Perry v. Leeke

Justice Marshall,

with whom

Justice Brennan and Justice Blackmun join, dissenting.

In Geders v. United States, 425 U. S. 80 (1976), we held .unanimously that a trial judge’s order barring a defendant from conferring with his attorney during an overnight recess violated the defendant’s Sixth Amendment right to the assistance of counsel. The majority holds today that when a recess is “short,” unlike the “long recess” in Geders , a defendant has no such constitutional right to confer with his attorney. Ante, at 284. Because this distinction has no constitutional or logical grounding, and rests on a recondite understanding of the role of counsel in our adversary system, I dissent.

I

Contrary to the majority’s holding, the Sixth Amendment forbids “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.” Geders, supra, at 92 (Marshall, J., concurring) (emphasis in original). This view is hardly novel; on the contrary, every Court of Appeals to consider this issue since Geders , including the en banc Fourth Circuit in this case, 832 F. 2d 837, 839 (1987), has concluded that a bar on *286 attorney-defendant contact, even during a brief recess, is impermissible if objected to by counsel. See Sanders v. Lane, 861 F. 2d 1033 , 1039 . (CA7 1988) (collecting cases). With very few exceptions, the state appellate courts that have addressed this issue have agreed. The majority attempts to sidestep this point, stating that the “[f]ederal and state courts since Geders have expressed varying views on the constitutionality of orders barring a criminal defendant’s access to his or her attorney during a trial recess.” Ante, at 277, n. 2 (emphasis added). To the extent there has been disagreement in the lower courts, however, it has been limited to the separate question whether a Sixth Amendment violation predicated on a bar order should be subject to a prejudice or harmless-error analysis — the sole question on which the Court granted certiorari in this case.

In concluding that bar orders violate the Sixth Amendment, the lower courts have faithfully reflected this Court’s long-expressed view that “the Assistance of Counsel” guaranteed under the Constitution perforce includes the defendant’s right to confer with counsel about all aspects of his case:

“‘The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. ... [A defendant] is unfamiliar with the rules of evidence. . . .He lacks both the skill and knowledge adequately to prepare his defense, even though he [may] have a perfect one. He requires the guiding hand of counsel at every step of the proceedings against him.’” Powell v. Alabama, 287 U. S. 45, 68-69 (1932), quoted in Geders, supra, at 88-89 .

See also Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938); Gideon v. Wainwright, 372 U. S. 335, 343-345 (1963); United States v. Wade, 388 U. S. 218, 224 (1967); Argersinger v. Hamlin, 407 U. S. 25, 31-36 (1972); United States v. Cronic, 466 U. S. 648, 659 (1984). This long line of cases, which stands for the proposition that a defendant has the right to the aid of counsel at each critical stage of the adversary proc *287 ess, is conspicuously absent from the majority’s opinion. The omission of this constitutional legacy is particularly glaring given that “[i]t is difficult to perceive a more critical stage . . . than the taking of evidence on the defendant’s guilt.” Green v. Arn, 809 F. 2d 1257, 1263 (CA6 1987). Instead, after an obligatory nod of the head to the fundamental nature of the right to counsel, the majority strings together several unstated assumptions and unsupported assertions and concludes that attorney-defendant discussions during short trial recesses may be completely barred because they might dis-serve the trial’s truth-seeking function. The majority’s conclusory approach ill befits the important rights at stake in this case.

A

The majority begins its analysis by stating that a defendant “has no constitutional right to consult with his lawyer while he is testifying.” Ante, at 281 (emphasis added). This truism is beside the point. Neither Perry nor his counsel sought to have Perry’s “testimony interrupted in order to give him the benefit of counsel’s advice,” ibid.; nor has Perry suggested that he had a constitutional right to the interruption. This case instead involves the separate question whether a defendant has a right to talk to his lawyer after the trial judge has called a recess for some reason independent of the lawyer’s desire to talk to the defendant or the defendant’s desire to talk to his lawyer.

