pThe US Supreme Court ruled Monday in Gonzalez v. United States that allowing a magistrate judge to oversee jury selection does not deprive a criminal defendant of the right to a jury trial and complies with the Federal Magistrates Act. The holding affirmed a judgment of the US Court of Appeals for the Fifth Circuit that defendant's counsel may waive the right to have an Article III judge preside over voir dire, and that it was not error to proceed without first getting the defendant's personal consent. Justice Kennedy announced the judgment of the Court; his opinion was joined by Chief Justice Roberts and Justices Stevens, Souter, Ginsburg, Breyer, and Alito. Justice Scalia filed an opinion concurring in the judgment, and Justice Thomas wrote a dissent. /ppIn affirming the Fifth Circuit ruling, Justice Kennedy wrote: /ppNumerous choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance, depend not only upon what is permissible under the rules of evidence and procedure but also upon tactical considerations of the moment and the larger strategic plan for the trial. These matters can be difficult to explain to a layperson; and to require in all instances that they be approved by the client could risk compromising the efficiencies and fairness that the trial process is designed to promote.
In a separate concurrence, Justice Scalia agreed with the conclusion but not with the reasoning upon which it was based. He wrote: /ppI would not adopt the tactical-vs.-fundamental approach, which is vague and derives from nothing more substantial than this Court’s say-so./ppIn his dissent, Justice Thomas advocated overruling the precedents for the decision and wrote:
Where, as here, a mistaken interpretation of a statute leaves the Court with no principled way to answer subsequent questions that arise under the statute, it seems to me that the better course is simply to acknowledge and correct the error.
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