Opposition Brief — Gary Patrick Lewis, Petitioner v. Michigan

No. 19-6271

In The

Supreme Court of the United States

GARY PATRICK LEWIS,

Petitioner,

Vv

STATE OF MICHIGAN,

Respondent.

On Petition for Writ of Certiorari

to the Third Judicial Circuit Court for the County of Wayne

BRIEF IN OPPOSITION

JASON W. WILLIAMS

Chief of Research, Training and Appeals

Wayne County Prosecutor’s Office

11" Floor, 1441 St. Antoine

Detroit, Michigan 48226

(313) 224-5792

KYM L. WORTHY

Prosecuting Attorney

County of Wayne

AMY M. SOMERS*

Assistant Prosecuting Attorney

Wayne County Prosecutor’s Office

11" Floor, 1441 St. Antoine

Detroit, Michigan 48226

(313) 224-8109

Attorneys for Respondent

Counsel of Record *

TABLE OF CONTENTS

Tale or Comremts «a nee men cau & Won RO EX & OER ERROR HOE ER ERS & OR & CO RE BO

Counter-Statement of Question Presented ........... 060 c ec eee een ees

Table of Authorities sz < sxe eK BO RWE HOE BWR 8 5 HONOR ORS HSS RON GON EEK HRS BSR

Reasons for Denying the Writ .. 2... 0.0... cece eee eens

I. Coleman vu Alabama is dispositive .... 0.06.66 ee eee eee eee

Il. United States v Cronic did not displace Coleman v Alabama ......

Ill. Under Coleman, a denial of counsel at the preliminary

examination stage is not structural error................00000:

IV. Courts do not need guidance to apply harmless error analysis

under Coleman, especially where the defendant was convicted

beyond a reasonable doubt after a fair trial.................05.

V. This case is not a proper vehicle for this Court to re-examine

Coleman oo ee nee eee eee teen eee eee

COUNTER-STATEMENT OF QUESTION PRESENTED

I.

Is a denial of counsel at the preliminary examination

stage subject to harmless error analysis under

Coleman v Alabama?

ra

TABLE OF AUTHORITIES

FEDERAL CASES

Arizona v Fulminante,

499 US 279 (1991)... cece cece cece ccc cveueveueveueeutueueseseeerrenes

Bourne v Curtin,

666 F3d 411 (CA 6, 2012) a8 casa a Gee 2a ee TEE ERE HS’ Bw BoE Hewat WADE ars 18-

Chapman v California,

386 US 18 (1967)... cc eee ee ne Oh Oh ER 8 Sone WES aoe 11, 15,

Coleman v Alabama,

399 US 1 (1970). 0c ce et eee tee t eet eee e tenes 5,

Ditch v Grace,

479 F3d 249 (CA 8, 2007). 2... ce eee teen eens 16-

Ellis v United States,

313 F3d 636 (CA 1, 2002)... .. aia 6 ERS AE SHAE ERE BES HSE BOS RB BSR BSR BW.

Estelle v Smith,

451 US 454 (1981), » ssse ews eae prem Wa S HWW Row & EW OFS He! pr BIE OG BEG

Gideon v Wainwright,

372 US 335 (1968)... . . . via wemavs staawiene state We sUaw bie wwe wi RwTS BREN OO wi OTN aNece Wu

Hamilton v Alabama,

368 WS, SZC aes sare cx eee HK OR RMON KATA MOS WE NODEN sITR RE ER m8 14-

Hammonds v Newsome,

816 F2d 611 (CA 11, 1987). 00. e eevee vee ev evevee. 14,

Hoffman v Arave,

236 F3d 523 (CAY, 2001)... ee eee eee eens

Holloway v Arkansas,

435 US 475 (1978). ........... 0. ee oe Hee Hee HG USE ES ROW 2 ROW BSR HSS

Mickens v Taylor,

535 US 162 (2002). . sae sass ates & tek BS & NONE BOE MNEs Ge HO SG aSU T ROR HOD

iil

TABLE OF AUTHORITIES

FEDERAL CASES

Mitzel v Tate,

267 F3d 524 (CAG, 2001). 0... ccc cece cc uevceecuseucuceueusucesees 17

Neder v United States,

527 US 1 (1999)... eee eee eee eee e tennant 16

Redmond v Worthinton,

878 F Supp 2d 822 (ED Mich, 2012). 2.0... 00... ce ee ee tees 24

Roe v Flores-Ortega,

528 US 470 (2000). . . . w sae gcow sip was Kowa 56 Hewes ROR H ROW da ROE OG HOE 58 Fe 20

Rose v Clark,

478 US 570 (1986)... 6 wise ates ons aconrets sete oN WE Bie BU WN Bale EA ee BE Gate ex 16

Rushen v Spain,

AGA (OSL1AALZ OI) crm mess soak Her HAMLET EN KER HA Ow ee WRUNIOA Meee Ke wee SonIIRIET Rl 18

