According to the United States Court of Appeals for the 7th Circuit in Van Patten v. Deppisch, 04-1276 (Jan. 24), “No”. This is a case where the lawyer literally “phoned it in”, appearing at a client’s sentencing for reckless homicide via speakerphone. The defendant was given a maximum 25 year sentence by a Wisconsin state judge and subsequently appealed, claiming ineffective assistance of counsel. The conviction was upheld all the way up to the Wisconsin state Supreme Court, but was succesfully challenged on a federal habeas corpus petition.

Incredibly, the state courts analyzed the case and found it indeed ineffective assistance, but ruled it “harmless error”. The 7th Circuit held that the state courts had used an improper analysis, and instead relied upon a line of cases holding that a defendant has a right to have his lawyer present during all critical stages of the proceedings. Sentencing is certainly critical, and the court correctly pointed out that this was not “presence”.

Writing for a unanimous three-judge 7th Circuit panel, Judge Terence T. Evans noted:

… the defendant could not turn to his lawyer for private legal advice, to clear up misunderstandings, to seek reassurance, or to discuss any last-minute misgivings. Listening over an audio connection, counsel could not detect and respond to cues from his client’s demeanor that might have indicated he did not understand certain aspects of the proceeding, or that he was changing his mind.

The court also asked in a footnote: “What might we be asked to accept next? Offshore defense-attorney call centers? Letting the defendant confer with counsel via BlackBerry?”

Not the best way to showcase technology in the courtroom.

Read the full story here.

RP

This entry was posted on Thursday, February 16th, 2006 at 10:57 pm and is filed under News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.