concluding that, having established a Geders violation, an “appellant’s conviction must be set aside regardless of whether prejudice was demonstrated” or appellant “remonstrate[d] against the court’s order”
How later courts described this case
- concluding that, having established a Geders violation, an “appellant’s conviction must be set aside regardless of whether prejudice was demonstrated” or appellant “remonstrate[d] against the court’s order”
- upholding, in a footnote, exclusion of the "proffered expert psychological testimony on eyewitness identifications," where trial court concluded proffer was "akin” to that rejected in Dyas and therefore "not ... a proper subject for expert testimony”
- recognizing that there may be a “compelling reason for temporarily sealing off communication” between a defendant and his counsel
- observing that “[w]hen a violation of the right to 19 counsel is alleged, the degree of prejudice suffered by the accused, and the impact on jury deliberations often cannot be assessed on the record”
Written by the judges who cited it.
The opinion
*1207 NEBEKER, Associate Judge,
with whom HARRIS, Associate Judge, and YEAGLEY, Associate Judge, Retired, join, concurring in part and dissenting in part:
My disagreement with the majority centers on whether the harmless error rule 1 must be subordinated by an absolute constitutional rule in this case. I deem the majority opinion for the division to have properly and accurately determined that the error in foreclosing attorney-client conferences during the lunch recess was harmless. In the interest of brevity I refer the reader to that opinion. See Jackson v. United States, D.C.App., 420 A.2d 1202 (1978). My purpose for further elaboration is to expose what I deem to be erroneous analysis in the majority opinion. Without that kind of analysis I respectfully submit that the majority could not arrive at the absolute rule which it announces.
The Court in Geders v. United States, 425 U.S. 80 , 96 S.Ct. 1330 , 47 L.Ed.2d 592 (1976), was confronted with a prompt and specific objection to the inhibiting ruling of the trial judge. Counsel had said he had a right to confer about matters other than the upcoming cross-examination and that he wished to discuss problems relating to the trial with his client during the overnight recess. After further colloquy with the trial court, defense counsel persisted in his objection. The Supreme Court was therefore confronted with a situation making it wholly unnecessary to consider a failure to claim prejudice. As Judge Harris observed in the division’s majority opinion at footnote 6, the Supreme Court made it quite clear that its holding was most restricted. Indeed, Judge Gallagher in his dissent stated that the Supreme Court left open the constitutional question presented in this case. I might add that the question is still open as to routine recesses where the inhibiting order ís either objected to or, as in this case, not protested at all.
The majority, having made this initial analytical error in its reading of Geders v. United States, supra, then proceeds to a second weak spot in its analysis. It says “implicit in the Court’s opinion [Geders], as the concurring opinion observed, was that ‘a defendant who claims that an order prohibiting communication with his lawyer impinges upon his Sixth Amendment right to counsel need not make a preliminary showing of prejudice.’ ” There is no such implicit conclusion or holding in the Chief Justice’s opinion, for as I have already observed, the Court had a record rife with prejudice stemming from counsel’s repeated efforts in protest of the restriction. Moreover, I respectfully submit that the majority does violence to Mr. Justice Marshall’s concurring statement. Id. at 92 , 96 S.Ct. at 1337 . Of necessity Mr. Justice Marshall was referring to a “claim” made at the trial level. Surely one who makes such a trial level complaint need not thereafter make a more specific or preliminary showing of prejudice. “Such an order [made in the face of a request to consult] is inherently suspect and requires initial justification by the government.” Id. at 92-93 , 96 S.Ct. at 1337 .
A reading of the cases from “[o]ther courts”, id. at 89 , 96 S.Ct. at 1335 , cited in the Court’s opinion as reflective of error inhering in a protested overnight communications ban, can lead to only one conclusion: that an objection or protest to the ban is sufficient to preserve the point without a showing of specific prejudice. In each case there was an objection to the inhibiting order. 2
When, in footnote 2, the Chief Justice specifically refrained from reaching inhibiting orders during brief routine recesses, he *1208 cited three federal cases as examples. 3 In all three there was no meaningful protest (in two there was no objection at all) and a holding of no prejudice resulted in affirmance. Geders cannot be read as establishing a per se rule in which lack of prejudice plays no part. 4 These cases cited in Geders demonstrate that a good faith objection presumes a need to converse and when that need is circumscribed, prejudice results.
I therefore conclude that this court, even sitting en banc, is not freed by anything said in Geders from the statutory command to “give judgment after examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.” D.C. Code 1973 § 11-721(e). I would apply that rule as the majority of the division did and conclude that in the absence of any demonstration of prejudice by the appellant, the judgment of conviction should be affirmed. 5
. See D.C. Code 1973, § 11-721(e) which states:
On the hearing of any appeal in any case, the District of Columbia Court of Appeals shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties. [Emphasis added.]
My reliance on this provision does not suggest that I would or could exalt it over the Constitution. I simply find no constitutional requirement that the harmless error rule is inapplicable in this case.
. See United States v. Venuto, 182 F.2d 519 (3d Cir. 1950); People v. Noble, 42 Ill.2d 245 , 248 N.E.2d 96 (1969); Commonwealth v. Werner, 206 Pa.Super. 498 , 214 A.2d 276 (1965). But see People v. Prevost, 219 Mich. 232 , 189 N.W.2d 92 (1922).
. United States v. Schrimsher, 493 F.2d 848 (5th Cir. 1974); United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968); United States v. Leighton, 386 F.2d 882 (2d Cir. 1967).
. A fourth case, Krull v. United States, 240 F.2d 122 (5th Cir. 1957), cited by the Court, addresses the issue of the defendant’s right, while incarcerated, to converse with his attorney without the presence of a warden. The court held that the right of a defendant to consult with his attorney privately is a right which may have limitations such as this one imposed upon it.
The Geders decision, I submit, referred to Kruil to emphasize the court’s power to circumscribe the attorney-client communication. The three federal cases mentioned above are additional examples of that power. The fifth case, Pendergraft v. State, 191 So.2d 830 (Miss. 1966), presents different facts. In Pendergraft the inhibiting order was imposed during a two-hour recess and the attorney objected. Consistent with other cases where the attorney objected, prejudice was presumed.
. I concur generally in Part II of the majority’s opinion.