Sanders v Lane,

861 F2d 1033 (CA 7, 1988)... 0... ce eee eee eee nee 17

Satterwhite v Texas,

486 US 249 (1988)... ce eect eee eae 10-12, 15-16, 18

Smith v Lockhart,

923 F2d 1314 (CA 8, 1991). . .s ves se wae HSS He Ga SHARES Gale b tole Ree Hae - 17

Sullivan v Louisiana,

508 US 275 (1998)... 0... cee ee ee ORFs Mew Haw OWE % EES Be WE GER. - 21

Takacs v Engle,

768 F2d 122 (CA 6, 1985). cosa ies iw oss wos seers ams wince aneveRere Bees a HER ER WH WK BH U- 13

United States v AR,

BOLOG.699, (CALS, WIG) ca. cece: RHO O HER EESOCR WH EDR SMR EX ER Ew SA AEN a ES 10

United States v Cronic,

466 US 648 (1984)... cc te te eee tee cent eee ee eeees 13

lv

TABLE OF AUTHORITIES

FEDERAL CASES

United States v Dominguez-Benitez,

542 US 74 (2004)... eee ccc cece cece eet eseseueeresetesneeeeues 16

United States v Klat,

156 F8d 1258 (1998). 2... ce ete eee es 17

United States v Lampton,

158 F3d 251 (CA. 5, 1998). eeuece ibis Ge AOE ROR REE 8G WSS SG SS Rete Hema Bee oe 8 17

United States v Lott,

433 F3d 718 (CA 10, 2006). . . . .aig sie x sis ets Heo eG Wi Olas Be Bis OM SHU He wa i

United States v Owen,

407 F3d 222 (CA 4, 2005) saie ax eae ea weis seonw seats ae am as Os BREN ED ate Re 16, 18

Van v Jones,

475 F3d 292 (CA 6 2007). . .. =. a ssa evare mies Sate & Hie eKOM SKEU HO HME HH mT 19

White v Maryland,

373 US 59 (1968)... ee eee ee eee een eee teen eee 15

Woods v Donald,

135 S Ct 13872 (2015)... ee es ose eee ecece vee sees artim tan ate oe Bee MOM HE HS 20

Yarborough v Keane,

101 F3d 894 (CA 2, 1996)... csgied soe S8 HOR ROS HR WOS TOR OG He Bow Gs Wore EH war. 16

Connecticut v Brown,

279 Conn 493 (2006), eiece erece evita guid Oe Huts RSG HOM HS HOW His HRT CWE Sow oe 21

Michigan v Anderson,

446 Mich 392 (1994). . re sare siete SER Sie HS! Hee Sele HS Wee SWAT Baie Bee BE Brew 4 2

Michigan v Eddington,

77 Mich App 177 (197 T)ssia 6 sie gai wan Gia sims ones wre CUES wee Bas Wa wre wae WOO 21

TABLE OF AUTHORITIES

STATE CASES

Michigan v Lewis,

501 Mich 1 (2017)... 0... ccc ee tee eee eee 5-6, 8, 17, 21

Michigan v Lewis,

503 Mich 1028 (2019)... 0... eee een teens 7-8

Michigan v Lewis (On Remand),

322 Mich App 22 (2017)... 0. ce ee nee eet e eee ns 7,21

Michigan v Lewis,

Unpublished opinion per curiam of the Michigan Court of Appeals,

issued July 21, 2016 (Docket No 325782)... 0... 0... ee eee 5, 25

Michigan v Murphy,

481 Mich 919 (2008)... 0.00. ccc cece eee ececuvuevueeeeeeeeeevees 16

MICHIGAN COURT RULES

MCR 6.008 w ssa ws sais sieved wr atnk Wiech Matinee BINA BeadN Shard URNA UTNE Mee WAN Nag eR WE Hiaia & 2-3

vi

COUNTER-STATEMENT OF THE CASE

Defendant was convicted in a jury trial for a series of arson offenses that he

committed in 2014. On June 18, 2014, defendant appeared before Judge Joseph

Baltimore of the 36" District Court in Detroit, Michigan for his preliminary

examination. Defendant was represented by a court-appointed attorney, Rene Cooper.

Cooper indicated to the court that there had been a breakdown in communication

between him and defendant, that defendant no longer wanted him as his attorney, and

that defendant would not talk to him. Defendant agreed, stating that he had been

locked up for almost four months and had only seen Cooper one time for two minutes.

6/18, 3-4. Defendant further stated that when he tried to talk to Cooper, Cooper told

him “J don’t want to hear it.” 6/18, 4. The court concluded that there had indeed been

a breakdown in communication and appointed attorney Brian Sherer to represent

defendant. 6/18, 5. The court told defendant that Sherer would be the last lawyer he

would be getting, and that if they could not get along then defendant would have to

represent himself. 6/18, 5.

On July 30, 2014, the parties were back in court for defendant’s preliminary

examination. Attorney Brian Sherer was present. When the court asked defendant

to place his name on the record, defendant replied, “I’m not talking. I don’t have no

attorney. This man disrespecting me. You all violating my rights. I’m through with

it. I’m through with it.” 7/30, 3. The court made a record that defendant did not want

either of the lawyers that had been appointed to represent him and that the court was

going to hold the examination with defendant representing himself. 7/30, 3-4. The

1

court asked Sherer to act as standby counsel. 7/30, 4. The court explained, “It is not

reasonable or fair for me to try to force a lawyer to expose his reputation with someone

who obviously has demonstrated that he does not desire to have lawyers representing

him.” 7/30, 5. The court did not comply with MCR 6.005! or go through the Anderson’

factors to establish an unequivocal waiver. Defendant continued making outbursts to

the point that he had to be removed from the courtroom. 7/30, 6-9, The court excused

Sherer. 7/30, 9. The court continued with defendant’s examination in his absence and

he was bound over without an attorney present. 7/30, 60.

