6A: Right to Counsel

Question 1

Regulating Police Questioning

Answer 1

Regulating Police Questioning:
- Miranda & Custodial Interrogation
- Due Process Clause & Voluntariness
- Sixth Amendment Right to Counsel

Under 6a - interrogation = law enforcement intentionally attempts to elicit incriminating responses [focus more specifically on officer intent]

Under 5a – interrogation = law enforcement questioning in an inherently coercive environment [focused on the effect upon the listener]

Question 2

Brewer v. Williams (Christian Burial Case)

Answer 2

dude turned himself in. spoke to his lawyer and the lawyer spoke to cops transporting him and told them not to talk to him. He was arraigned. Coffered with other lawyer that told him also not to talk. Was given Miranda by judge. During ride to Des Moines, cop gave Christian Burial speech and that led dude to tell cops were items and body were. But he continually told cops he would talk to hem when they got to Des Moines

VIOLATED 6A - wavier requires not merely comprehension but relinquishment, and Williams’ consistent reliance upon the advice of counsel in dealing w authorities refutes any suggestion that he waived that right. His statements that he would tell the whole story after seeing McKnight were clearest expression by Williams himself that he desired presence of atty before interrogation took place.

• Judicial proceedings had begun against Williams: warrant for arrest, arraigned on warrant, committed to jail
• Detective deliberately and designedly set out to elicit info from Williams just as if he had interrogated him.

 6TH AMEND APPLIES B/C JUDICIAL PROCEEDINGS HAD BEEN STRATED IN DAVENPORT

Question 3

Takeaways from Brewer (for 6A)

Answer 3

Takeaways from Brewer (for 6a)
-The 6a rt to counsel attaches at arraignment
-The 6a rt to counsel prohibits police-initiated questioning designed to elicit incriminating statements w/o counsel present, esp while suspect is in custody
o Interrogation defined by officer intent rather than effect on suspect (contra Innis rule under 5a)
o This means counsel must be present when the police interrogate, unless the D waived the 6a rt to counsel
o Brewer held that not all waivers under 5a equal waivers under 6a, although the std from Zerbst (knowing, voluntary, intelligent) is the same

Question 4

Notable Holdings Post-Brewer

Answer 4

Stimulating conversation (even if undercover) in order to “elicit” incriminating statements post-indictment counts as “deliberate eliciting” under the 6A. (Kuhlmann) (requiring informant “took some action.”; (Us v. Henry)

Kuhlmann limited Henry. In Henry, informant initiated and engaged in convo and that is a violation of 6A. But in Kuhlmann, informant was instructed not to talk and try not to engage. Just try to be a “listening post.” thus, 6A was not violated.

Michigan v Jackson (1986) – once Ds 6a right to counsel has attached and has been asserted by D, the authorities can no longer approach that D to seek waiver of right to counsel, even if Miranda warnings are properly given and D clearly expresses desire to waive. Assertion of 6A right to counsel bars police reinitiation of interrogation and presumptively invalidates any subsequent waiver. BUT SEE - Montejo v. Louisiana

Question 5

Montejo v. Louisiana, (2009) → OVERRULED Michigan v. Jackson!

Answer 5

Court ordered counsel. He subsequently waived Miranda. wrote apology letter to widow of murder victim.

JACKSON OVERRULED. Jackson would lead to unworkable std or arbitrary distinctions btwn Ds in diff states.
- Assertion of the right to counsel under 5a is sufficient to protect against post-indictment custodial interrogation under 5a and 6a
- The failure to invoke the right to counsel, after Miranda warnings, and even after it has attached under 6a, means police-initiated questioning can cont and police can seek a waiver (similar to police being allowed to question and seek waiver until the moment of invocation under Edwards)
- Wavier under 5a right to counsel is sufficient for waiver under 6a right to counsel * (reaffirming Patterson)
o * Montejo does not seem to disturb Massiah, such that surreptitious (undercover) questioning post-indictment still requires specific waiver under the 6a

• Michigan v. Jackson OVERRULED - it is unworkable - the way the state court interpreted it is WRONG → Jackson requirement that D must ASSERT 6th amend right to counsel is NOT EASILY APPLIED IN ALL CASES - particularly in this case where D seems to have passively accepted the court appointed counsel, instead of expressly asserting it himself - not all states require a D to formally request counsel as many just automatically appoint counsel

