Gonzalez v. United States and Jury Selection

Though most summaries of this criminal procedure case I have seen say that this case presents just one major issue, I think that there probably are two issues, one large and the other smaller. The larger is whether a criminal defendant must personally consent to have a federal magistrate judge conduct jury selection or whether it is sufficient if this consent comes through his attorney. The other issue is what is called the "standard of review" for error in a lower court, when the supposed error was not objected to by counsel in the lower court proceeding. All this should become clearer as I give you some facts of the case.

Significant Facts

Homer Gonzalez is a Mexican citizen who was indicted by a federal grand jury in Texas late in 2004 for conspiring to distribute and aiding and abetting in the distribution of large amounts of marijuana in the United States. Mr. Gonzalez speaks no English. He pled not guilty to the charges and then appeared, represented by counsel, in several pre-trial contexts before either a US Magistrate Judge [one step below a US District Judge, but able to carry out many of his/her functions] or a US District Judge. On the eve of trial, January 21, 2005, the Magistrate Judge asked the attorneys to "approach the bench," at which time she asked them, serially, out of earshot of the defendant, whether they would consent to having the Magistrate assist in jury selection in this case. Both attorneys agreed. It was only after this exchange that the Magistrate Judge asked if Mr. Gonzalez needed an interpreter, to which his attorney stated that he did. At no point did the Magistrate Judge actually determine if Mr. Gonzalez personally consented to have the Magistrate Judge conduct jury selection. Mr. Gonzalez's trial began on January 24, 2005, and he was shortly thereafter convicted and sentenced to 190 months in prison.

On appeal, mentioning the point for the first time, Mr. Gonzalez's attorney argued that the Magistrate Judge's presiding over jury selection without Mr. Gonzalez's knowledge and voluntary consent was improper. The Fifth Circuit (483 F3d 393 (2006)) decided two things: (1) that the proper standard to review whether the Magistrate had made an error was the "plain error" rule of Federal Rule of Criminal Procedure 52(b); and (2) that the Magistrate's ruling was not a 'plain error.' Thus, the lower court concluded that Mr. Gonzalez did not personally have to waive his rights to have his own attorney conduct jury selection (called voir dire in law) in order for his consent to be given for the Magistrate Judge to conduct jury selection.

The case is really as simple as this. Did Mr. Gonzalez personally have to consent to the waiver of his right to have his own attorney conduct jury selection? Since the Supreme Court will answer that question directly, it may never get to the issue of whether the "plain error" rule applies here. But let's talk a little law now.

Some Legal Issues

The US Supreme Court has answered two questions on the issue of a defendant's ability to waive jury selection rights and the delegation of the task of jury selection to a Magistrate Judge. First, in a 1989 case (Gomez, 490 US 858 (1989)), the Court held that permitting a magistrate to conduct jury selection over the express objection of the defendant was not permitted. Then, a few years later (Peretz, 501 US 923 (1991)), the Court decided that under some circumstances and when the defendant does not object, jury selection is one of the duties of a District Court judge that may be delegated to a Magistrate judge. The key is that the defendant has to consent in order for the Magistrate to conduct the jury selection. Neither of the two cases says, however, whether the defendant must personally consent, or whether that consent may be given through a lawyer. That is the state of the law today.

It is also the law, under Federal Rule of Criminal Procedure 51 that an objection to a trial court's ruling must be made at the time of the ruling if a defendant wants to get a more lenient standard of review of the decision at the next level. If you first bring up the issue on appeal, the "plain error" rule of 52(b) applies--that is, that there must be "errors or defects" that are "plain" and "affect substantial rights" in the record of the case. There is also a sort of "700 pound elephant rule" (my name!), however, which says that the Supreme Court can "in extraordinary circumstances" exercise its discretion to consider forfeited claims below. It can, thus, do whatever it wants.

Thinking About the Case--Briefly

You wonder sometimes whether Supreme Court Justices make decisions based on the "gut feeling" and then "backfill" with legal citations to justify their "gut." There are a few things we don't know, in this case. It could have been that Gonzalez' attorney, who has a Spanish surname, explained all of this to the defendant before the attorney approached the bench. We don't know. It also could also be the case that someone might be offended that the Magistrate Judge only asked if the defendant needed an interpreter after the decision to let the Magistrate conduct voir dire was made. The lower courts are divided on the major issue presented in this case, with most contending that a defendant doesn't personally have to consent in order to waive his rights to jury selection. The law inches on sometimes, and this, definitely, is one of those cases where things will move "by inches."

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