On October 15, 2014, defendant appeared in Wayne County Circuit Court before

Judge David Groner for his arraignment. Sherer was present, with the understanding

that defendant was representing himself, and asked the court to allow him to withdraw

as counsel. 10/15, 3-4. Defendant stated that he was not representing himself. 10/15,

3. The court then allowed defendant to interview several lawyers and to choose the one

‘Under Michigan’s court rules, if the court determines that the defendant is financially

unable to retain a lawyer, it must promptly appoint a lawyer and promptly notify the lawyer of the

appointment. The court may not permit the defendant to make an initial waiver of the right to be

represented by a lawyer without first (1) advising the defendant of the charge, the maximum possible

prison sentence for the offense, any mandatory minimum sentence required by law, and the risk

involved in self-representation, and (2) offering the defendant the opportunity to consult with a

retained lawyer or, if the defendant is indigent, the opportunity to consult with an appointed lawyer.

MCR 6.005.

* Michigan v Anderson, 398 Mich 361, 367-368 (1976) set forth a 3-factor test to establish a

valid waiver: (1) the defendant's request is unequivocal, (2) the defendant is asserting the right

knowingly, intelligently, and voluntarily after being informed of the dangers and disadvantages of

self-representation, and (3) the defendant's self-representation will not disrupt, unduly

inconvenience, and burden the court and the administration of the court's business.

2

he liked best. 10/15, 6-9. Defendant chose to have attorney Robert Slameka represent

him. 5/380, 10.

On October 30, 2014, a pretrial was held before Judge Lawrence Talon and

defendant was represented by Slameka. 10/30, 3. Defendant’s trial was scheduled to

begin the following Monday, November 38, 2014. At the pretrial hearing, defendant told

the court that he did not want Slameka to represent him either. 10/30, 39-41.

Defendant also told the court that he had filed grievances against both Sherer and

Slameka and that he had written a letter to the Chief Judge at 36" District Court

complaining about Judge Baltimore. 10/30, 29, 32. The court proceeded to hold a

hearing pursuant to Michigan Court Rule 6.005(D)(1)* and complied with the

requirements therein. 10/30, 46-56, Defendant indicated that he thought he was being

“forced” to represent himself, but when asked if he wanted Slameka to represent him,

he told the court, “I don’t want Mr. Slameka nowhere around,” and “Mr. Slameka’s not

going to be nowhere around me.” 10/30, 18, 45, 55-57. The court stated that it would

revisit the issue at the next court date, so that defendant could decide for sure if he

wanted to represent himself or if he wanted Slameka to act as back-up. 5/30, 56.

The parties returned to court on the date set for trial, November 3, 2014. Over

the weekend, defendant had spoken to attorney Patricia Slomski. Defendant told the

court that he wanted the court to remove Slameka from the case and appoint Slomski

3Under MCR 6.005(D)(1), before a court can allow a defendant to waive the right to counsel,

the court must first advise the defendant of the charge, the maximum possible prison sentence for

the offense, any mandatory minimum sentence required by law, and the risk involved in

self-representation.

to represent him. He further’stated that he never wanted to represent himself. 11/3,

4-5. The court appointed Slomski and also appointed an investigator to assist her with

preparing for trial. 11/3, 6-7.

On November 5, 2014, the parties returned to court to proceed with defendant’s

trial. Defendant told the court that he did not want Slomski as his attorney, because

she had only visited him for ten minutes prior to trial. 11/5, 11. The court again asked

defendant if he wanted to represent himself. He stated that he did not. 11/5, 11-12.

The court asked if he wanted Slomski to represent him. Defendant replied, “Yes, sir.

Go ahead, sir. Yes, sir.” 11/5, 12. Slomski represented defendant for the duration of

his trial.

At trial, the same witnesses that appeared at defendant’s preliminary

examination were called to testify again. Several of them identified defendant as the

arsonist. 11/5, 119-120, 124, 127-128, 149-152,160-162; 11/6, 11, 79-80. Defendant

also had lighters in his pocket when he was arrested. 11/6, 34, 37. Defendant was

convicted of five out of six arson charges. He was acquitted as to one of the charges.

Defendant was sentenced to seventeen to thirty years imprisonment on each of the five

counts, to run concurrently. 12/23, 21-22.

Defendant filed an appeal of right and a pro per brief in the Michigan Court of

Appeals. The Court of Appeals held that defendant’s Sixth Amendment right to

counsel was violated where the district court judge excused both defendant and his

attorney from the proceedings without obtaining a valid waiver of defendant’s right to

counsel. The Court of Appeals vacated defendant’s convictions and sentences and

remanded the matter for a new trial. In its opinion, the Court of Appeals stated its

conclusion that the error was structural in nature and required automatic reversal.