Question 6

5A and 6A intersection

Answer 6

Assertion of the right to counsel under 5A is sufficient to protect against post-indictment custodial interrogation under both the 5A and 6A

the failure to invoke the right to counsel, after Miranda Warnings, and even after it has attached under the 6A, mean police-initiated questioning can continue and police can seek a waiver (similar to police being allowed to question and seek waiver until the moment of invocation under Edwards)

Waiver under the 5A right to counsel is sufficient for waiver under the 6A right to counsel* (reaffirming Patterson)

Montejo does not seem to disturb Massiah, such that surreptitious (undercover) questioning post-indictment still requires specific waiver under the 6A

Question 7

6A RTC History

Answer 7

• The right to counsel originally meant a court could not deny counsel the opportunity to be heard on behalf of a party
• SCOTUS, in Powell v Alabama, held that in limited circumstances (capital cases + vulnerable D; special circumstances rule) the govt had to appoint counsel to comply w 6A
• Betts v Brady (1942) – Betts indicted for robbery in MD st ct, indigent, judge would not appoint counsel unless murder/rape case. He alleged a denial of right to counsel under 14a. Holding: refusal to appoint counsel for an indigent D charged w felony did not necessarily violate 14a. [noncapital cases, a special circumstances rule that constitutionally required the appointment of counsel only when the absence of counsel would result in a trial offensive to the common and fundamental ideas of fairness and right.]
• Johnson v Zerbst (1938) – held that 6a required the appointment of counsel in all fed noncapital crim prosecutions.

Question 8

Gideon v. Wainwight

Answer 8

D charged in state court for breaking and entering (felony), he was indigent, and asked for court appointed counsel. Judge declined, not a capital offense.

Holding: BETTS OVERRULED. Betts was wrong in concluding that the 6a guarantee of counsel is not a fundamental right; 6A incorporated via 14A which guarantees the right to counsel in state court. Defense counsel as a NECESSITY to ensure a fair trial.

Question 9

Post Gideon: Misdemeanors and Actual Incarceration

Answer 9

-Gideon’s rule was extended to all criminal cases that result in jail time. Argersinger v. Hamlin (1972) (D sentenced to 90 days in jail w no counsel; creating “actual incarceration” requirement for right to counsel to exist for misdemeanors).
o No person may be imprisoned for any offense, when classified as a petty, misdemeanor, or felony, unless represented by counsel at his trial (UNLESS valid waiver)
o *Note: Gideon still requires counsel for felony charges even if incarceration does not occur. Nichols v. United States (1994).

-This means that the right to counsel does not extend to defendants who do not receive jail time as part of their sentence, even if they potentially could have. Scott v. Illinois (1979).
o Scott – convicted of crime that carries jail time, but D only got fine. HELD: 6A requires only that no indigent D be sentenced to a term of imprisonment unless state afforded him right to counsel.

-But an uncounseled first conviction can be used to enhance the sentence for a subsequent offense where the defendant receives jail time. Nichols (overruling Baldasar v. Illinois (1980)).
o in Nichols, D convicted of misdemeanor and fined for DUI; yrs later convicted on drug charges, and they used his uncounseled DUI conviction to give him more years on fed prison sentence. SCOTUS upheld the sentence bc uncounseled conviction can be used to enhance sentences for subsequence charges.

Question 10

Alabama v. Shelton

Answer 10

D convicted of 3rd degree assault, a misdemeanor, w a max punishment of 1 yr imprisonment and $2000 fine. He was sentenced for 30 days, but court suspended the sentence and was placed on 2 yr probation conditions on payment of fines

: suspended sentence that may “end up in the actual deprivation of a person’s liberty” may not be imposed unless D was accorded the guidance of counsel in the prosecution for the crime charged.
Suspended sentence that could result in incarceration of there is a probation violation = right to counsel

• This case is different from Gagnon and Nichols → in those cases, D had a recognized right to counsel when adjudicated guilty of the felony offense for which he was imprisoned - unlike this case which revocation of probation WOULD TRIGGER A PRISON TERM, imposed for a misdemeanor of which D was found guilty WITHOUT THE AID OF COUNSEL
• SHELTON IS ENTITLED TO APPOINTED COUNSEL AT THE CRITICAL STAGE WHEN HIS GUILT/INNOCENCE OF THE CHARGED CRIME IS DECIDED AND HIS VULNERABILITY TO IMPRISONMENT IS DETERMINED

Question 11

When must counsel be present?

