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Please Hold, Your Approximate Wait Time is...25 Years to Life.

Here is the first of hopefully many posts by my good friend, Holmes.

On January 7, 2008, in the case Shawano County Sheriff v. Van Patten (07-212), the U.S. Supreme Court issued a per curiam opinion overturning a decision of the 7th Circuit Court of appeal that Joseph Van Patten did not receive effective representation of counsel when he pleaded no contest to first degree reckless homicide and was sentenced to 25 years imprisonment. Van Patten?s attorney participated in the plea proceeding . . . by tele-conference, communicating with the court over speakerphone. A 7th Circuit panel had ruled unanimously that Van Patten had been denied "even a warm body" when his lawyer literally phoned it in, referring to the quality of representation offered as "perfunctory."

Following the 7th Circuit?s decision, Wisconsin officials requested Supreme Court intervention and maintained that Van Patten?s case did not rise to the level allowing federal review under the Antiterrorism and Effective Death Penalty Act. The act requires federal court review when some action taken by a state court runs contrary to a specific Supreme Court precedent. In a concurring opinion, Justice Stevens noted that no previous Supreme Court precedent established that a defense attorney must in fact be present in open court to provide adequate representation ? a situation he attributed to a "drafting error" in another case, United States v. Cronic.

While Cronic is controlling, at the time it was decided, no member of the Court could have "contemplated representation by attorneys who were not present in the flesh . . ." This "explains the author's failure to add the words 'in open court' after the word 'present.'" At the time Cronic was decided (1984), teleconferencing technology was not generally available for an attorney to "phone it in." (Test case, anyone? "Hi, ACLU? I?m calling about my 6th Amendment right to effective counsel. Does that include him being in the room when I get screwed with my pants on by the courts?")

However, the Court went beyond consideration of the statute?s requirements. While not ruling on the merits of the case, it did note "even if we agree with Van Patten that a lawyer physically present will tend to perform better than one on the phone, it does not necessarily follow that mere phone contact amounted to total absence" of effective counsel.

So . . . not being present doesn?t mean you?re totally absent?! Maybe for phone sex, but in a criminal proceeding? On a related question, we asked Van Patten?s attorney (by phone, of course) if absence makes the heart grow fonder. He stated emphatically that it does not.

It should come as some small consolation to us all that the State of Wisconsin has gone on record, stating that it "does not condone defense counsel assisting clients by telephone at court proceedings." In a related matter, Van Patten has filed a motion to allow him to phone in his jail time.

Full post as published by Supreme Dicta on January 09, 2008 (boomark / email).