But the Court also acknowledged that the denial of counsel at a critical stage does not

always require automatic reversal, specifically where the error does not “infect the

entire proceedings.”*

The People were granted leave to appeal in the Michigan Supreme Court. On

July 31, 2017, the Supreme Court issued a written opinion and order, citing Coleman

v Alabama,’ and holding that a deprivation of counsel at the preliminary examination

stage is subject to harmless error review. The Supreme Court remanded the case to

the Court of Appeals for a determination as to whether the error was harmless.° The

Supreme Court left it up to the Court of Appeals to determine “the substantive criteria

or the procedural framework that should attend such review,” but two justices

suggested “guideposts” for the Court of Appeals to consider, such as the factors

discussed in Coleman:

There are, of course, many ways that the absence of counsel at a

preliminary hearing might be harmful to a defendant apart from

counsel's role in negating a showing of probable cause. Indeed, the

Coleman Court identified many of these: counsel uses a preliminary

‘Mich igan v Lewis, unpublished opinion per curiam of the Michigan Court of Appeals, issued

July 21, 2016 (Docket No. 325782), p 3-4. (Defendant’s Appendix D).

>Coleman v Alabama, 399 US 1, 11 (1970) dn Coleman, the United States Supreme Court

held that a denial of counsel at the preliminary examination stage is subject to harmless error

analysis).

°Michigan v Lewis, 501 Mich 1 (2017). (Defendant’s Appendix C).

5

hearing to expose weaknesses in the prosecution's case through

cross-examination, lays the grounds for later impeachment at trial,

effectively discovers the prosecution's case, and makes arguments related

to bail or psychiatric examinations. 1 Id. at 9,90 S.Ct. 1999. I can think

of others, too: the preliminary examination is often a critical

client-counseling moment when plea deals can be negotiated, and

additional formal and informal communications between defense counsel,

the prosecutor, and the court give the defendant important information

about the evidence against him or her.’

The Supreme Court also cautioned that the Court of Appeals should not

automatically presume that defendant was harmed simply because he was denied

counsel at his preliminary examination. Likewise, the Court of Appeals should not

automatically presume that the denial of counsel was harmless, just because defendant

was later convicted after a fair trial. The latter is true even where no evidence from

the preliminary examination was used at trial and where defendant did not give up

any rights or defenses by being unrepresented at the preliminary examination.°

Thus, it was between those two extremes that the Court of Appeals was

instructed to begin their inquiry into what harmless error review should look like:

“And so, with the two perhaps most intuitive options for assessing harm off the table,

courts are left to give meaning to the [United States] Supreme Court's command to

determine whether defendant was ‘otherwise prejudiced by the absence of counsel at

9999

the preliminary hearing.

Id at 6 (McCormack, J., and Bernstein, J., concurring).

Td at 5 (Justice Larsen writing for the majority).

"Id at 6.

In a published opinion dated November 2, 2017, the Court of Appeals applied the

Coleman factors along with the fact-specific arguments that defendant raised in his

supplemental brief. The Court of Appeals held that the error was harmless beyond a

reasonable doubt.’® Defendant then applied to the Michigan Supreme Court for leave

to appeal the Court of Appeals’ decision.

On May 17, 2019, the Supreme Court issued an Order denying defendant’s

application. Justice McCormack concurred in the order," but wrote separately because

she believed that the Court of Appeals’ analysis of the first Coleman factor was flawed

in that the Court of Appeals considered that defendant was ultimately convicted after

a fair trial in its finding that the first factor was “moot.” Justice McCormack expressed

no opinion as to whether defendant’s ultimate conviction after a fair trial was relevant

to the analysis of the first factor, but took issue with the Court of Appeals’ finding that

it rendered the factor moot, because “the Court of Appeals seemingly made the fact of

the conviction at trial dispositive to its analysis of the first factor, which this Court said

is not permissible.” In a footnote, Justice McCormack added, “The Court of Appeals

cited Coleman in support of its analysis of this factor, but its citation was to Justice

White’s concurring opinion, which of course is nonbinding. Lewis (On Remand), 322

Mich App at 31, citing Coleman, 399 US at 18 (White, J., concurring).”””

Michigan v Lewis (On Remand), 322 Mich App 22, 34 (2017). (Defendant’s Appendix B).

Justices Bernstein and Clement joined in Justice McCormack’s concurrence.

2 Michigan v Lewis (Order After Remand), 503 Mich 1028; 926 NW2d 579 (2019).

(Defendant’s Appendix A).

Justice McCormack also took issue with the Court of Appeals’ analysis of the

second Coleman factor, because “[t]he Court of Appeals relied heavily on the fact that

trial counsel was given a transcript of the preliminary examination in concluding that

[the second Coleman factor] weighed in favor of finding the error harmless.” Justice

McCormack opined that the Court of Appeals missed the point because “a transcript

of a preliminary examination conducted without the benefit of defense counsel doesn’t

address the problem that the prosecution’s witnesses were not cross-examined at that

hearing.” Such reasoning would “result in finding error harmless in every case

conducted in the absence of defense counsel: preparing a transcript isn’t the problem;

it’s that the transcript is unhelpful.”

Notwithstanding these “flaws,” Justice McCormack closed by stating her opinion

that the Court of Appeals had correctly determined that the error was harmless under

Coleman, but that she had reached this conclusion “largely because Coleman takes ‘the

two perhaps most intuitive options for assessing harm off the table[.]”* Justice

McCormack invited “guidance” from this Court as to how harmless error review should

be applied in the context of a denial of counsel at the preliminary examination stage:

“T hope [the United States Supreme Court] will either provide such guidance or clarify

‘whether the Coleman harmless-error review remains a sustainable rule when a

defendant is denied counsel at a preliminary examination.”

