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Guilty Pleas – “Remote” Appearance – Defendant’s Inability to Confer with Counsel during Colloquy

Wright v. Joseph L. Van Patten,552 US 120 (2008)
Prior history: Joseph Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006), reinstated, 489 F. 3d 827, 2007, on remand from the Supreme Court for further consideration in light of Carey v. Musladin, 549 U. S. ___ (2006); on habeas review of, unpublished opinion of Wis COAFor Van Patten: Linda T. Coberly


Our precedents do not clearly hold that counsel’s participation by speaker phone should be treated as a ‘complete denial of counsel,’ on par with total absence. … Because our cases give no clear answer to the question presented, let alone one in Van Patten’s favor, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’ ” Musladin, 549 U. S.,at ___ (slip op., at 6) (quoting 28 U. S. C. §2254(d)(1)). Under the explicit terms of §2254(d)(1), therefore, relief is unauthorized.

The 7th Circuit had held that counsel’s appearance by speaker phone at a plea proceeding was tantamount to denial of counsel, hence was tantamount to denial of counsel altogether. (“Physical presence is necessary not only so that counsel can keep an eye on the client and the prosecutor, but so the court can keep an eye on counsel. … Because the physical absence of counsel from a hearing where a defendant gives up his most valuable constitutional rights and admits his guilt to a serious charge is a structural defect, the district court erred in finding that the error could be analyzed under a harmless standard.”) The Supreme Court reversal of this holding was not on the merits but, rather, on the procedural ground that in the absence of controlling authority by the Court on this precise issue a habeas court lacks authority to review it. Van Patten, then, and anyone else who has litigated and lost a state court appeal on this issue is simply out of luck. Future litigants, though, are something else, though plainly the thrust must now be on state litigation rather than federal review.

Van Patten’s state court appellate opinion held that remote appearance by counsel at a guilty plea proceeding violated § 967.08, but was harmless error. However, the decision wasn’t published, and therefore isn’t binding. Net outcome: the issue will have to be raised in state court (on direct appeal, most likely) and if relief is denied the remedy will be limited to certiorari to the Supreme Court. You’re starting out, then, with an audience presumably receptive to condemning this process as erroneous. Perhaps in the individual case there may be some basis for assigning fact-specific harm. And, if nothing else, the purely legal question of whether counsel’s “remote” appearance isn’t susceptible to harmless error analysis because it is a “structural” defect will always be present. Again: the state court opinion isn’t binding on this point. The argument might be a tough sell, to be sure, although the 7th Circuit opinion – reversed only on the procedural ground discussed above – can be cited for at least persuasive effect. At a minimum, given the court of appeals’ apparent inclination (albeit in non-precedential form) to regard counsel’s remote appearance as error, counsel might be well-advised to avoid making a “remote” appearance.


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