The Sixth Amendment and the Right to Choose Appointed Counsel

Author: Melanie Navamanikkam, Associate Member, University of Cincinnati Law Review

The Due Process Clauses of the United States Constitution, along with the Sixth Amendment, guarantee to all felony defendants the right to a fair trial.[1] However, the definition of what exactly constitutes a “fair trial” may be determined by the financial means of the defendant.[2] For the wealthy, a fair trial entails the right to choose counsel that the defendant feels will adequately represent their interests,[3] with the ability to change and substitute counsel over concerns such as lack of trust—a vital component of client-lawyer relationships in criminal cases.[4] A defendant’s ability to protect his or her interests is especially important in a felony cases, where a defendant’s right to liberty and freedom are at stake. On the other hand, while the justice system recognizes the severity of what is at stake for wealthy criminal defendants, poor defendants who cannot afford their own counsel are offered no such acknowledgement.[5] Instead, for indigent defendants, the definition of what constitutes a ‘fair trial’ is confined to mean that poor defendants only have the right to be appointed conflict-free counsel who will represent them at the minimal level required by the law.[6]

The Sixth Amendment unabashedly offers poor defendants, who make up the majority of criminal defendants, a brand of justice that is tipped against them by offering no way to assess their appointed counsel and de minimis means to  hold counsel accountable for the level of representation provided. Such wealth-based discrimination pervasively denies the constitutional guarantee of equal treatment under the law and must be reanalyzed to reflect the objectives of the Due Process Clauses.

Ineffective Assistance of Appointed Counsel: A Poor Man’s Burden

In United States v. Gonzalez-Lopez, Justice Scalia ushered in a new era of a structural-error standard[7] for cases involving convicted defendants seeking reversals based on the complaint that the trial judge erroneously deprived them of their right to choose counsel.[8] The landmark decision held that the denial of a defendant’s timely request to fire and/or hire new representation is a structural error that requires automatic reversal of the conviction.[9] While the Gonzalez-Lopez decision gives wealthy defendants the ability to vacate judgements made against them, the Court’s statements that the poor have no right to choose their defense counsel[10] is widely construed by lower courts as law, despite being dicta.[11]
In contrast to the structural error standard afforded to convicted defendants that retain counsel, convicted indigent defendants are subjected to the higher standard of Strickland v. Washington.[12] In Strickland, an indigent defendant’s death sentence was reaffirmed despite the fact that the appointed counsel made no attempt to gather character evidence from the defendant’s family and friends and did not cross-examine the prosecution’s medical experts to challenge the way the victims had supposedly died.[13] Although Strickland predates Gonzalez-Lopez, the structural error standard from Gonzalez-Lopez extends the structural-error standard only to convicted defendants who were erroneously deprived of the right to choose their own retained counsel.[14] Therefore, indigent defendants are subjected to the Strickland standard, and must prove that appointed counsel acted unreasonably, and demonstrate a reasonable possibility that counsel’s substandard performance negatively affected the outcome of their case.[15] The impossibility of the burden rests with the first prong of the test, since it is such a low threshold that counsel must pass to be deemed ‘reasonable’, and almost any decision or act counsel makes during their representation of the defendant could be deemed as ‘reasonable’ exercise of counsel’s professional judgement.[16]
The imbalance created by these double standards are transparent. Defendants with means to retain counsel have the protected right to seek counsel that can best protect their freedom, while indigent defendants must satisfy difficult to prove standards to secure the same right.[17] The onerous standards placed on indigent defendants dictate that unless representation is so abhorrent that it violates counsel’s ethical duty to act reasonably, an indigent defendant has no choice but to settle for subpar representation. By imposing such limitations on the poor, the Court displays a ‘beggars can’t be choosers’ attitude that has no place in the realm of law and justice.

The Breadcrumb Trail for Inclusion

Although the current interpretation of the Sixth Amendment undeniably results in an unequal application of the law, the evolutionary history of the right to counsel suggests that a more equal and inclusive interpretation of the Sixth Amendment is possible, and quite necessary. An interpretation of the Sixth Amendment that includes an indigent defendant’s right to choose counsel not only increases judicial efficiency and the quality of defense work, but flows organically with the Court’s slow and steady expansion of Sixth Amendment guarantees to the poor. In the early 1930s, the Court began to lay the framework for equality of expansion of the Sixth Amendment with the recognition of an indigent defendant’s  right to counsel in capital crime cases.[18] Less than six years later, this right was extended to all indigent federal defendants,[19] and two decades after that to all indigent felony defendants, regardless of jurisdiction.[20] The history of these cases is a guide towards an inclusive interpretation of the Sixth Amendment which demands equal justice and fairness for all defendants who face loss of their liberty and freedom.

A Model for Empowerment: Participatory Defense

The right to choose counsel is not a free-for-all model in which indigent defendants may insist unrealistically high-priced counsel. Instead, it should be a model in which judicial economy, efficiency, and cost concerns are balanced against equal justice interests. The Albert Corarrubius Justice Project (ACJP), a community based collective in San Jose, California leads one such model coined ‘Participatory Defense.’ The model is a community-based approach to knowledge and support for criminal defendants and their families, and seeks to redistribute and balance current power disparities.[21] Utilizing existing community hubs such as churches and community centers, Participatory Defense mobilizes defendants through education on the structure of the justice system and even the specific charges laid against them.[22] Weekly meetings organized by ACJP connect defendants and families of defendants who are currently navigating through the justice system with former defendants and their families.[23] Once connected with each other, the families share their experiences, have discussions of legal rights and expectations, and critically analyze strategies that affect the outcome of a defendant’s trial.[24]

Participatory Defense banks on a trickledown effect, in which defendants and their families openly articulate their expectations and hold their appointed counsel to higher standards.[25] Giving indigent defendants and their families the knowledge needed to request and expect the best possible defense from appointed counsel, Participatory Defense transforms them into active participants in the defense process.[26] As defendants and their families move through the justice system process, and especially once their cases have been resolved, they continue to stay engaged with the community hubs so that they can pass their knowledge to others.[27] As the wealth of knowledge increases, the communities become empowered with the legal savvy needed to protect the liberty and freedom of their loved ones.[28] The model directly attacks the issue of accountability, providing indigent defendants with a community network that will rally behind them to demand representation that truly fights for the defendant’s interests.