31d.

‘47d at 580-581, quoting Michigan v Lewis, 501 Mich 1, 12 (2017).

Sq, quoting Michigan v Lewis, 501 Mich 1, 16 (2017).

8

Defendant now seeks a writ of certiorari from this Court.

REASONS FOR DENYING THE WRIT

Coleman vu Alabama is dispositive.

There is no conflict in the law that would require this Court’s intervention.

Coleman v Alabama" is controlling. In Coleman, the state of Alabama failed to

appoint counsel for the defendant’s at their preliminary examination hearing, and the

hearing proceeded without counsel. This Court held that, although a defendant’s

preliminary examination is a critical stage for purposes of the Sixth Amendment right

to counsel, a denial of counsel at the preliminary examination stage does not require

automatic reversal. Rather, this Court remanded the case for a determination as to

harmless error pursuant to Chapman v California."

Several years later, in Satterwhite v Texas,” this Court reaffirmed the harmless

error rule from Coleman. In Satterwhite, the defendant was denied his right to consult

with counsel prior to undergoing a psychiatric examination.” The examining

psychiatrist was later allowed to testify at the defendant’s capital sentencing

Coleman v Alabama, 399 US 1 (1970).

"Td at 9-10.

8 catterwhite v Texas, 486 US 249 (1988).

In Estelle v Smith, 451 US 454, 470 (1981), a pretrial psychiatric interview in a capital case

“proved to be” a critical stage for right to counsel. The holding has been viewed as a limited one,

applying to the specific circumstances present in Estelle. See, e.g. United States v AR, 38 F3d 699,

704 (CA 8, 1994), where the Third Circuit said: “The Sixth Amendment violation in Estelle stemmed

fom the fact that the psychiatric evaluation proved to be a critical stage of the aggregate proceedings

against respondent, Thus the evaluation was not itself inherently the sort of event to which the

right to counsel attaches.” (Emphasis added).

10

proceeding, regarding his opinion that the defendant was “as severe a sociopath as you

can be.” This Court found that while the denial of counsel clearly violated the

defendant’s Sixth Amendment right to counsel, the error was not subject to automatic

reversal: “Our conclusion does not end the inquiry because not all constitutional

violations amount to reversible error.””” This Court again applied the harmless error

test set forth in Chapman v California.”’ That is, if the prosecution could prove

“beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained” then the error could be deemed harmless.”

Defendant attempts to diminish the holding of Satterwhite by categorizing the

error in Satterwhite as evidentiary in nature: “The issue in Satterwhite did not involve

23

the absence of counsel at a critical stage.”* It involved the erroneous admission of

evidence obtained through unconstitutional means, like the introduction of a confession

obtained in violation of Miranda.””

While the erroneous admission of evidence may

have been the effect of the constitutional violation in Satterwhite, the defendant was

still denied counsel at a critical stage. Of course, the effect of the constitutional error

20 Satterwhite v Texas, 486 US 249, 256 (1988), citing Chapman v California, 386 US 18

(1967).

21 Chapman, supra, at 24,

>? Satterwhite, supra, at 253-258.

2Phis statement is incorrect. In Satterwhite, this Court applied the rule from Estelle and

said that the defendant’s right to counsel had attached at the time of the psychiatric violation, noting

that his indictment, arraignment, and appointment of counsel had all occurred prior to the interview.

Id at 254-255. Thus, it was a denial of counsel at a critical stage.

4Defendant’s Petition for Writ of Certiorari.

11

is relevant to assess whether it should be deemed harmless or structural, and that was

the context in which this Court considered the erroneous admission of evidence in

Satterwhite: “In this case, the effect of the Sixth Amendment violation is limited to the

admission into evidence of Dr. Grigson's testimony. We have permitted harmless error

analysis in both capital and noncapital cases where the evil caused by a Sixth

Amendment violation is limited to the erroneous admission of particular evidence at

trial.” The pertinent inquiry is not whether the effect of the error was evidentiary in

nature, but whether error affected the defendant’s trial. The Sixth Amendment

violations that can “never be considered harmless” are those that “pervade the entire

9926

proceeding.

Coleman is directly on point to this case and has never been overruled.

*® Satterwhite, supra, at 257.

© Satterwhite, supra, at 256.

12

II. United States v Cronic did not displace

Coleman v Alabama

7 an ineffective

Contrary to defendant’s assertions, United States vu Cronic,”

assistance case involving Strickland analysis, does not apply to a complete denial of

counsel at a probable cause hearing. In Cronic, decided fourteen years after Coleman,

this Court stated in dicta that a complete denial of counsel at a critical stage would be

a circumstance in which prejudice could be presumed. But the statement was made

in the context of evaluating whether counsel was ineffective at trial. And in that same

vein, this Court also stated that, “Absent some effect of challenged conduct on the

reliability of the trial process, the Sixth Amendment guarantee is generally not

implicated.”= Cronic had nothing to do with a complete denial of counsel at the

preliminary examination stage, so the fact that Cronic never mentioned Coleman is

unremarkable.

