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WASHINGTON � The U.S. Supreme Court, in a Jan. 7 unsigned opinion, reversed a federal appellate court decision holding that a defense lawyer who participates in a plea hearing by speakerphone was presumptively ineffective. Joseph L. Van Patten was charged with first-degree intentional homicide and pleaded no contest to a reduced charge of first-degree reckless homicide. His lawyer was not physically present at the plea hearing but was linked to the courtroom by speakerphone. After being sentenced to 25 years in prison, Van Patten, with different counsel, moved to withdraw his no-contest plea in the Wisconsin Court of Appeals. He argued that his Sixth Amendment right to counsel was violated by his trial counsel’s physical absence from the plea hearing. The state appellate court found no constitutional violation. Van Patten then sought habeas relief in federal court. The district court denied relief, but the 7th U.S. Circuit Court of Appeals reversed, relying on U.S. v. Cronic, 466 U.S. 648 (1984). Unaddressed issues The U.S. Supreme Court noted that none of its decisions squarely addresses the issue in Van Patten’s case or clearly establishes that Cronic, and not Strickland v. Washington, 466 U.S. 468 (1984), should apply. For purposes of habeas relief, Van Patten had to show that the state court unreasonably applied clearly established federal law. “Because our cases give no clear answer to the question presented, let alone one in Van Patten’s favor,” the high court said, “it cannot be said that the state court ‘unreasonably applied clearly established Federal law.’ ” Wright v. Van Patten, No. 07-212. Van Patten’s warden said in his petition to the high court that the state does not “condone, recommend or encourage” telephone, rather than in-person, assistance at court proceedings, even in nonadversarial hearings. “Our own consideration of the merits of telephone practice, however, is for another day, and this case turns on the recognition that no clearly established law contrary to the state court’s conclusion justifies collateral relief,” the court said. Justice John Paul Stevens wrote a concurring opinion in which he said “an unfortunate drafting error” in Cronic made it necessary for him to join the opinion. The 7th Circuit, he said, apparently read “the presence of counsel” in Cronic to mean “the presence of counsel in open court.”[T]his interpretation is correct,” Stevens wrote. “The fact that in 1984 when Cronic was decided, neither the parties nor the Court contemplated representation by attorneys who were not present in the flesh explains the author’s failure to add the words ‘in open court’ after the word ‘present.’ ” Stevens authored the unanimous decision in Cronic.

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