David Hudson v. Kurt Jones

MOORE, Circuit Judge,

dissenting.

A little more than seventy years ago Justice Sutherland eloquently described the irreducible right to counsel in a passage that time has only made more poignant:

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. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.

Powell v. Alabama, 287 U.S. 45, 68-69 , 53 S.Ct. 55 , 77 L.Ed. 158 (1932). I respectfully dissent from the majority opinion because I believe that the absence of counsel during as critical a stage of the trial as jury instruction or jury reinstruction presumptively prejudices the defendant by sharply undermining the reliability of the resulting trial. As enunciated in the recently decided French v. Jones, 332 F.3d 430 (6th Cir.2003), jury instruction is a critical stage of a criminal proceeding, and jury reinstruction is no less so, because both events materially shape the jurors’ understanding of the law that they must apply to determine the defendant’s guilt. The absence of counsel, even when the previously issued instructions are reread verbatim, impinges the validity of the trial because the defendant, rarely knowledgeable in the technical interstices of basic law, let alone the tangle of jury instruction, cannot respond without the help of counsel to whatever confusion, problem, or ambiguity sparks the jury to return to the court for advice.

Initially, I agree with the majority’s decision to reach the merits of Hudson’s claim raised pursuant to United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 , 80 *219 L.Ed.2d 657 (1984), although I would employ different reasoning, because I believe that Hudson did not procedurally default his Cronic claim, and even if he did, he had cause and prejudice to overcome any procedural default. First, there was no procedural default, because the reason asserted by the Michigan Court of Appeals and the Michigan Supreme Court for the default — the failure to comply with MCR 6.508(D)(3) — does not apply to direct appeals concluded before MCR 6.508(D)(3)’s effective date of October 1, 1989. MCR 6.508(D)(3) is not an adequate and independent state ground that forecloses federal review of Hudson’s Cronic claim because it was not effective either when Hudson filed or even when he completed his direct review. See Gonzales v. Elo, 233 F.3d 348, 353-54 (6th Cir.2000) (holding that MCR 6.508(D) cannot “serve as an adequate and independent state ground for the prisoner’s procedural default” when the prisoner “brought his direct appeal prior to the rule’s effective date of October 1,1989”). Aside from the inapplicability of MCR 6.508(D)(3), Hudson also did not procedurally default his Cronic claim because he raised the claim before the Michigan Court of Appeals and the Michigan Supreme Court on direct appeal. Second, even if Hudson did procedurally default his claim, cause and prejudice existed to excuse the default because Hudson’s direct appeal attorney — the same attorney whose absence during jury reinstruction gives rise to Hudson’s Cronic claim — was constitutionally ineffective in failing to raise on appeal his absence during a critical stage of the trial.

Turning to the majority’s discussion of the merits, I find myself unable to concur with its result or its reasoning, because the unexcused absence of defense attorney Young during the jury reinstruction deprives Hudson of his constitutional right to counsel during a critical stage of his trial. It is presumed that Young’s constitutionally deficient representation would prejudice Hudson if Young “was either totally absent, or prevented from assisting [Hudson] during a critical stage of the proceeding.” Cronic, 466 U.S. at 659 n. 25, 104 S.Ct. 2039 (1984). There is no doubt that Young was absent during the jury reinstruction, so the central inquiry is whether jury rein-struction constitutes a critical stage of a proceeding.

The instruction of the jury is a critical stage of a trial no matter whether the judge is reading the jury instruction for the first time, supplementing the original instructions with new instructions, or repeating the initial instructions. The result reached by the majority opinion is not mandated by precedent, and it threatens to undermine defendants’ Sixth Amendment rights. We recently held in French v. Jones, 332 F.3d 430 (6th Cir.2003), that prejudice was presumed when a state trial judge gave a supplemental instruction to a deadlocked jury in the absence of trial counsel. Id. at 438 . Nothing in the opinion limited that holding to situations in which the judge imparts new information to the jury. Quite the opposite, we concluded that Cronic applied because, “French’s attorneys did not have an opportunity to respond to the jury’s note nor were they present when the trial judge gave the supplemental instruction. The uncertainty of the prejudice French suffered because he was not represented by counsel during this critical stage of his trial makes the outcome of his trial unreliable.” Id. (emphasis added). Thus, what drives the unreliability of jury reinstruction in the absence of counsel is not only counsel’s inability to prevent the dissemination of erroneous new instructions, but also counsel’s incapacity to respond to whatever motivated the jury to return to the court with some confusion or misun *220 derstanding and to contribute to the resolution of that problem.

While the literal re-reading of the initial jury instruction may appear to be harmless in the sense that it imparts no new information to the jury, the jury’s desire for reinstruction or supplemental instruction is far from inconsequential. A jury asks for additional instructions or desires to hear the original instructions again because its members are confused, uncertain, internally quarreling, or because they failed to understand the instructions the first time, possibly because of an error or problem with the original instructions. When the jury returns to the court without a verdict, counsel, if present, can assess whether a reinstruction is appropriate or whether supplemental instructions or clarifications are needed. Just as delivering a faulty supplemental instruction to the jury can prejudice the defendant’s trial, the failure to impart to the jury a clarifying instruction because of a problem with the initial instruction can be equally damaging. Additionally, counsel’s presence is needed to protect the defendant’s rights should the trial court reinstruct the jury with the original instructions after one party has complained that the original instructions were defective. Here, Hudson’s jury sent the trial judge a note, which read: “We need the definition of aiding and abetting and the difference between second and first degree murder.” Joint Appendix at 594 (Trial Tr.). Defense attorney Young, who absented himself from the courtroom without Hudson’s permission, was not available to assess precisely the extent of the jury’s problems with the definition of aiding and abetting or their difficulty with the distinction between second and first degree murder. His absence made it impossible to challenge the trial court’s decision to reinstruct the jury with almost the exact same language it had originally used.