The majority further blurs the real issue in this case by describing the practice of not allowing defendants or lawyers to interrupt the defendant’s testimony as a corollary of the “broader rule that witnesses may be sequestered.” Ibid. The majority even provides a lengthy footnote which contains citations to several Court of Appeals cases discussing the purposes of witness sequestration. Ante, at 281, n. 4. The flaw in the majority’s logic is that sequestration rules are inapplicable to defendants. Defendants, as the majority later acknowledges, enjoy a constitutional right under *288 the Sixth Amendment to confront the witnesses against them. Ante, at 282; see also Geders, 425 U. S., at 88 .

The majority’s false premise — that the issue is whether a defendant has the right to consult with his lawyer “while he is testifying” — naturally conjures up a greater-includes-the-lesser argument: Perry had no right to interrupt his testimony; he therefore had no reasonable expectation that he would be permitted to confer with counsel during any interruption provided by the trial judge. Yet, we rejected this facile argument in Geders . There, the trial judge sought to justify his bar order on the ground that it was merely an “accident” that he had called a recess during the defendant’s testimony. Geders, 425 U. S., at 83, n. 1 . In dismissing this notion, we did not frame the inquiry as whether recesses normally occur during the course of a defendant’s testimony. Instead, we asked whether consultations normally occur during recesses called for some independent reason by the trial judge. Id., at 88 ; see also Sanders v. Lane, supra, at 1036, n. 1 ; 832 F. 2d, at 849, n. 4 (Winter, C. J., dissenting).

To the extent the majority recognizes that the dispositive fact is not a defendant’s right to interrupt, but rather the legitimacy of his expectation that he may speak with his lawyer during such an interruption, it does so by grounding its holding on a general “rul[e]” forbidding attorney-witness contact between a witness’ direct and cross-examination. Ante, at 282. This “rule,” we are told, is based on the view “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.” Ibid. This “rule” is applicable to a defendant, the majority contends, because when a defendant takes the stand, the rules applicable to nonparty witnesses are “generally applicable to him as well.” Ibid.

The defects in this line of reasoning are manifold. In the first place, the majority cites no authority whatsoever for its *289 “rule.” Even if such authority exists, the presence of contrary authority undercuts any suggestion that settled practice renders unreasonable a defendant’s expectation that he will be able to speak with his lawyer during a brief recess. 1 One need look no further than the facts of this case to see that the majority’s “rule” is often honored in the breach. The trial judge declared at least three recesses while witnesses for the State were testifying, Tr. 213, 274, 517; two of these recesses came at the end of direct testimony but before cross-examination had begun. Id., at 213, 517. During none of these recesses did the trial judge issue a bar order. The State’s witnesses thus were free to consult with anyone, including the prosecutors, during these breaks. Similarly, in nearly every case cited by the majority in its collection of post-Geders cases, ante, at 277-279, n. 2, there is no indication that witnesses for the State were barred from speaking with the prosecutor or their attorneys during trial recesses.

Even if the majority is correct that trial courts routinely bar attorney-witness contact during recesses between direct and cross-examination, its lumping together of defendants with all other witnesses would still be flawed, for it ignores the pivotal fact that the Sixth Amendment accords defendants constitutional rights above and beyond those accorded witnesses generally. 2 We recognized the defendant’s unique *290 status in Geders : “the petitioner was not simply a witness; he was also the defendant. ... A nonparty witness ordinarily has little, other than his own testimony, to discuss with trial counsel; a defendant in a criminal case must often consult with his attorney during the trial.” 425 U. S., at 88 ; see also United States v. DiLapi, 651 F. 2d 140, 148 (CA2 1981) (“The fact that other witnesses were cautioned not to speak to anyone during recesses does not justify a prohibition upon defendant-lawyer conversations”). 3 The majority, in its haste, today overlooks this axiomatic distinction. 4

B

The most troubling aspect of the majority’s opinion, however, is its assertion that allowing a defendant to speak with his attorney during a “short” recess between direct and cross-examination invariably will retard the truth-seeking function of the trial. Although this notion is described as an “empirical predicate” of our adversary system, ante, at 282, the majority provides not a shred of evidence to support it. Furthermore, the majority fails to acknowledge that, in *291 Geders , we never equated the attorney-client contact which we held constitutionally mandated with the evasion of truth.

