"x x x.
The U.S. Supreme Court has overturned an appeals court decision granting habeas relief to a felony murder defendant because his lawyer was absent for 10 minutes during trial testimony.
In a per curiam decision (PDF) on Monday, the Supreme Court ruled against Cory Donald, convicted of felony murder and armed robbery for the robbery and shooting death of a drug dealer.
Donald’s lawyer was not present during trial testimony about phone calls made by two co-defendants, and he didn’t object based on his theory that Donald did not participate in the crime, though he was at the scene. “I don’t have a dog in this race,” Donald’s lawyer had told the trial judge.
The Cincinnati-based 6th U.S. Circuit Court of Appeals held that the lawyer’s absence amounted to per se ineffective assistance of counsel, and state court decisions denying review were contrary to clearly established precedent. The 6th Circuit based its decision on a 1984 Supreme Court case,United States v. Cronic, which said courts may may presume unconstitutional prejudice if a defendant is denied counsel at a critical stage of trial.
The U.S. Supreme Court disagreed, saying it has never addressed whether the rule announced inCronic applies to a lawyer’s absence during testimony about co-defendants’ actions.
“To be sure, the 6th Circuit considered the testimony relevant to Donald because he was being prosecuted on an aiding-and-abetting theory for felony murder,” the Supreme Court said. “But Donald’s position was that he had nothing to do with the planning among his co-defendants. And none of our holdings address counsel’s absence during testimony that is irrelevant within the defendant’s own theory of the case.”
The Supreme Court added that “just last term we warned the 6th Circuit” that state courts have broad discretion when the precise contours of a right remain unclear.
In a blog post at the Volokh Conspiracy, Case Western University law professor Jonathan Adler says the decision continues a trend of 6th Circuit reversals in a criminal context. The 6th Circuit, Adler asserts, “has developed a reputation as the new 9th” Circuit.
x x x."
