Wright v. Van Patten...and the Strickland Test

Here is an other case in which the Court granted cert. and then issued a per curiam (unsigned) decision on the same day that cert. was granted. When this is done the Court usually feels that the answer is so clear under its precedents that oral argument won't help.

But in this case regarding the 6th Amendment issue of ineffective assistance of counsel, we have technicality raised to new levels. Linda Greenhouse, Supreme Court reporter for the NY Times, has characterized the Roberts Court as being very concerned with technical minutiae of law. Let's see, through a brief retelling of the facts of this case how this characterization fits our case.

Van Patten's Crime, Sentence and Appeals

Van Patten (from WI) was charged with first-degree intentional homicide but pleaded no contest to a reduced charge of reckless homicide. His counsel was not physically present when the plea was worked out; he participated by speaker phone. Van Patten was sentenced to 25 years in WI state court. After the conviction, Van Patten retained other counsel and argued in the WI Court of Appeals that his right to counsel under the 6th Amendment had been violated because of his lawyer's absence from the plea hearing. The case, friends, is as simple and complex as that. Does the lawyer's physical absence from a plea hearing (at which the defendant received the maximum sentence possible) constitute a violation of defendant's federal constitutional rights to adequate trial counsel?

No US Supreme Court case had actually answered that question and so law, as it often has to do, reasons from analogies. Analogies, in law, are known as other cases. Thus, the state Court of Appeals looked at a 1984 US Supreme Court case (Strickland, 466 US 668) and concluded that in order to show "manifest injustice" (the standard under state law), Van Patten had to demonstrate two things: (1) that his attorney's performance was deficient; and (2) that this deficiency led to prejudice to the defendant. The state appeals court concluded that Van Patten didn't demonstrate this. The WI Supreme Court declined to review the case.

So, Van Patten decided to appeal his case further. You can then make what is known as a "collateral" appeal by arguing that the federal habeas corpus statute, 28 USC sec. 2254, applies to you. The relevant portion of that law says that a defendant can have his conviction reversed or a new trial ordered if he can show that his conviction violated "clearly established Federal law." Well, the US District Court denied Van Patten any relief but the Seven Circuit Court of Appeals waded into the thicket and said that indeed Van Patten had a point. But they decided that Van Patten had a point not under Strickland but under another 1984 US Supreme Court case, US v. Cronic (466 US 648). Under Cronic, the Appeals Court decided that there are some circumstances where a defendant doesn't have to show prejudice; some actions in the courtroom are so inherently prejudicial that they require a new trial. The 7th Circuit concluded that Van Patten's lawyer's doing the plea bargain over the phone was an instance so clearly prejudicial to him that the Strickland factors wouldn't apply.

To the US Supreme Court

After the 7th Circuit so concluded, the US Supreme Court handed down the Musladin decision in Dec. 2006, which concluded that courtroom conduct of independent actors (i.e., not people who represented the state--such as police officers) was not inherently prejudicial against the defendant (the issue in Musladin had to do with whether the victim's family's wearing of pictures of the victim unduly prejudiced the defendant's right to a fair trial). The Supreme Court therefore remanded the Van Patten case to the 7th Circuit, asking it to take cognizance of their ruling in Musladin. But the 7th Circuit reaffirmed its decision, stating that the "clearly established federal law" that applied to Van Patten was in the Cronic case. But the state didn't like the decision on remand and appealed it again to the US Supreme Court. In this way the Van Patten case made it back to the Supreme Court. Thus, when the Court granted cert. and made its decision on 1/7/08, it was dealing with the case a second time.

The Supreme Court's Decision

Now, return to the thought of hyper technicality, which began this essay. When the Supreme Court received the case this month, it was actually not going to answer the question that everyone in the world wanted it to answer--whether a plea agreement by phone violated a defendant's constitutional right to effective assistance of counsel and a fair trial. Instead, the Court decided to handle a much more narrow issue-- whether the original state court of appeals decision unreasonably interpreted federal law when it applied the Stirckland test to Van Patten's claim of whether he had been adequately represented by counsel.

The Court concluded that none of its precedents actually dealt with the "novel" question of conference calls at plea bargain hearings. Since there was no "direct hit" or, as we lawyers say, no case that dealt with the issue "on all fours," and since there was no indication that Cronic should replace Strickland in this novel factual context, it was too much for the 7th Circuit to hold that participation by speaker phone should be treated as a "complete denial of counsel" which would trigger Cronic.

Thus, the final disposition of the case was that the 7th Circuit's decision was reversed, the WI Court of Appeals decision was upheld and that Van Patten, therefore, has a bundle of time still to serve in WI state prison. But, the Court pointedly said that the "consideration of the merits of telephone practice, however, is for another day." Since there was no clearly established law contrary to the state court's conclusion, no collateral relief is justified.

So, we still don't know the answer to the burning question--whether a telephone conference at a plea hearing constitutes ineffective assistance of counsel. We do know, however, that a WI court's holding that the Strickland standard applied to determine the answer was not out of line. Whoopee.

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