Central to our Sixth Amendment doctrine is the understanding that legal representation for the defendant at every critical stage of the adversary process enhances the discovery of truth because it better enables the defendant to put the State to its proof. As the author of today’s majority opinion wrote for the Court earlier this Term:

“The paramount importance of vigorous representation follows from the nature of our adversarial system of justice. This system is premised on the well-tested principle that truth — as well as fairness — is ‘best discovered by powerful statements on both sides of the question.’ Absent representation, however, it is unlikely that a criminal defendant will be able adequately to test the government’s case, for, as Justice Sutherland wrote in Powell v. Alabama, 287 U. S. 45 (1932), ‘[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law.’ Id., at 69 .” Penson v. Ohio, ante, at 84 (citations omitted).

Nowhere have we suggested that the Sixth Amendment right to counsel turns on what the defendant and his attorney discuss or at what point during a trial their discussion takes place. See generally Strickland v. Washington, 466 U. S. 668, 684-686 (1984); United States v. Cronic, 466 U. S., at 653-657 ; Polk County v. Dodson, 454 U. S. 312, 318-319 (1981); Herring v. New York, 422 U. S. 853, 857-858, 862 (1975).

With this understanding of the role of counsel in mind, it cannot persuasively be argued that the discovery of truth will be impeded if a defendant “regain[s]... a sense of strategy” during a trial recess. Ante, at 282. If that were so, a bar order issued during a 17-hour overnight recess should be sustained. Indeed, if the argument were taken to its logical extreme, a bar on any attorney-defendant contact, even before trial, would be justifiable. Surely a prosecutor would have *292 greater success “punching] holes,” ibid., in a defendant’s testimony under such circumstances. Indeed, the prosecutor would then be assured that the defendant has not had “an opportunity to regroup and regain a poise . . . that the unaided witness [does] not possess.” Ibid. In other words, the prosecutor would be more likely to face the punch-drunk witness who the majority thinks contributes to the search for truth. 5

The majority’s fears about the deleterious effects of attorney-defendant contact during trial recesses are vastly overstated. Vigorous cross-examination is certainly indispensable in discerning the trustworthiness of testimony, but I would think that a few soothing words from counsel to the agitated or nervous defendant facing the awesome power of the State might increase the likelihood that the defendant will state the truth on cross-examination. The value of counsel in calming such a defendant would seem especially apparent in this case given that Perry, who the majority describes as “mildly retarded,” ante, at' 274, was on trial for his life. 6 *293 Furthermore, to remind a defendant that certain cross-examination questions might implicate his right against self-incrimination or relate to previously excluded evidence, or to caution a defendant to mind his demeanor at all times, is merely to brace the defendant for the “legal engine” steaming his way. Ante, at 283, n. 7, quoting 5 J. Wigmore, Evidence § 1367 (J. Chadbourn rev. 1974). I cannot accept the view that discussions of this sort necessarily threaten the trial’s truth-seeking function. To the extent that they might in some circumstances, it is important to remember that truth would not be sacrificed in the name of some obscure principle — a constitutional command hangs in the balance. See Geders, 425 U. S., at 91 .

Although the majority appears to believe that attorney-defendant recess discussions on any. subject are inconsistent with “the discovery of truth,” ante, at 282, it finds discussions regarding testimony to be particularly pernicious. This distinction finds no support in our Sixth Amendment cases. But even if it did, the majority’s logic on this point would remain inscrutable. The majority distinguishes “long” recesses, such as the 17-hour recess at issue in Geders , from the “short” 15-minute recess in this case on the ground that it is “appropriate to presume,” or, alternatively, that there is “a *294 virtual certainty,” ante, at 283, 284, that any discussion during a 15-minute recess will focus exclusively on the defendant’s upcoming testimony. Once again, the majority reasons by assertion; it offers no legal or empirical authority to buttress this proposition. While this assertion might have some validity with respect to nonparty witnesses, who might have little else to discuss with the parties’ attorneys, see Geders, supra, at 88 , it defies common sense to argue that attorney-defendant conversations regarding “the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain,” ante, at 284, cannot, or do not, take place during relatively brief recesses.

