-appointed lawyer (whether a public defender attorney or private-practicing attorney accepting court appointments) to an indigent defendant where possible jail exposure is taken away as a possible penalty, as provided by the following language from the Virginia Code: “However, if, prior to the commencement of the trial, the court states in writing, either upon the request of the attorney for the Commonwealth or, in the absence of the attorney for the Commonwealth, upon the court’s own motion, that a sentence of incarceration will not be imposed if the defendant is convicted, the court may try the case without appointing counsel, and in such event no sentence of incarceration shall be imposed.” Virginia Code § 19.2-160. Unfortunately, the foregoing state of affairs empowers an assistant commonwealth’s attorney / Virginia prosecutor to improve his or her chances of racking up career and reputation-crippling convictions by reducing the risk that a lawyer will be defending the accused.

Am I guaranteed a trial date continuance if I appear in court without a lawyer?

Beware relying on obtaining a continuance of your first trial date merely by appearing without an attorney and asking for more time for a lawyer. If denied a continuance when without an attorney, you get no lawyer choice at all, unless you find one to represent you that same day, or one who represents themselves as being hired and then obtains a court date rescheduling. If you have had an arraignment date, you should not expect to be granted a postponement on your first trial date. To enable a criminal defendant to seek a court-appointed attorney and to have meaningful representation by that counsel, “Courts before which criminal proceedings are pending shall afford such continuances and take such other action as is necessary to comply with the provisions of this chapter [addressing indigent counsel].” Va. Code § 19.2-162. Furthermore, as to both retained and court-appointed attorneys: “whenever a person charged with a criminal offense the penalty for which may be confinement in the state correctional facility or jail, including charges for revocation of suspension of imposition or execution of sentence or probation, appears before any court without being represented by counsel, the court shall inform him of his right to counsel. The accused shall be allowed a reasonable opportunity to employ counsel…” Virginia Code § 19.2-157.

Are judges permitted to favor police officer schedules over Virginia criminal defense lawyers’ schedules? What does that do to lawyer choice?

In the Virginia General District Courts where I practice, trial dates ordinarily are set around the scheduled court dates of police / law enforcement officers (LEO). The thinking behind that may be to ease LEO’s schedules for them also to do police work, and to reduce the number of police officers that a prosecutor needs to deal with in one court day. At the same time, when read together, the Due Process under the Constitution’s Fifth and Fourteenth Amendments, the Sixth Amendment’s right to counsel provision, and U.S. v. Gonzalez-Lopez, 548 U.S. 140 mean that the courts should not elevate the importance of police officer schedules over those of private Virginia criminal lawyers, nor should courts bar lawyers from entering cases whose trial date clashes with the lawyer’s schedule rather than making reasonable accommodations. In the great majority of instances, judges make reasonable accommodations for my schedule in setting trial dates. At the same time, it does not sound fair for my clients’ speedy trial rights under the Sixth Amendment nor for Due Process purposes to cause a criminal defendant to wait for months to proceed to a misdemeanor trial date merely because their lawyer was not available on earlier police officer court dates (particularly in those instances when the police officer has designated court dates that are less frequent than monthly, which sometimes happens).

The Supreme Court and the Constitution require reasonable accommodations to your Virginia criminal lawyer’s schedule in calendaring court dates

While Gonzalez-Lopez does not outright bar the foregoing practice of favoring setting trial dates around police officers’ calendared court dates, the Sixth Amendment, Gonzalez-Lopez and Virginia caseslaw (for instance, London v. Virginia, 49 Va. App. 230 (2006)), when read together, require breathing life into a Virginia criminal defendant’s choice of an attorney, which means making reasonable accommodations for the attorney’s schedule. Otherwise, more attorneys might hesitate to enter their appearance in a case when unsure that the court will help them resolve pre-existing date conflicts, or might raise their fees when uncertain whether they will have more court flexibility than preferred. A fewer number of available desired attorneys and higher fees both fly in the face of the very choice of retained counsel that Gonzalez-Lopez says is important to protect. Because Gonzalez-Lopez makes clear that attorneys are not fungible — thus the importance of lawyer choice — and that one’s choice of retained counsel is a personal choice that takes into consideration such vital matters as how the client and attorney click together, it is essential for judges to spend sufficient thought and effort to reasonably accommodate the calendars of private lawyers in scheduling court dates.

Fairfax criminal lawyer Jonathan Katz is fully devoted to exceeding the Constitutional guarantee of effective assistance of counsel. When Jon Katz returns from court victorious to his office — often accompanied by his client — Jon proclaims a victory cheer to his staff, who share the invigoration of the fruits of their hard work. Jon gets as much of a thrill over his latest Virginia criminal defense victories as with his earliest successes. You will learn great possibilities about your defense by calling 703-383-1100 for your free in-person consultation with Jon about your court-pending case.