Answer 11

1 - ATTACHMENT: Initiation of proceedings
Gouveia – 6a right to counsel attaches when a D becomes subject to adversary judicial criminal proceedings: formal charges, preliminary hearing, indictment info, arraignment.
NOTE: arrest = limited right to counsel

2 – “CRITICAL STAGE”
Where the presence of counsel is required to protect the legal rights of the D, typically to protect DEFENSE ultimately at trial. See Rothgery (Alito, concurring)
Get counsel at CRITICAL STAGES to protect legal rights of D:
- enter plea
- hearing is held about evidence admissibility
- preliminary hearing (Coleman)
- initial appearance (Brewer)
- arraignment (Hamilton)
- informational meeting between D and representatives of state that’s designed or likely to elicit incriminating info from D (Massiah)

• Suspects who are under investigation, but not yet charged w/ a crime have NO 6th amend right to counsel (but upon moment of their arrest, they acquire a limited 5th amend right to counsel pursuant to Miranda)
• Once a D is FORMALLY CHARGED and brought to court to begin “formal legal proceedings, 6th amend right OFFICIALLY ATTACHES!

Question 12

Rothgery v. Gillispie

Answer 12

• Court held ATTACHMENT occurs when gov has used judicial machinery to signal a commitment to prosecute, once attachment happens, accused at least is entitled to the presence of appointed counsel during any CRITICAL STAGE of the post-attachment proceedings
• Counsel MUST be appointed w/in a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself
• RULE: A crim D’s initial appearance before a JUDICIAL OFFICER, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of 6th amend right to counsel

Question 13

RTC at Line-ups, Show-ups, and Photo Arrays

Answer 13

• Concern w/ this evidence is that state initiated ID procedures, that are potentially disadvantageous to the D, are going to affect overall the fairness of the adjudication – if law enforcement, post indictment, shows a photo array that is suggestive that one of 6 people in array is actual perpetrator, and that person is the D, b/c this is POST INDICTMENT – b/c no counsel present, this sounds like it is affecting his defense b/c no counsel present to make sure everything going on is constitutional
• especially if the ID is crucial to the case b/c there is no other ID
• Line ups and Show ups POST INDICTMENT= CRITICAL STAGES
• Photo Arrays = NOT CRITICAL STAGES EITHER POST OR PRE-INDICTMENT (no counsel present for photo array – but still subject to due process if photo array was tampered w/ as to be unduly suggestive – but evidence can STILL get in if in Court ID is reliable)

NO RT TO COUNSEL:
-Pre-indictment lineup: (Kurby); no RTC because no adversarial crim proceeding so no 6A trigger
-Photo arrays: (Ash)

Question 14

6A ID Violations and Admissibility

Answer 14

-Even if an ID violates 6th Amend right to counsel, a later ID at trial by witness can be admitted IF gov can prove by “clear and convincing evidence” that the in-court ID is not tainted by the pre-trial procedure
-Factors to consider include:
- 1. The witness’ opportunity to observe the criminal act
- 2. The accuracy of the description of the accused
- 3. Any failure on the part of the witness to identify the accused beforehand
- 4. The amount of time between the crime and the tainted identification. Wade

Question 15

Due Process ID Violations and Admissibility

Answer 15

-Even if an ID is “unnecessarily suggestive,” the ID is excluded ONLY IF introduction at trial would create a “substantial likelihood of misidentification.”

-Reliability is assessed under all the circumstances, w/ following factors:
- 1. The witness’ opportunity to view the suspect
- 2. The witness’ degree of attention
- 3. The accuracy of the description of the suspect
- 4. The witness’ level of certainty
- 5. The amount of time between the crime and the identification. Manson v. Brathwaite (1977).

Question 16

When does the RTC end?