For example, while a defendant is on the stand during direct examination, he may remember the name or address of a witness, or the location of physical evidence, which would be helpful to his defense. It would take mere seconds to convey this information to counsel. As a matter of sound trial strategy, defense counsel might believe that this new witness or evidence would have the most impact if presented directly after the defendant concluded his testimony. But under the majority’s approach, defense counsel would not even learn about this witness or evidence until the defendant steps down from the stand. Alternatively, the defendant might be so discouraged by his testimony on direct examination as to conclude that he should attempt plea negotiations with the prosecution immediately, or accept an outstanding plea bargain offer. It need only take seconds for him to convey this to his lawyer, particularly if they had previously discussed the advisability of pleading guilty. This opportunity might be forever lost, however, if a bar order issues and the prosecution conducts a successful cross-examination. These are just a few examples of the tactical exchanges which defendants and their attorneys might have midtrial; there is no reason to believe such exchanges predominantly occur during overnight recesses rather than during brief recesses. Indeed, an overnight recess “may entail a deprivation of little more than the *295 fifteen minutes at stake here because many attorneys will devote the vast majority of such an extended break to preparation for the next day of trial, while sending the client home to sleep, or back to jail.” 832 F. 2d, at 849 (Winter, C. J., dissenting). 7

Yet another perverse aspect of the majority’s opinion is its recognition that a defendant has a “constitutional right” to discuss those “matters that go beyond the content of the defendant’s own testimony.” Ante, at 284. Having recognized this right, one would expect the majority to require trial judges to permit attorney-defendant contact during all recesses, no matter how brief, so long as trial testimony is not discussed. Instead, the majority merely suggests in a footnote that trial judges “may permit consultation between counsel and defendant during such a recess, but forbid discussion of ongoing testimony.” Ante, at 284, n. 8 (emphasis added). If attorney-client discussions regarding matters other than testimony have constitutional stature, they surely deserve more protection than the majority offers today. It may well be that Perry and his counsel would have discussed “matters that [went] beyond the content of [Perry’s] own testimony,” ante, at 284; Perry was, however, denied this constitutional right. In allowing trial judges to ban all brief recess consultations, even those including or limited to discussions regarding nontestimonial matters, the majority needlessly fires grapeshot where, even under its own reasoning, a single bullet would have sufficed. 8

*296 II

Today’s decision is regrettable in two further respects. In practical terms, the majority leaves the trial judge “to guess at whether she has committed a constitutional violation” when she issues a recess bar order. Sanders v. Lane, 861 F. 2d, at 1037 . Is it “appropriate to presume” that a 30-minute recess will involve a discussion of nontestimonial matters? How about a lunch break? Does it matter that defense counsel has promised only to discuss nontestimonial matters with his client? Does the majority’s rationale encompass recesses during the defendant’s direct or redirect testimony, or just those after the direct examination has concluded? These are not abstract inquiries, but the sort that have arisen, and will continue to arise, on a routine basis. See id., at 1036-1037 (collecting cases). By not even providing a practical framework in which to answer these questions, the majority ensures that defendants, even those in adjoining courtrooms, will be subject to inconsistent practices. Such inconsistency is untenable when a critical constitutional right is at stake.

The majority’s standardless approach guarantees a new bout of appellate litigation during which lower courts ineluctably will issue conflicting decisions as to the point at which a “short” recess bar order becomes a constitutionally impermissible “long” recess bar order. Given that “clarification is *297 feasible,” United States v. Ross, 456 U. S. 798, 804 (1982), and indisputably desirable in this area of law, the majority’s willingness to tolerate such ambiguity is dismaying. See United States v. Allen, 542 F. 2d 630, 633 (CA4 1976). The majority purports to draw a “line of constitutional dimension,” ante, at 280, but it is one which lower courts, faced with a continuum of recess possibilities, will find impossible to discern.

