Counsel Who Missed Portions Of Trial Not Constitutionally Ineffective

A divided United States Court of Appeals for the District of Columbia Circuit affirmed a conviction in a criminal case where lead defense counsel took ill mid-trial and was replaced by secondary counsel who had not attended all the proceedings.

Circuit Judge Brown for the majority

Despite being acquitted on a number of serious offenses—including counts of aiding and abetting murder, assault with intent to murder, and RICO and narcotics conspiracy—Wilson asserts Proctor’s representation fell below the minimum threshold of professional competence required by the Sixth Amendment…

Mid-trial substitution may prove disruptive. Even following a continuance, a substitute defense counsel will sometimes be disadvantaged by his absence from earlier proceedings. Indeed, best practice may favor allowing for a severance or mistrial where the prolonged illness or absence of a defense counsel would require substitution. But “best practice” is not the standard for constitutional deficiency. Nor does every disadvantage to the defense’s representation, however meagre, suffice to “infect[] [an] entire trial with error of constitutional dimensions.”

As to the majority’s view of the dissent

Imaginative theorizing added to rampant conjecture augmented by inapposite examples does not a convincing case for Cronic’s categorical rule make. Prudence counsels only greater caution when called on to find constitutional inadequacy as a per se matter, particularly where the state of the record requires speculation as to deficiencies that may or may not have existed. In this case, even the particular days Proctor missed prior to the substitution is not beyond contention. See generally Government’s Brief at 25 & n.10, United States v. Bell, No. 08-3037 (June 30, 2014) (noting that Proctor’s estimate that he missed one-third of the trial was neither expressly endorsed by the court nor confirmed below).

If any break in the continuity of counsel at trial were sufficient to create a presumption of prejudice, even where a different attorney for the accused was present at critical stages missed by the substitute lead counsel, the Sixth Amendment’s guarantee would resemble less the assurance of “effective” representation and instead demand something closer to a “perfect” defense. While perfection may seem a laudable goal, this latter threshold of performance is not demanded by our Constitution.

The court also rejected asserted Brady violations.

Circuit Judge Wilkins would reverse

Because of his administrative duties in this case, as well as his work on his other cases, [secondary counsel] Proctor was not present in court for about a third of trial before Wicks’s illness. Proctor missed the testimony of several witnesses who were critical to the prosecution’s case against Wilson, including Torran Scott and Renee Cottingham, two of the four witnesses who inculpated Wilson in the murders of Sabrina Bradley and Ronnie Middleton. See Trial Tr. at 11, United States v. Ball, No. 05-cr-100 (D.D.C. June 27, 2007), ECF No. 1040. Proctor was not in the courtroom to watch Scott tell the jury that Wilson had admitted involvement in the shooting, and that Wilson asked Scott to corroborate his alibi. Nor did Proctor see Scott admit on cross examination that he failed to inculpate Wilson until four years after the murders and two days before pleading guilty as part of a deal with the government. Proctor was not present when Cottingham told the jury that Wilson confessed to her that he had committed the murders while she unbraided his hair one evening. Proctor did not see Wicks cross-examine Cottingham on her belief that Wilson was involved in her brother’s homicide, giving her strong incentive to implicate him in Middleton and Bradley’s murders. Scott and Cottingham’s testimony, along with the testimony of two co-conspirators who testified in exchange for government leniency, was the only evidence the government presented to connect Wilson with those murders…

When Wicks left Wilson’s side, her accumulated knowledge of the case left with her. In particular, Wilson lost: (1) Wicks’s tactical and strategic consultations with Wilson about the trial, (2) Wicks’s appraisal of witness demeanor, and (3) Wicks’s assessment of the jury’s reaction to the witness testimony and physical evidence introduced at trial. In denying Wilson a mistrial and forcing him to continue to verdict with the assistance of a lawyer who had missed so much and who would not have this accumulated knowledge, the District Court deprived Wilson of his right to an attorney with the knowledge necessary to challenge adequately the government’s evidence.

Circuit Judge Henderson joined the majority. (Mike Frisch)