Answer 16

-Until the final determination by trial judge of sentence to be imposed - Mempa (1967)
- Parole revocation isn’t part of crim prosecution, although DP mandates certain procedural protection. -Morrissey (1972)
- Gagnon: held that there’s a rt to counsel at parole or probation hearing when there’s a special circumstance- such as:
o (1) didn’t commit alleged violation of parole/probation or
o (2) if violation is a matter of public record and uncontested, there’s substantial reason that justified/mitigated the violation and make revocation inappropriate
- Counsel doesn’t to be appointed for inmates place in admin segregation as result of crime committed while incarcerated, unless adversarial proceedings begin. Gouveia
- All first-level crim appeals, whether discretionary or “as of rt,” must be accompanied by Douglas rt to appointed counsel for indigents.- Halbert
- Ake: held whenever indigent Δ demonstrates to trial judge that sanity at time of offense is significant factor, state must, at a min, assure Δ access to competent psychiatrist who will conduct examination/assist in valuation/preparation/presentation of defense

Question 17

Effective Assistance of Counsel (Strickland v. Washington)

Answer 17

• 6th amend designed to protect the reliability of the result
• Mere appointment of counsel does NOT satisfy const. guarantee  Right to counsel implies right to EFFECTIVE counsel

. He cited 6 instances of misconduct: (1) lawyer did not move for a continuance to prepare for sentencing hearing; (2) lawyer did not interview/present character witnesses; (3) lawyer did not request psychiatric report; (4) lawyer did not seek a pre-sentence investigation report; (5) lawyer failed to present meaningful arguments to judge and (6) lawyer failed to examine medical reports or cross-examine prosecution’s medical experts. D’s lawyer testified to why he did not do all these things.

The Strickland Standard:
- A D has suffered from ineffective assistance of counsel (1) when attorney has not acted as a reasonably competent attorney (Counsel’s errors must be grave (unreasonable)) and (2) there is a reasonable probability that absent these errors the result of the proceeding would have been different.

Question 18

Criminal Plea Bargaining

Answer 18

• Does 6th amend requirement of effective counsel apply beyond context of prep for and advocacy during a criminal trial? Does it apply to plea bargains?
• (90% of all criminal cases are resolved through plea bargaining)
• Hill v. Lockhart, (1985) → Strickland test applies in plea bargain context but w/ qualification - prejudice prong of Strickland test is not same here - D must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial
• Lee v. US, (2017) → court clarified “the inquiry focuses on a D’s decision making, which may not turn solely on the likelihood of conviction after trial ..” - thus, even a D w/out any plausible legal defense MAY still prevail under Hill IF he can prove based on contemporaneous evidence that w/ proper legal advice, he would have rolled the dice and elected to go to trial

Question 19

Padilla v. Kentucky (Effective Plea Bargaining) (narrow: only applied to deportation)

Answer 19

• RULE: strickland applies to counsel’s advice regarding deportation (civil) consequences, but not necessarily all civil consequences of a conviction.
• 1. Performance: If immigration consequence is CLEAR, attorney MUST advise about it and doing nothing is a violation, this is an affirmative duty (no distinction btw act and omission); even if not clear, attorney should advice there are deportation consequences and advice they might want to talk to a immigration expert
• 2. Prejudice: D must still prove prejudice – that BUT FOR counsel’s errors, D would not have pleaded guilty and would have insisted on trial (reaffirming Hill)
• **court never says that deportation is criminal punishment – more like a collateral consequence
• Deportation is intimately related and an otherwise integral part of the actual conviction, it is difficult to disentangle it from the other penalties
• HILL AND PADILLA: to make a Strickland claim, D must show they would have gone to trial AND would have succeeded – (success does not mean acquittal though, success here means that the result would have been less severe than the plea bargain result)

Question 20

Missouri v. Frye (effective assistance)

Answer 20

charged w/ driving on revoked license and w/ 3 prior convictions, subject to a felony w/ potential prison time of 4 years. Prosecution sent letter to defense attorney offering 2 pleas. One would have subbed a misdemeanor w/ only 90-day sentence. Defense lawyer never told Frye about pleas & they expired. B4 prelim hearing, arrested again for same offense and pled guilty w/ no plea bargain, to original felony charge, sentence to 3 years in prison. Frye alleged defense lawyer rendered him constitutionally ineffective assistance of counsel. Frye said he would have ACCEPTED PLEA if lawyer informed him.
Issue: does right of counsel extend to plea offers that lapse/are ejected? → Holding: YES

