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Seventh circuit, en banc, says denial of counsel wasn’t “complete” when lawyer was permitted in the room but not allowed to speak or assist

Scott Schmidt v. Brian Foster, 7th Circuit Court of Appeals No. 17-1727, 12/20/18, reversing panel decision of 5/29/18

Schmidt, as we discussed in our post on the Seventh Circuit’s (now reversed) habeas grant, was summoned into chambers and questioned by the judge about the testimony he wanted to give in his defense. His lawyer was allowed to be there but was forbidden, outside of a brief limited consultation, to participate. A majority of the en banc court, over sharp dissent, now says that even though that was pretty clearly unconstitutional, Schmidt’s conviction stands because of the AEDPA standard.

That standard, as we’ve noted, is that on federal habeas review

a petitioner must show the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

And here, as is often the case, whether a legal proposition is “clearly established” or whether a court has applied it “unreasonably” divides the court not because the judges disagree about the meaning of those terms, but because they disagree about what the Supreme Court has and hasn’t said.

The fight in the panel decision was about whether the improvised in-chambers interrogation was clearly established as a “critical stage” in the proceedings, such that the right to counsel attached. In this opinion, the majority assumes that it was, and instead argues that Schmidt has not shown that the judge’s gagging of his lawyer was a “complete denial” of counsel–the type of error for which prejudice need not be shown. See United States v. Cronic, 466 U.S. 648 (1984).

Not so fast, says the dissent–the Cronic line doesn’t require complete denial–it gives it as one instance in which prejudice is presumed. In Cronic, the Court  said it had “uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” 466 U.S. at 659 & n.25. In particular, the dissent notes the Court’s statement in Wright v. Van Patten, 552 U.S. 120, 125 (2008) (which involved a lawyer appearing at a plea hearing by speakerphone) that

The question is not whether counsel in those circumstances will perform less well than he otherwise would, but whether the circumstances are likely to result in such poor performance that an inquiry into its effects would not be worth the time.

The whole of the argument between majority and dissent is hard to summarize–the opinions are long, and they also raise issues of due process, procedural default, and the aforementioned “critical stage.” Suffice to say that practitioners who handle federal habeas claims will want to read the whole thing.

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