The majority relies heavily on our 1993 opinion in United States v. Harris, 9 F.3d 493 (6th Cir.1993), for the proposition that reinstructing a jury is not a critical stage of the trial. However, Harris is not controlling, because while the factual circumstances underlying Harris are similar to those present here, Harris does not even discuss the Sixth Amendment right to counsel, let alone the rule of presumed prejudice enunciated in Cronic . In Harris , the jury sent the court a note asking to have a written copy of the jury instructions, a request the court granted without contacting either of the parties. Id. at 499 . The defendant asserted that the district court erred by not giving him the opportunity to respond to the note on the basis of Rule 43 of the Federal Rules of Criminal Procedure, which provides that the “defendant must be present at ... every trial stage” except when “the proceeding involves only a conference or hearing on a question of law.” Fed.R.Crim.P. 43(a)(2), (b)(3). We held that while a technical error may have existed, the defendant was “unable to state a reasonable possibility of prejudice that resulted from the district court’s conduct.” Harris, 9 F.3d at 499 . At no point did Harris raise an ineffective assistance of counsel claim based upon his attorney’s absence during the reinstruction.

Harris is inapplicable here. Facially, Harris’s interpretation of Rule 43 does not control this case because Rule 43 only governs the presence of the defendant during trial and does not pertain to the defendant’s right to have counsel present. Additionally, whereas Sixth Amendment jurisprudence has divided the trial into critical and noncritical stages, Rule 43 requires the presence of the defendant at all stages of the trial, which makes a showing of prejudice even more imperative given that a Rule 43 error can be asserted be *221 cause of a defendant’s absence at a relatively unimportant portion of the trial.

Most significantly, Harris does not discuss the Sixth Amendment, the Cronic rule of presumed prejudice, or the standard for ineffective assistance of counsel fashioned in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), which requires a showing of prejudice in situations such as when counsel is absent during a noncritical portion of a criminal proceeding. Given that Harris concerns an entirely different area of criminal law, which does not distinguish between noncritical and critical stages, and that the defendant in Harris did not even raise a Sixth Amendment claim, it is an impermissible logical leap to say that implicit in the holding of Harris “is the conclusion that trial counsel’s absence was not during a critical stage of the proceedings because, had the absence occurred during a critical stage, prejudice would have been presumed under Cronic.” Maj. Op. at 216.

Several of the cases from other circuits to which the majority cites do not command its result. In United States v. Morrison, 946 F.2d 484 (7th Cir.1991), the Seventh Circuit ruled that “the court’s reading of the jury instructions (as opposed, perhaps to a court’s jury instruction conference with counsel)” did not constitute a critical stage. Id. at 503 . However, this holding presupposes that counsel was present to agree or to object to the precise phrasing of the instructions before they were read. The court’s conclusion also rests on the belief that it is unlikely that the district court will commit an error in the actual recitation of the instructions to which the parties have already agreed such that counsel needs to be present to monitor for such an occurrence. The Seventh Circuit’s conclusion implies that the jury instruction conference is a critical stage, and defense attorney Young’s absence during the jury’s return for further instruction precluded the occurrence of any such conference, thus denying Hudson the opportunity even to assess whether an additional instruction conference was needed. In Curtis v. Duval, 124 F.3d 1 (1st Cir.1997), the First Circuit clearly stated that “recalling the jury for supplementary instructions after deliberations are underway is a critical stage of a criminal trial” and “giving a sua sponte jury instruction without consulting, and in the absence of, the defendant’s attorney ... denies the defendant the assistance of counsel at that critical stage” but did not draw any distinction between supplementary instructions and re-reading old instructions. Id. at 4-5 . The First Circuit ultimately rejected the defendant’s Cronic claim, but only on the ground that the defendant’s case became final before Court’s decision in Cronic. Id. at 5 (citing Teague v. Lane, 489 U.S. 288, 310 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989)). The First Circuit’s unpublished decision in Gonzalez-Gonzalez v. United States did reach the conclusion that Cronic does not apply when the court gave the jury supplemental instructions in the absence of defendant’s counsel, but its analysis of whether supplemental instructions constitute a critical stage is sparse at best, relying mostly on the self-fulfilling proposition that “prejudice per se is hen’s-teeth rare.” Gonzalez-Gonzalez, No. 02-1243, 2002 WL 31416029 , at *2, 49 Fed.Appx. 322 (1st Cir. Oct. 29, 2002). Finally, the Third Circuit’s decision in United States v. Toliver, 330 F.3d 607 (3d Cir.2003), stands only for the proposition that submitting testimony to the jury in response to a request does not constitute a jury instruction, but the case does not provide any guidance regarding whether absence of counsel during an actual instruction (using either new or previously *222 read instructions) constitutes deprivation of counsel at a critical stage. Id. at 614 .

Therefore, I would hold that jury rein-struction is a critical stage of a criminal proceeding and the absence of counsel from that proceeding constitutes a presumptively prejudicial violation of the Sixth Amendment. The judgment of the district court granting a conditional writ of habeas corpus should be affirmed. I respectfully dissent.