No precedent requires attorney's physical presence, rules U.S. Supreme Court.

Byline: David Ziemer

A Wisconsin prisoner won't be getting a second chance after pleading guilty, even though his attorney appeared only by telephone at his change of plea hearing. The U.S. Supreme Court on Jan. 7 reversed the Seventh Circuit's decision granting his habeas corpus petition.

Nevertheless, the practice should not be repeated, as the result could have been different had it been considered on direct review, rather than as a federal habeas corpus review of a state court action.

Joseph Van Patten pleaded guilty to a reduced charge of first-degree reckless homicide, after being charged with first-degree intentional homicide in Shawano County.

His attorney was not physically present during the guilty plea hearing, but appeared by speakerphone, with the participants gathered around the judge's bench. Van Patten was encouraged to take all the time he needed to confer with his attorney, and the court suggested he could talk to him privately if necessary.

After Van Patten was sentenced to the maximum 25 years, he retained different counsel, and moved to withdraw his plea, arguing that his attorney's failure to appear personally violated his right to counsel.

The circuit court denied the motion, the court of appeals affirmed in an unpublished opinion, and the Wisconsin Supreme Court denied review.

Van Patten then sought relief in federal court. U.S. District Court Judge Rudolph T. Randa denied the petition. On appeal, the Seventh Circuit reversed, holding that counsel's appearance by speakerphone was a structural error, and prejudice need not be shown by the defendant. Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006) .

The U.S. Supreme Court vacated the opinion, and remanded the case to the Seventh Circuit to reconsider its holding in light of Carey v. Musladin, 127 S.Ct. 649 (2006).

On remand, the Seventh Circuit reached the same result, again holding that the Wisconsin court of appeals' decision was contrary to clearly established federal law. Van Patten v. Endicott, 489 F.3d 827 (7th Cir. 2007).

The U.S. Supreme Court granted review, and reversed the opinion of the Seventh Circuit, in a per curiam opinion. Justice John Paul Stevens wrote a concurrence.

Ordinarily, Strickland v. Washington, 466 U.S. 668 (1984), applies to claims of ineffective assistance of counsel, and requires the defendant to show prejudice.

However, U.S. v. Cronic, 466 U.S. 648 (1984), applies in limited cases where prejudice can be presumed, such as when...