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Right to Counsel Case Analysis

It is imperative that trial courts and attorneys know that a guilty or no contest plea cannot be conducted with defense counsel appearing only by speakerphone, and that doing so is not subject to harmless error analysis, but is prejudicial per se.

No one can know for sure just how widespread this practice may be, but the fact that it was used in a case as serious as this (homicide) suggests that it may be all too common.

Arguably, the decision in this case could be distinguished if enough procedural protections were provided. The court wrote at one point, “No advance arrangements had been made for a private line in a private place,” suggesting that this could overcome the procedural infirmity.

Even if this were done in a future case, however, the conviction would still be overturned. Later, the court wrote, “Physical presence is necessary not only so that counsel can keep an eye on the client and the prosecutor, but so that the court can keep an eye on counsel. Even if a private line had been arranged for Van Patten to speak with his attorney, we would regard long-distance lawyering in critical-stage proceedings as inadequate to safeguard effective assistance of counsel and the integrity of the judicial process.”

There is also much in the decision that suggests that conducting a sentencing in this manner would be subject to U.S. v. Cronic, 466 U.S. 648 (1984), and require a new sentencing, as well.

The court noted, “for most criminal defendants a change of plea hearing is the critical stage of their prosecution (emphasis in original).” Arguably, the same can be said of sentencing.

The court later noted, “Defense counsel should be fully engaged at a plea hearing no less than at trial because in both settings, ‘the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor (cite omitted).’”

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To any federal court judge, long-accustomed to the “intricacies” of the federal sentencing guidelines, conducting a sentencing in the manner the change of plea hearing was done in this case would be unfathomable. As in state court, the vast majority of federal charges are resolved with a plea, and cases are, to a large degree, “won” or “lost” at sentencing.

For these institutional reasons, even though a state court sentencing is not as formal, federal judges reviewing state court convictions in the habeas corpus context may attach more significance to sentencing than state court ones.

In addition, the court noted, “Defense counsel must also ensure that the prosecutor fully performs his end of whatever deal has been struck.” The agreement may be stated on the record at the plea hearing, but ultimately, performance occurs at sentencing.

As a result, any sentencing conducted in this manner is likely to be found infirm as well.

– David Ziemer

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David Ziemer can be reached by email.

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