Finally, today’s decision marks a lapse in this Court’s commitment to fundamental fairness for criminal defendants. The majority wholly ignores the trial judge’s uneven imposition of bar orders. No bar order issued when recesses were called during testimony by the State’s witnesses, but when a recess was called at the conclusion of Perry’s direct testimony, the trial judge suddenly became concerned that witnesses might be “cured or assisted or helped approaching. . . cross examination.” App. 4-5. Perry’s counsel objected that Perry was being unfairly singled out, but the trial judge responded that he felt compelled to act as he did to ensure, of all things, “fairness to the state.” App. 5. This peculiar sense of obligation meant that Perry was removed from the courtroom and held incommunicado for the duration of the recess. 9

Needless to say, the due process concerns underpinning the Sixth Amendment right to counsel are designed to ensure a fair trial for the defendant, not the State. See generally Strickland v. Washington, 466 U. S., at 684-685 ; United *298 States v. Cronic, 466 U. S., at 653-656 ; United States v. Morrison, 449 U. S. 361, 364 (1981). By ensuring a defendant’s right to have counsel, which includes the concomitant right to communicate with counsel at every critical stage of the proceedings, see Powell v. Alabama, 287 U. S. 45, 68-69 (1932), the Constitution seeks “to minimize the imbalance in the adversary system.” United States v. Ash, 413 U. S. 300, 309 , (1973). The majority twice disserves this noble goal — by isolating the defendant at a time when counsel’s assistance is perhaps most needed, and by ignoring the stark unfairness of according prosecution witnesses the very prerogatives denied the defendant. The Constitution does not permit this new restriction on the Sixth Amendment right to counsel. I dissent.

See, e. g., 23 C. J. S., Criminal Law § 1025 (1961); United States ex rel. Lovinger v. Circuit Court for the 19th Judicial District, 652 F. Supp. 1336, 1346 (ND Ill. 1987), aff’d, 845 F. 2d 739 (CA7 1988); Griffin v. State, 383 So. 2d 873, 878-879 (Ala. Crim. App. 1980); People v. Pendleton, 75 Ill. App. 3d 580, 594-595 , 394 N. E. 2d 496 , 506-507 (1979); cf. United States v. Allen, 542 F. 2d 630, 633, n. 1 (CA4 1976) (“While the sequestering of witnesses is of ancient origin the practice has never been universal, which suggests that the danger of influencing witnesses feared so much by some is not at all feared by others”).

Likewise, the majority’s equation of a defendant’s discussions with his attorney with a defendant’s discussions with “third parties,” ante, at 282, seriously misapprehends the nature of Sixth Amendment rights.

Cf. Rock v. Arkansas, 483 U. S. 44, 57-58 , and n. 15 (1987); Glasser v. United States, 315 U. S. 60, 71 (1942). The trial judge did at one point recognize that defendant Perry was not like the other witnesses. The significance of this distinction escaped him, however, for he justified the bar order imposed on Perry in part on the ground that “no one is on trial but Mr. Perry .... The 6th Amendment rights apply only to one who is on trial.” App. 5. This reasoning stands the Sixth Amendment on its head.

The majority errs, furthermore, in assuming, ante, at 282, that defendants are subject to the same rules of cross-examination as nonparty witnesses. See generally E. Cleary, McCormick on Evidence §§21-26 (3d. ed. 1984) (discussing different views on permissible scope of cross-examination of defendants and nonparty witnesses); §§ 41-44 (discussing different subjects on which defendants and nonparty witnesses may be impeached); §§ 130-140 (discussing different ways in which defendants and nonparty witnesses may invoke their self-incrimination rights while testifying); compare Fed. Rule Evid. 404(a)(1) (character evidence of the accused) with Fed. Rule Evid. 404(a)(3) (character evidence of a witness).