• YES → see Hill - yes b/c plea bargains are governed by Strickland test and see Padilla - yes b/c plea negotiation = critical phase for purposes of 6th amend right to effective assistance of counsel
• General rule: defense counsel has duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused
• D must demonstrate that prejudice resulted from a counsel’s deficient performance: D MUST DEMONSTRATE A REASONABLE PROBABILITY THEY WOULD HAVE ACCEPTED EARLIER PLEA OFFER had they been afforded effective assistance of counsel + must show a reasonable probability plea would have been entered w/out prosecution canceling it or trial court refusing to accept it
• TO SHOW PREJUDICE = IT IS NECESSARY TO SHOW A REASONABLE PROBABILITY THAT THE END RESULT OF THE CRIMINAL PROCESS WOULD HAVE BEEN MORE FAVORABLE BY REASON OF A PLEA TO A LESSER CHARGE OR A SENTENCE OF LESS PRISON TIME
• Frye’s attorney clearly did not make a meaningful attempt to inform D of pleas b4 they expired  There is reasonable probability that Frye would have accepted offer - but there is strong reason to doubt that prosecution would have permitted plea bargain to become final

Question 21

Lafler v. Cooper (Effective Assistance)

Answer 21

Cooper was charged w assault w intent to murder, along w three other offenses. Prosecutor offered to dismiss two of the charges, and to recommend a sentence of 51-85 months in prison on the remaining two charges, in exchange for a guilty plea. D wanted to accept, but he rejected the plea offer bc his atty told him that the prosecution would not be able to prove intent to kill bc the victim was shot below the waist. At trial, Cooper was convicted on all counts and received a mandatory minimum of 185-360 months in prison.

Strickland “effective assistance of counsel” applies to plea negotiations, which are a “critical stage” (same a Frye)
-In situations where an offer has been rejected due to counsel’s error and D is convicted at trial, a D must show:
o Unreasonable performance: e.g, claiming that the D cannot be convicted at trial
o Prejudice: must show “reasonable probability” (1) D would have accepted plea offer; (2) it would have accepted by prosecution and by the court; and (3) plea deal sentence would have been less severe than judgment and sentence imposed at trial

Respondent has satisfied the Strickland 2-part test:

Performance: even though it may be unclear atty’s intent when considering the plea, it has already been conceded deficient performance.
Prejudice: respondent has shown that bur for counsel’s deficient performance there is reasonable probability that he and the trial court would have accepted the guilty plea. He received a min sentence 3.5x greater.

Remedy: order state to reoffer the plea agreement, and then the state trial court can exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resented respondent accordingly, or to leave the convictions and sentence from trial undisturbed. [remedy must “neutralize the taint” of a constitutional violation]

• Strickland recognizes that a fair trial does not occur if defense counsel’s deficiencies flow throughout entire process, from pre-trial proceedings to post-trial motions → Cooper’s attorney advised him not to accept plea even though Cooper was willing to accept it!

Question 22

Effective Assistance and Plea Bargaining Summary

Answer 22

PERFORMANCE:
- Strickland applies to conveyance of offer and advice relating to quality and consequence of a plea offer. (Padilla; Lafler; Frye)
- D counsel must affirmatively advise of immigration consequences when they are clear by statute; when unclear, counsel must refer D to get immigration advice. (Padilla)
- D counsel statement that D could not be convicted at trial is deficient. (Lafler)
- D counsel must convey a formal offer that may be favorable to the accused. (Frye)

PREJUDICE
- If counsel gave incorrect advice (or failed to give correct advice) about deportation, D must show she would have not accepted plea and would have proceeded to trial. (Padilla (reaffirming Hill))
- If D did not accept plea due to lapsed offer or rejected offer upon incorrect advice, and later pled guilty to less favorable terms, D must show prejudice under (Frye)
- If d did not accept plea (rejected plea) upon incorrect advice of counsel and was later convicted at trial, D must show prejudice under (Lafler)

Question 23

Faretta v. California (right to go Pro SE)

