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Monday, May 12, 2008
Gonzalez, a Mexican citizen who does not speak English, was represented by counsel at his federal drug-trafficking trial. After appearing before a United States district judge at several pretrial conferences, he was brought before a United States magistrate judge for jury selection. At a bench conference outside of his presence and before he had the assistance of an interpreter, defense counsel orally consented to the magistrate judge’s presiding over the jury selection process. Thereafter, the magistrate judge did not obtain the defendant's personal consent or even mention that his attorney had consented outside of his presence. No objection to this process was ever posited in the trial court. Must a federal criminal defendant explicitly and personally waive his right to have an Article III judge preside over voir dire? The Supreme Court held that such a personal and explicit waiver by the defendant is neither required by the Federal Magistrates Act, nor is it required by the Constitution. Justice Kennedy, writing for the 8-1 majority, held that express consent by counsel suffices to permit a magistrate judge to preside over jury selection in a felony trial, pursuant to the Federal Magistrates Act, 28 U. S. C. §636(b)(3)( "A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States."). Under Gomez v. United States, 490 U.S. 858, 870, 875–876 (1989) and Peretz v. United States, 501 U.S. 923, 933, 935–936 (1991), such "additional duties" include presiding at voir dire if the parties consent, but not if there is an objection. Although, the Court has indicated in prior cases that the waiver of certain trial rights requires the defendant’s own consent, see, e.g., New York v. Hill, 528 U. S. 110, 114–115 (2000), even in Hill, the Court held that an attorney, acting without indication of particular consent from his client, could waive his client’s statutory right to a speedy trial because "[s]cheduling matters are plainly among those for which agreement by counsel generally controls." Similar to the scheduling matter in Hill, acceptance of a magistrate judge at the jury selection phase is a tactical decision well suited for the attorney’s own decision. To the extent that judges have formal and informal approaches to jury selection, these influencing factors are best known by and sorted through by counsel, who may tactically select a magistrate over the district judge. As with other tactical decisions, requiring personal, on-the-record approval from the client could necessitate a lengthy explanation that the client might not understand and that might distract from more pressing matters as the attorney seeks to prepare the best defense. The Court rejected Gonzalez’s contention that the decision to have a magistrate judge for voir dire is a fundamental choice, or, at least, raises a question of constitutional significance so that the Act should be interpreted to require explicit consent. The majority noted that in this case there were not serious concerns about the Act’s constitutionality and the defendant conceded that magistrate judges are capable of competent and impartial performance when presiding over jury selection. Caveat–The Court notes that its decision does not address two similar but different cases: (1) Whether waiver occurs if counsel consents, but the client makes a timely objection to override counsel’s waiver; (2) Whether waiver may be inferred by failure of a defendant or counsel to object. Justice Scalia concurred, but rejected Justice Kennedy’s tactical-decision vs. fundamental-right test. Instead, he would hold that all constitutional rights are waivable by counsel, except the right to counsel itself. Justice Thomas dissented; he would overrule Peretz and hold that delegation of voir dire violates the Federal Magistrates Act. He would also have held that the unpreserved issue here is cognizable despite lack of a timely objection, in much the same way it was in Nguyen v. United States, 539 U.S. 69, 78 (2003) (reversing federal appellate decision, despite lack of objection to appellate panel consisting of a non-Article III judge). The ruling in Gonzalez overrules contrary Eleventh Circuit precedent, United States v. Maragh, 174 F.3d 1202, 1206 (11th Cir. 2007), which held that the defendant’s personal and explicit consent was required.