6th Amendment Violation

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7^th Circuit Court of Appeals

Case Name: Scott Schmidt v. Brian Foster

Case No.: 17-1727

Officials: WOOD, Chief Judge, and HAMILTON and BARRETT, Circuit Judges.

Focus: 6th Amendment Violation

Petitioner Scott Schmidt murdered his wife, Kelly Wing-Schmidt. He admitted the murder but tried to rely on the state-law defense of “adequate provocation” to mitigate the crime from first-to second-degree homicide. A state trial judge denied Schmidt the assistance of his counsel while the judge questioned Schmidt in a pretrial hearing on that substantive issue. Under law clearly established by the Supreme Court of the United States, the evidentiary hearing on that substantive issue was a “critical stage” of Schmidt’s prosecution. By denying Schmidt the assistance of counsel in that critical stage, the state court violated his Sixth Amendment right to counsel.

Schmidt sought post-conviction relief, and the Wisconsin Court of Appeals held that the trial court did not violate Schmidt’s Sixth Amendment right to counsel. That decision was an unreasonable application of clearly established Supreme Court precedent guaranteeing counsel at all critical stages of criminal proceedings, including whenever “potential substantial prejudice to defendant’s rights inheres in the particular confrontation.” Wade, 388 U.S. at 227. Schmidt therefore meets the stringent standards for habeas corpus relief under 28 U.S.C. § 2254(d)(1).

When the State denies a defendant counsel at a critical stage, prejudice is presumed. E.g., Bell v. Cone, 535 U.S. 685, 695–96 (2002); Cronic, 466 U.S. at 658–59. The district court’s judgment is REVERSED and the case is REMANDED with instructions to grant the writ of habeas corpus ordering that Schmidt be released or retried promptly, or perhaps, as the State suggested in the district court, that the state court modify Schmidt’s judgment of conviction to second-degree intentional homicide and re-sentence him accordingly.

Reversed and Remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.