Still, defendant relies on this Court’s decision in Cronic for the proposition that

a denial of counsel at a critical stage entitles him to a “presumption of prejudice.” But

that was not the holding of Cronic. As Justice Larsen correctly pointed out at oral

argument before the Michigan Supreme Court, Cronic’s entire discussion as to absent

counsel was mere dicta, because Cronic dealt with the adequacy of counsel’s

representation—not the complete absence of counsel.” Further, the alleged error in

"Um ited States v Cronic, 466 US 648 (1984).

87d at 658.

"*See also Takacs v Engle, 768 F2d 122 (CA 6, 1985) (characterizing Cronic as an ineffective

assistance case in which this Court’s statement that a complete denial of counsel was subject to

13

Cronic occurred at the defendant’s trial, not at a probable cause hearing. But even

though Cronic did not hold as such, defendant points to subsequent cases that have

followed Cronic for the proposition that a total deprivation of counsel at a critical stage

is per se structural error.

For example, defendant cites Hamilton v Alabama, a 1961 case in which this

Court held that a denial of counsel at the defendant’s pretrial arraignment was

structural error. But that was because in Hamilton, Alabama state law required the

defendant to assert his defense(s) at arraignment or else it would be “irretrievably

lost.” As such, this Court found that “the degree of prejudice can never be known.

Only the presence of counsel could have enabled this accused to know all the defenses

available to him and to plead intelligently.”*° In Hamilton, the denial of counsel cost

the defendant his only opportunity to assert a defense, so a presumption of prejudice

was appropriate.

The law regarding a denial of counsel at a probable cause hearing is well-settled.

Coleman v Alabama is directly on point to this issue, and this Court’s holding in

Satterwhite v Texas—post-Cronic—affirms that Cronic was not intended to overrule

Coleman. Eight years after Cronic, this Court explained in Satterwhite that some

constitutional violations are so egregious that they can never be considered harmless,

automatic reversal without any showing of prejudice was “dicta” and affirming that “Coleman's

harmless error analysis remains good law [post-Cronic].”); Hammonds v Newsome, 816 F2d 611 (CA

2, 1987) (limiting the presumptive prejudice approach of the Cronic “dictum” to a “narrow range of

cases” where there is a “fundamental breakdown of the adversarial process.” (internal citations and

quotations omitted).

Hamilton v Alabama, 368 US 52, 55 (1961).

14

noting that “Sixth Amendment violations that pervade the entire proceeding fall within

this category.” The cases—Coleman, Cronic, and Satterwhite—are reconcilable.

Under all three cases, the rule is that a denial of counsel—in order to be classified as

structural error—must somehow affect the defendant’s trial. All three cases have a

common thread—whether in the context of complete absence of counsel or ineffective

assistance of counsel—that in order to warrant reversal there must be a showing of

prejudice.

There is no conflict in the law. Coleman and Satterwhite are controlling.

3| satterwhite, supra, at 256, citing Holloway v. Arkansas, 435 US 475, 98 S Ct 1173, 55

(1978) (conflict of interest in representation throughout entire proceeding); Chapman, supra, 386 US,

at 23, n 8 (citing Gideon v Wainwright, 372 US 335 (1963) (total deprivation of counsel throughout

entire proceeding)); White v Maryland, 373 US 59 (1963) (absence of counsel from arraignment

proceeding that affected entire trial because defenses not asserted were irretrievably lost); and

Hamilton v Alabama, 368 US 52 (1961) (same).

15

IIl.

Under Coleman, a denial of counsel at the

preliminary examination stage is not structural error

Coleman requires that a denial of counsel at the preliminary examination stage

be reviewed for harmless error, and that case has never been overruled. This Court

has recognized that a finding of structural error is only appropriate in a “very limited

class of cases,” and that “most constitutional errors can be harmless.”* In other words,

a finding of structural error is the exception, rather than the rule. Generally, an error

will not be considered structural unless the effect of the error “pervade[s] the entire

proceeding.”®? Even structural errors do not always require per se reversal.” “[E]very

federal circuit court of appeals, has stated, post-Cronic, that an absence of counsel at

a critical stage may, under some circumstances, be reviewed for harmless error.”*? No

Neder v United States, 527 US 1, 8 (1999) (internal quotations and citations omitted); See

also Rose v Clark, 478 US 570, 576-579 (1986) (“Most constitutional violations do not require

automatic reversal of a conviction but must instead be reviewed to determine whether they were

harmless.”); Arizona v Fulminante, 499 US 279, 306 (1991) (recognizing that the rule adopted by

Chapman, supra, allows for harmless error analysis to be applied to a wide range of errors and that

most constitutional errors can be harmless, and citing to a number of cases where the rule has been

applied) (Chief Justice Renquist’s opinion).

33 Satter white, supra, at 256-257 (Sixth Amendment violations that pervade the entire

proceeding can never be considered harmless).

4tmited States v Dominguez Benitez, 542 US 74, 81 (2004) (“It is only for certain structural

errors undermining the fairness of a criminal proceeding as a whole that even preserved error

requires reversal without regard to the mistake’s effect on the proceeding.”).

