explaining that Strickland “intended to make clear that ‘[a]ctual or constructive denial of the assistance of counsel altogether,’ is not subject to the kind of prejudice analysis that is appropriate in determining whether the quality of a lawyer’s performance itself has been constitutionally ineffective” (alteration in Perry) (quoting Strickland, 466 U.S. at 692, 104 S.Ct. at 2063-64, 80 L.Ed.2d 674)
How later courts described this case
- explaining that Strickland “intended to make clear that ‘[a]ctual or constructive denial of the assistance of counsel altogether,’ is not subject to the kind of prejudice analysis that is appropriate in determining whether the quality of a lawyer’s performance itself has been constitutionally ineffective” (alteration in Perry) (quoting Strickland, 466 U.S. at 692, 104 S.Ct. at 2063-64, 80 L.Ed.2d 674)
- holding "it is entirely appropriate for a trial judge to decide, after listening to the direct examination of any witness, whether the defendant or a nondefendant, that cross-examination is more likely to elicit truthful responses if it goes forward without allowing the witness an opportunity to consult with third parties, including his or her lawyer"
- recognizing that "[it is a common practice for a judge to instruct a witness not to discuss his or her testimony with third parties until the trial is completed" and "[s]uch nondiscussion orders are a corollary of the broader rule that witnesses may be sequestered"
- stating that the Supreme Court has “expressly noted that direct governmental interference with the right to counsel is a different matter” -with regard to whether prejudice must be shown, and collecting representative cases where prejudice need not be proved
Written by the judges who cited it.
Later courts went against this
Declined to follow by State v. Mundon, 121 Haw. 339 (2009)
Thus, we decline to follow the federal approach set forth by the Perry majority and, instead, adopt the dissent’s proposition that “any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial,” violates a criminal defendant’s state constitutional right to counsel.
Distinguished
Distinguished by Puckett v. State, 879 So. 2d 920 (2004)
Puckett asserts that because the recess in the instant case occurred in the middle of cross-examination, the meaning of Perry is distinguishable.
The opinion
Justice Kennedy,
concurring in part.
I join Parts I and III of the Court’s opinion and the holding that petitioner was not denied his constitutional right to assistance of counsel. In view of our ruling, it is quite unnecessary to discuss whether prejudice must be shown when the right to counsel is denied. I would not address that issue, and so I decline to join Part II of the Court’s opinion.