Don't Worry, I'll Be Right Back: Temporary Absences of Counsel During Criminal Trials and the Rule of Automatic Reversal

• Publication year: 2021

85 Nebraska L. Rev. 186. Don't Worry, I'll Be Right Back: Temporary Absences of Counsel During Criminal Trials and the Rule of Automatic Reversal

186

David A. Moran(fn*)

Don't Worry, I'll Be Right Back: Temporary Absences of Counsel During Criminal Trials and the Rule of Automatic Reversal

TABLE OF CONTENTS

I. Introduction ....................................................... 186
II. The Fundamental Nature of the Right to Counsel at
Trial ............................................................. 189
A. A Brief Historical Review of the Right to Counsel .............. 190
B. The Right to Counsel and the Rule of Automatic
Reversal ....................................................... 193
III. The Special Problem of Temporarily Absent Counsel ................ 197
A. Where Did She Go? How and Why Counsel Goes
Missing ....................................................... 198
B. Temporary Absences and Structural Error: The
Recent Shift .................................................. 200
IV. Why Temporary Absences Should Be Regarded as
Structural Error .................................................. 203
A. Supreme Court Precedent and the Recent Refusal to
Apply Cronic ...................................... 204
B. Temporary Absence of Counsel as a Paradigm
Structural Error ............................................... 207
V. Conclusion ......................................................... 211

I. INTRODUCTION

When the victim testified during Pamela Green's trial for kidnapping and gross sexual imposition, Green's lawyer, John Carlin, never

187

asked her a single question.(fn1) In fact, it would have been impossible for Carlin to cross-examine the victim because he had left the courtroom to attend a hearing for a client in another case.(fn2) After Green repeatedly complained about Carlin's absence and asked the judge to provide her with another attorney who might actually stay in the courtroom while the prosecution's principal witnesses testified, the judge not only rejected the request but also revoked Green's bond and remanded her to jail for the remainder of the trial.(fn3) Not surprisingly, Green was convicted.(fn4)

As the jury went out to deliberate David Hudson's fate at the conclusion of his first-degree murder trial, his attorney, Stuart Young, left to attend to another case after telling the judge to respond as he saw fit to any questions the jury might have.(fn5) Not long after Young's departure, the jury asked the judge to explain the concept of aiding and abetting and to define the difference between first- and seconddegree murder.(fn6) The judge responded by re-reading some of the murder instructions previously given and by reading a definition of aiding and abetting that the judge had read earlier for one of the other charges against Hudson.(fn7) Since Young was not present for this reinstruction of the jury, there were no objections. The jury convicted Hudson of first-degree murder the next day.(fn8)

These two cases bear an obvious similarity: the attorneys for both Pamela Green and David Hudson were absent during portions of their criminal trials in clear violation of the bedrock Sixth Amendment(fn9) rule that a criminal defendant has the right to have the assistance of counsel throughout the entire trial.

When these two cases reached the Sixth Circuit on habeas corpus review sixteen years apart, however, the court applied two very different rules of decision. In Green, the court held that the temporary absence of her attorney automatically required a new trial regardless of whether Green had been harmed by the temporary absence of counsel.(fn10) In so holding, the court applied the Supreme Court's decision in United States v. Cronic,(fn11) in which the Court endorsed a rule of "uni

188

formly" reversing a conviction without requiring a showing of prejudice when counsel was absent from a critical stage of the trial.(fn12) In Hudson, by contrast, the same Sixth Circuit concluded that Cronicdid not apply, and that Hudson was not entitled to a new trial because he had failed to demonstrate exactly how the temporary absence of his attorney during the trial had harmed him.(fn13)

Cases such as Hudsonand Green in which defense attorneys are temporarily absent from a criminal trial are, unfortunately, not terribly unusual. These temporary-absence cases have recently produced a significant split of authority, as exemplified by the Sixth Circuit's apparently inconsistent decisions in Greenand Hudson, as to whether the defendant whose lawyer is temporarily absent must show prejudice from the absence in order to obtain a new trial, or whether the Cronicrule of automatic reversal applies in such situations.