> Michigan v Murphy, 481 Mich 919, 923 (Markman, J., concurring), citing Ellis v. United

States, 313 F3d 636, 643 (CA 1, 2002) (absence of counsel at critical stage would require presumption

of prejudice only if “pervasive in nature, permeating the entire proceeding”); Yarborough v Keane,

101 F3d 894, 897 (CA 2, 1996) (“a less significant denial of the right to counsel ... has been held to be

subject to harmless error review”); Ditch v Grace, 479 F3d 249, 256 (CA 3, 2007) (“A denial of counsel

at any critical stage at which the right to counsel attaches does not require a presumption of

prejudice. Rather, a presumption of prejudice applies only in cases where the denial of counsel would

necessarily undermine the reliability of the entire criminal proceeding.”); United States v Owen, 407 F3d

16

federal circuit has applied Cronic to a denial of counsel at the preliminary examination

stage.°®

In Ditch v Grace, the Third Circuit went even farther than Coleman and applied

harmless error analysis to a denial of counsel at the defendant’s preliminary hearing

even though—unlike in Coleman—a witness identification made at the examination

was used against the defendant at trial.*’ The Court also declined to apply Cronic:

“Cronic prescribes a presumption of prejudice only with regard to those critical stages

of litigation where a denial of counsel would necessarily undermine the reliability of

the entire criminal proceeding.””*

222, 226 (CA 4, 2005) (“[H]armless-error analysis applies to the denial of the Sixth Amendment right to

counsel at all stages of the criminal process, except for those where such denial affects and

contaminates the entire subsequent proceeding.”), cert den 546 U S 1098 (2006); United States v

Lampton, 158 F3d 251, 255 (CA 5, 1998) (applying harmless-error review when counsel was absent

during adverse testimony); Mitzel v Tate, 267 F3d 524, 534 (CA 6, 2001) (“In ‘cases where the evil

caused by (denial of counsel at critical stage] is limited to the erroneous admission of particular

evidence at trial[,] harmless error analysis applies.’ ”) (citation omitted); Sanders v Lane, 861 F2d

10338, 1040 (CA 7, 1988) (“[I]n Satterwhite ..., the Supreme Court explained that not all violations of

the right to counsel warrant per se reversal.”); Smith v Lockhart, 923 F2d 1314, 1321-1322 (CA 8,

1991) (noting that harmless-error review may apply under some circumstances when counsel is

denied at a critical stage); Hoffman uv Arave, 236 F3d 528, 540 (CA 9, 2001) (after concluding that

defendant had been denied counsel at a critical stage, “[t]he next step of our analysis is to ask

whether this constitutional violation is ‘harmless error’ ”); United States v Lott, 433 F3d 718, 722 (CA

10, 2006) (“Some Sixth Amendment right to counsel violations are amenable to harmless error

analysis, while others are not.”); Hammonds v Newsome, 816 F2d 611, 613 (CA 11, 1987) (applying

harmless-error review to a denial of counsel at a preliminary hearing); United States v Klat, 156 F3d

1258, 1263; 332 US App DC 230,235 (1998) (whether a denial of counsel at a critical stage “requires

automatic reversal turns on the extent to which the violation pervades the entire criminal

proceeding”).

6 Michigan v Lewis, 501 Mich 1, 16-17 (2017) (McCormack, J., concurring).

"Ditch v Grace, 479 F3d 249, 254-255 (CA 3, 2007).

387d at 255.

17

The Third Circuit’s limited interpretation of Cronic is consistent with the Fourth

Circuit’s holding in United States v Owen. There, the defendant was denied counsel

at his arraignment, but he did not plead guilty or waive any defenses at the hearing.

The Court held that although the arraignment was a critical stage where counsel was

required, the denial of counsel did not automatically equate to structural error. The

Court applied harmless error analysis under Coleman and found the error to be

harmless. The Court declined to find structural error under Cronic: “[W]e do not

assume that his lack of counsel was structural error—i.e., that his arraignment was

a ‘critical stage’ within the narrow meaning of Hamilton and Cronic—because, under

our governing law, the error Owen alleges can and must be subject to harmless-error

analysis.””°

In Bourne v Curtin, the Sixth Circuit applied harmless error analysis to a

defendant’s claim that he was denied counsel during ex parte communications between

the judge andjury. The trial judge, in the absence of defense counsel, denied a request

by the jury to re-hear testimony from five witnesses. Instead, he told them to rely on

their collective memories. Defendant’s trial counsel, upon hearing this, lodged an

objection. The Sixth Circuit Court of Appeals held that (1) violations of the right to

counsel at a critical stage are generally “subject to harmless error analysis,”*° and (2)

not all communications between judge and jury are critical stages - meaning a stage

Owen, supra, at 228-229, citing Satterwhite, supra, at 256.

0Bourne v Curtin, 666 F3d 411, 413 (CA 6, 2012), quoting Rushen v Spain, 464 US 114, 117-

119 n 2 (2012).

18

at which there is a “reasonable probability that [a defendant's] case could suffer

significant consequences from his total denial of counsel.”*’ The Court determined that

the error was harmless, noting that the jury had already been presented with the

material being requested, “the trial court had good reason to deny the jury's request,

notwithstanding any objection from defense counsel,” and any prejudice could have

been resolved at a post-trial hearing.”

Similarly, in Van v Jones, the Sixth Circuit determined that the absence of

counsel at the defendant’s consolidation hearing was not even a critical stage, where

the defendant could not demonstrate prejudice. The Court defined a critical stage as

one where “an opportunity may be irretrievably lost, or material may come out that

may be incurably damaging.””*

Defendant argues that, despite Cronic being dicta, “[t]his Court has followed

Cronic in numerous subsequent cases and has not backed off from its holding that total

deprivation of counsel at a critical stage is a structural error.” Defendant goes on to

quote Justice McCormack’s concurring opinion, in which she gave examples of such

cases. One such case was Roe vu Flores-Ortega. In Roe, the defendant’s trial counsel

failed to file a notice of appeal,** resulting in the loss of the defendant’s appellate right.