The ACJP model is not only powerful, but it is successful. In just seven years, ACJP has helped indigent defendants collectively shave over 1800 years off their sentences by actively engaging the defendants and their families into the judicial process through Participatory Defense.[29] The model also empowers community participants to mobilize and demand changes such as providing adequate funding to meet the legal needs of their communities.[30] By increasing standards within communities, the model hopes to steadily increase the minimal standard appointed counsel are held to in  Strickland.[31] With raised expectations, both from the client’s perspective and the court’s legal perspective, the model decreases heavy workloads and unsurprisingly improves the quality of defense work as the model refocuses on defense counsel’s quality of work.[32] As the standards that public defenders are held to rise, the threshold that indigent defendant must meet to successfully substitute subpar representation will decrease. This will result in better representation for indigent defendants, and bridge the power gap between those who retain counsel and those who do not.

The Participatory Defense model balances a Sixth Amendment right for indigent defendants to choose counsel with judicial efficiency and budgetary interests. Actively engaging defendants and their families in the judicial process allows the community itself to become the advocators of public defense reform. Other programs, such as one developed by the Neighborhood Defender Service of Harlem, focus on what attorneys can do to raise public defense standards.[33] Such initiatives are necessary for holistic public defense reform, but do not combat the issue of power disparity between defendants who have the means to retain counsel, and those who do not. Furthermore, reform that only focus on the attorney’s role in public defense offers no solution to the lack accountability public defense attorneys have to their clients. The Participatory Defense model addresses both issues that attorney-centric reform programs do not cover. It empowers indigent defendants to become active participants in their defense, and gives them the tools necessary to hold their counsel accountable.


A more inclusive interpretation of the Sixth Amendment is not only necessary to remain faithful to the Due Process Clauses of the U.S. Constitution, but it is in line with the evolution of jurisprudence that interpret the constitutional right to counsel. The Participatory Defense model utilizes community-based education to empower indigent defendants, and makes way for a meaningful right to choose the best possible appointed counsel. Such movements can strike down barriers to legal access and balance the rights of all criminal defendants, regardless of race, social class, or financial means, with a realistic approach to guarantee equal treatment under the law.



[1] Gideon v. Wainwright, 372 U.S. 335 (1964).

[2] See United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006).

[3] Id. at 148.

[4] Robert A. Burt, Conflict and Trust between Attorney and Client, 69 Yale Law School Legal Scholarship Repository 1015, 1019 (1981).

[5] Gonzalez-Lopez, 548 U.S at 144.

[6] Id.

[7] Gonzalez-Lopez, 548 U.S at 152. (The Court held that the denial of right to choose appointed counsel was a structural error that affected the framework of trial procedures themselves. There was no need to apply the ‘harmless error’ standard to analyze whether the denial of change of counsel substantially prejudiced the defendant or not. Since the error violated a guaranteed right, no additional showing of prejudice was required.)

[8] Id.

[9] Id.

[10] Id.

[11] Janet Moore, The Antidemocratic Sixth Amendment, Cincinnati Law Research Paper Series (2016).

[12] Strickland v. Washington, 466 U.S. 668 (1984).

[13] Id. at 676.

[14] Gonzalez-Lopez, 548 U.S at 144.

[15] Id. at 690.

[16] Supra note 11 at 10-11.

[17] Strickland v. Washington, 466 U.S. at 687.

[18] See Powell v. Alabama, 287 U.S. 45 (1932). (The Court expanded the Sixth Amendment to include a right to counsel for defendants in capital crime cases, and right for said counsel to have adequate time to prepare for trial).

[19] Johnson v. Zerbst, 304 U.S. 458 (1938).

[20] Gideon v. Wainwright, 372 U.S. 335 (1964) (overruling Betts v. Brady, 316 U.S.455 (1942), the Court held that the Sixth Amendment right to counsel is applicable to state defendants through the Due Process Clause of the Fourteenth Amendment).

[21] Moore et. al., Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform, 78 Albany Law Review 1281 (2015).

[22] Id. at 1282.

[23] Id. at 1284.

[24] Moore et. al., Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform, 78 Albany Law Review 1281, 1285 (2015).

[25] Id. at 1287. (An ACJP participant challenged her son’s defense lawyer for not utilizing available evidence of his innocence, and challenged the trial judge for racist assumptions of what her son did for work.)

[26] Id.

[27] Id.

[28] Id.

[29] Moore et. al., Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform, 78 Albany Law Review 1281, 1287 (2015).

[30] Id. at 1288. (Participants of the Cobarrubias Justice Project learned that defendants were entitled to representation at misdemeanor arraignments, yet were told by local defender leadership that the office lacked the resources needed to provide defendants with such. In response, the Project participants partnered with civil rights groups to advocate for defendants’ rights, and successfully pressured local authorities into providing the funding required to meet the community’s needs.)

[31] Id. at 1298.

[32] Id. at 1316.

[33] Id. at 1289.

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