Opinion Analysis: Court says prejudice required to claim deprivation of counsel

People v. Lewis
Docket No. 154396

Trial Lawyer’s Takeaway: a criminal defendant must show prejudice to claim deprivation of counsel.

The question in Lewis was whether deprivation of counsel at the preliminary examination was a “structural error” or an error where the defendant must show prejudice in order to obtain a reversal.  Under the Sixth Amendment, a criminal defendant is entitled to counsel at all critical stages of a prosecution.

The Court, in a unanimous opinion by Justice Larsen, analyzed two seemingly conflicting U.S. Supreme Court cases: United States v. Cronic, 466 U.S. 648 (1984), which said denial of counsel at a critical stage is a structural error and Coleman v. Alabama, 399 U.S. 1 (1970), which said it was subject to harmless-error review.  The Court concluded that the statement in Cronic was dicta, and the statement in Coleman was a holding, so Coleman’s application of harmless-error review controlled.

The Court then decided not to answer what exactly constitutes prejudice under harmless-error review.  The opinion therefore remanded the case to the Court of Appeals to consider “the substantive criteria or the procedural framework that should attend such review.”

Justice McCormack, who joined the majority opinion in full, wrote separately to stress that the U.S. Supreme Court should reexamine Coleman in light of Cronic.  McCormack discussed her concern that harmless-error review would “invite[] a potentially problematic level of speculation into judicial review.”  For this reason, she said harmless-error review is impractical, but acknowledged the Court was bound by Coleman.  Justice Bernstein joined McCormack’s concurrence.

Full opinion here.