Since the Supreme Court's landmark decision in Gideon v. Wainwright,(fn14) it has been black-letter constitutional law that a criminal defendant enjoys an absolute Sixth Amendment right to the assistance of counsel during the trial of any case in which he or she faces the prospect of incarceration.(fn15) Because of the fundamental importance of the right to counsel, the Court has repeatedly affirmed that the denial of the right to counsel is a "structural" error--an error requiring automatic reversal of a criminal defendant's conviction without any showing of prejudice.(fn16)

Until very recently, the lower courts had nearly uniformly applied the rule of automatic reversal to any absence of counsel during anysignificant portion of a criminal trial. Since 2002, however, several lower courts, including three federal circuits, have concluded that the rule of automatic reversal does not necessarily apply to significant but temporary absences during criminal trials, and that instead, the defendant must point to specific prejudice arising from counsel's absence to obtain relief.(fn17)

In this Article, I will argue that these recent refusals to apply the Cronicrule to temporary absences of counsel during trial are wrong.

189

In other words, I will argue that the result in Pamela Green's case was correct and the result in David Hudson's case was incorrect because the absence of counsel from any significant portion of a criminal trial should automatically result in a new trial, unless the defendant has specifically waived the right to have counsel present.

In support of this argument, I will first show that there are no doctrinal reasons to explain the recent refusal of the lower courts to apply the Cronicrule of automatic reversal in temporary-absence cases. On the contrary, in Bell v. Cone,(fn18) the Supreme Court's most recent case applying the Cronicstandard, the Court concluded that the rule of automatic reversal did not apply to the alleged deficient performance of defense counsel in that case, but took pains to reaffirm that actual absence of counsel from a critical stage remains an error that does require automatic reversal.(fn19)

Second, I shall argue that, even aside from precedent, the Cronicrule of automatic reversal should apply to temporary absences of counsel during criminal trials because such errors are truly "structural"-- that is, not amenable to meaningful harmless-error review. A reviewing court cannot possibly assess the effect of counsel's absence from a cold transcript because such review completely misses an essential part of counsel's role: to tailor his or her case to the reactions of the jury. As a corollary to that point, practical considerations require that temporary attorney absences during trial be treated as structural error because it is very difficult to identify exactly what counsel would have done had he been present when he was, in fact, not present. In other words, because trial judges realize that it will usually be impossible for criminal defendants to establish prejudice from the temporary absence of their attorneys, appellate courts must apply the Cronic rule to firmly discourage judges from conducting any trial proceedings without counsel present.

II. THE FUNDAMENTAL NATURE OF THE RIGHT TO COUNSEL AT TRIAL

To understand why the temporary absence of counsel from a criminal trial should be treated as an error requiring automatic reversal of a resulting conviction, it is first necessary to review the established contours of the right to counsel in criminal cases. In this Part, I will briefly review the historical development of the constitutional right to counsel. In doing so, I will emphasize how the doctrine has developed to require the assistance of counsel throughout an entire criminal case

190

from the moment charges are filed through a first appeal of the conviction.

I will then discuss how the Supreme Court came to regard the right to counsel as so fundamental that a violation of the right became structural error--that is, error requiring automatic reversal of a conviction. I will distinguish the Court's cases holding that various types of attorney error are subject to harmless-error review from those holding that absence of counsel at a critical stage of the proceedings are not subject to such review.

A. A Brief Historical Review of the Right to Counsel

The Sixth Amendment guarantees the accused in a criminal case the "Assistance of Counsel for his defence."(fn20) Despite this seemingly clear language, however, the Sixth Amendment right to counsel was initially understood to mean only that a criminal defendant who could afford to retain an attorney would be allowed to have the attorney assist with the defense.(fn21) The drafters of the Sixth Amendment deemed this provision necessary because at the time of the American Revolution, English law did not permit a criminal defendant charged with a felony, other than treason, to have counsel assist him or her at trial.(fn22) The Sixth Amendment was thus not understood to guarantee federal defendants the right to appointedcounsel, nor, as a matter of...