This Court held that the defendant had made out an ineffective assistance claim under

“Td at 414, quoting Van v Jones, 475 F3d 292, 313 (CA 6, 2007).

“Td at 414-415.

43

Jones, supra, at 315,

“The defendant had entered a guilty plea, so any appeal was by leave only.

19

Strickland. This Court did cite Cronic for the proposition that a complete absence of

counsel at a critical stage—including on appeal—would warrant a presumption of

prejudice. But at the same time, this Court declined to apply a per se prejudice rule

in Roe—rather, the defendant had to show that if his counsel’s performance had not

been deficient, he actually would have filed a timely appeal. Thus, the case was

remanded for a determination as to prejudice.”

Justice McCormack also cited Mickens v Taylor and Woods v Donald. In

Mickens, this Court made mention of the Cronic dicta, but did not adopt it where the

defendant’s trial counsel had a potential conflict of interest and the trial court failed

to make the required inquiries as to the conflict. Citing Cronic, this Court found that

a presumption of prejudice was not appropriate absent a showing that “the conflict has

significantly affected counsel's performance—thereby rendering the verdict

unreliable.”** In Woods, again this Court made mention of the dicta from Cronic, but

this Court found that it did not apply where defendant's counsel was only briefly

absent from the courtroom during the defendant’s trial and where the testimony during

counsel’s absence was not relevant to the defendant’s case.*”

Roe, Mickens, and Wood are consistent with all of the other caselaw to date.

There must be some showing of prejudice in order for reversal to be required. There

is no need for this Court to intervene.

“5 Roe v Flores-Ortega, 528 US 470, 479-487 (2000).

“©Mickens v Taylor, 535 US 162, 170-173 (2002).

47 Woods v Donald, 135 § Ct 1372, 1377-1378 (2015).

20

IV.

Courts do not need guidance to apply harmless error

analysis under Coleman, especially where the

defendant was convicted beyond a reasonable doubt

after a fair trial.

The Court of Appeals properly analyzed all of the Coleman factors as well as

other factors “relevant to the particular case” and concluded that the denial of counsel

at defendant’s preliminary examination was harmless.“ There is nothing in the record

to indicate that the Court of Appeals had any difficulty applying Coleman in order to

assess whether defendant was harmed.*® The Court of Appeals even looked to other

cases in order to determine what the harmless error test should look ike when a denial

of counsel occurs at the preliminary examination stage.’ Ultimately, the Court

decided to apply the Coleman factors along with two additional factors—whether

counsel could have negotiated a plea deal at the preliminary examination®’ and

whether counsel could have discovered the need to file pretrial motions at the

preliminary examination.”

‘8 Michigan v Lewis, 322 Mich App 22, 29 (2017).

See Sullivan uv Louisiana, 508 US 275, 281 (1993) (Structural errors involve “consequences

that are necessarily unquantifiable and indeterminate.”).

Td (noting that other jurisdictions have applied the Coleman factors in assessing harmless

error when a deprivation of counsel occurs at the preliminary examination stage. Specifically, the

Court cited Connecticut v Brown, 279 Conn 493, 509-510 (2006); Michigan v Eddington, 77 Mich App

177, 190-191 (1977)).

‘his was an additional factor discussed by Justice McCormack in her concurrence.

Michigan v Lewis, 501 Mich. 1, 14 (McCormack, J., concurring).

The Court added this factor because defendant raised concern about counsel's ability to file

pretrial motions in his brief on remand,

Zo)

The Court of Appeals was able to make specific findings regarding all of the

factors, and ultimately concluded that the error did not contribute to the verdict at

defendant’s trial. Defendant now argues that the fact of his ultimate conviction should

not have any bearing on harmless error analysis whatsoever. But even Justice

McCormack recognized that a defendant’s ultimate conviction after a fair trial is one

of the most “intuitive” factors when it comes to assessing harmless error. And that

makes sense, because at trial, the prosecutor is held to an even higher burden of proof.

To not consider a defendant’s ultimate conviction beyond a reasonable doubt would be

elevating the right to counsel at a preliminary examination—a statutory procedure

that is not even constitutionally required—to be more important than the right to have

the preliminary examination at all.

At the crux of harmless error analysis is whether the error complained of

contributed to the verdict. In this case, it did not. There was no evidence produced

at defendant’s preliminary examination that was later used against him at trial. The

same witnesses who testified at the examination testified at trial and were subject to

cross-examination. The evidence that was produced at the examination was sufficient

to support the bindover and, had defendant been represented, the outcome would have

been the same. All of the advantages defendant claims he was deprived of were

available to him at trial, where he had counsel and where the People’s case was

subjected to an even higher level of proof. Defendant was not denied the opportunity

See Chapman, supra, at 23-24.

22

and ability to challenge the sufficiency of the evidence against him at trial, nor was he

prevented from asserting any defenses.

Although Coleman says that a defendant’s ultimate conviction does not

automatically render a pretrial error harmless, it certainly must weigh heavily in the

assessment.

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