The majority claims that its decision does not “res[t] on an assumption that trial counsel will engage in unethical coaching. ” Ante, at 281. Nonetheless, I am inclined to believe that the majority’s fears that the defendant will “regain ... a sense of strategy” are motivated, at least in part, by an underlying suspicion that defense attorneys will fail to “respect the difference between assistance and improper influence.” Geders v. United States, 425 U. S. 80, 90, n. 3 (1976). “If our adversary system is to function according to design,” however, “we must assume that an attorney will observe his responsibilities to the legal system, as well as to his client.” Id., at 93 (Marshall, J., concurring); see also United States v. Allen, 542 F. 2d, at 633 (“[A]ll but very few lawyers take seriously their obligation as officers of the court and their proper role in the administration of justice. We think the probability of improper counseling, i. e., to lie or evade or distort the truth, is negligible in most cases”).

At trial, a psychologist and a psychiatrist testified regarding Perry’s personality and mental health. They stated that Perry, then 21 years old, had an I. Q. of 86, had encountered learning difficulties in school, had dropped out by the ninth grade, and had a childlike personality. They also testified that Perry often had difficulty distinguishing reality from fantasy *293 and that he suffered from “hysterical reaction,” an inability to cope with stressful situations. Tr. 1048-1049, 1053-1054, 1087, 1091-1098.

One can only assume that the treatment the trial judge accorded Perry during the 15-minute recess exacerbated his sense of fright or trepidation. After the trial judge sua sponte ordered the recess, Perry’s counsel attempted to confer with Perry in order to “answer his questions and also to make sure he understood his rights on cross-examination.” App. 7. The bar order, however, prevented him from doing so. During the recess, Perry was “taken out of the courtroom and placed in a very small room with no window and no other person, just one chair, enclosed in about a six by six room, with no one to talk to.” Tr. of Oral Arg. 8. Apparently, Perry’s counsel was not even allowed to explain to Perry why they were not permitted to confer during the recess. Treatment of this sort may well have had an adverse effect on Perry’s ability to retain his composure and testify truthfully on cross-examination.

Chief Judge Winter further observed:

“Few categories of constitutional error so undermine the adversary system as to warrant reversal without any proof of prejudice in a particular case. Denial of the assistance of counsel during a critical stage of criminal proceedings is one such category of error. Whether the deprivation of counsel spans an entire trial or but a fraction thereof, it renders suspect any result that is obtained.” 832 F. 2d, at 845 .

The majority assumes that it is possible to distinguish discussions regarding trial strategy from discussions regarding testimony. I am not so sure. Assume, for example, that counsel’s direct examination of the *296 defendant inadvertently elicits damaging information that can be effectively neutralized on redirect only if the defendant has the opportunity to explain his direct testimony to counsel. If a recess were called, the ensuing attorney-defendant discussion would seem to be as much about trial strategy as about upcoming testimony. Without a chance to speak with the defendant, counsel will be hampered in knowing whether redirect is even advisable. The majority’s failure to spell out the difference — if there is one — between testimonial and nontestimonial discussions may well “have a chilling effect on cautious attorneys, who might avoid giving advice on non-testimonial matters for fear of violating [a court order barring recess discussions of testimonial matters].” Mudd v. United States, 255 U. S. App. D. C. 78, 81, 798 F. 2d 1509, 1512 (1986).

In addition to the bar order issued against Perry, the trial judge ordered Perry’s wife not to speak with anyone during a recess called after she had completed her direct testimony on behalf of her husband. Defense counsel protested that “this was not done during the state’s case. It is only being done on the defendant’s case and it is being done without even the request of the state .... And I again urge the Court that it appears to show some bias on the part of the Court.” Tr. 904. The trial judge rebuffed the objection: “I don’t apologize for it. I’m in charge of this trial and I’m going to see that it remains fair to all parties.” Ibid, (emphasis added).