Answer 23

– D has constitutional right to proceed WITHOUT counsel, as implied in the structure of 6a: 6a speaks to “assistance” of counsel, to aid the willing D, “not an organ of the State interposed btwn an unwilling D and his right to defend himself personally.”
Footnote 46: trial judge may terminate self-representation by a D who deliberately engages in serious and obstructionist misconduct. State may even appoint standby counsel (over objection) to aid accused if and when the accused requests help, and to be available to represent the accused in the event that termination of Ds self-rep is necessary.
Faretta limits:
- Pro se D is entitled to preserve actual control over case he chooses to present to the jury. Counsel should not be able to make or substantially interfere w any sig tactical decisions, control questioning of a witness, or speak instead of D on any matter of importance
- Participation by standby counsel w/o Ds consent should not be allowed to destroy the jury’s perception that the D is representing himself. Right to appear pro se exists to affirm the accused’s individual dignity and autonomy

Question 24

McKaskle v. Wiggins (Standby Counsel)

Answer 24

• Priority under 6a is allowing D to put forth the Ds defense, esp when the jury is present. McKaskle v Wiggins.
  o If the jury is present, and the matter would normally be resolved by an atty, the court should defer to the wishes of the D over standby counsel.
   If standby counsel’s participation over the defendant’s objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded.
  o On appeals, atty can signal to the court that they are withdrawing from appellate representation and do not agree w claims of D by filing an Anders brief that mentions any viable claims.

Question 25

Indiana v. Edwards (Autonomy, competence, waiver)

Answer 25

AUTONOMY, COMPETENCE, WAIVER

Dusky v US (1960): wh the D has “sufficient present ability to consult w his lawyer w a reasonable degree of rational understanding” and has “a rational as well as factual understanding of the proceedings against him.”

Indiana v Edwards (2008) – Criminal D whom st ct found mentally competent to stand trial if represented by counsel but not mentally competence to conduct trial himself.
Issue: wh in these circumstances the constitution forbids a state from insisting that the D proceed to trial w counsel, and state thereby denying D right to represent himself.
Holding: Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings themselves. [autonomy, privacy, dignity]
- Right of self-rep at trial will not “affirm the dignity of a D who lacks the mental capacity to conduct his defense w/o assistance of counsel.”
- Proceedings must be fair + appear fair to all who observe them

Question 26

Post Edwards Summary

Answer 26

-Defendants who are competent to stand trial may represent themselves if they choose to do so. Faretta.
o Competence = ability to consult with lawyer rationally + rational & factual understanding of proceedings against defendant

-Defendants who are competent to stand trial, but incompetent to self-represent may be required to have counsel or permitted to proceed pro se. Edwards (deferring to state judgment on issue).

-Standby counsel can be appointed over objection to ensure proceedings move along, but standby counsel cannot override the ability of a defendant to construct his own defense. Wiggins.

-A waiver of the right to counsel must be knowing and voluntary, and a defendant does not have to be warned by the court that proceeding pro se might lead to lost defense or an unwise decision on the plea. Iowa v. Tovar (2004).
o Only judicial notice of the nature of the charges, the right to counsel, and the range of possible punishments is required by the Constitution

Question 27

US v. Gonzalez-Lopez (Right to counsel of one’s choice)

Answer 27

respondent charged w conspiracy to distribute marijuana. Family hired atty Fahle for him. After arraignment, he called a diff atty, Low, to discuss wh Low would represent him instead of or in addt to Fahle. Respondent told Fahle that he only wanted Low to rep him, so Low filed multiple apps w court, but court kept declining the request. Another atty rep him at trial, convicted.
Issue: wh the court’s erroneous deprivation of a criminal D’s choice of counsel entitled him to reversal of conviction
Holding: accepted conceded premise that D Ct erred in denying his choice of counsel = error violated 6a right to counsel of choice, not subject to a harmless error analysis.
**Only need to show that the right was violated, nothing else. Quality of actual counsel given does not matter.

• The right at stake here - RIGHT TO COUNSEL OF CHOICE (not the right of a fair trial) - right WAS VIOLATED b/c the deprivation of counsel was ERRONEOUS - no additional showing of prejudice is required to make the violation complete

 RULE: deprivation of the right is COMPLETE when the D is erroneously prevented from being represented by the lawyer that he wants REGARDLESS OF THE QUALITY OF THE REP HE RECEIVED!