When the victim testified during Pamela Green's trial for kidnapping and gross sexual imposition, Green's lawyer, John Carlin, never asked her a single question.' In fact, it would have been impossible for Carlin to cross-examine the victim because he had left the courtroom to attend a hearing for a client in another case. After Green repeatedly complained about Carlin's absence and asked the judge to provide her with another attorney who might actually stay in the courtroom while the prosecution's principal witnesses testified, the judge not only rejected the request but also revoked Green's bond and remanded her to jail for the remainder of the trial. Not surprisingly, Green was convicted.
As the jury went out to deliberate David Hudson's fate at the conclusion of his first-degree murder trial, his attorney, Stuart Young, left to attend to another case after telling the judge to respond as he saw fit to any questions the jury might have. Not long after Young's departure, the jury asked the judge to explain the concept of aiding and abetting and to define the difference between first- and seconddegree murder. The judge responded by re-reading some of the murder instructions previously given and by reading a definition of aiding and abetting that the judge had read earlier for one of the other charges against Hudson. Since Young was not present for this reinstruction of the jury, there were no objections. The jury convicted Hudson of first-degree murder the next day.
These two cases bear an obvious similarity: the attorneys for both Pamela Green and David Hudson were absent during portions of their criminal trials in clear violation of the bedrock Sixth Amendment rule that a criminal defendant has the right to have the assistance of counsel throughout the entire trial. When these two cases reached the Sixth Circuit on habeas corpus review sixteen years apart, however, the court applied two very different rules of decision. In Green, the court held that the temporary absence of her attorney automatically required a new trial regardless of whether Green had been harmed by the temporary absence of counsel. In so holding, the court applied the Supreme Court's decision in United States v. Cronic, in which the Court endorsed a rule of "uniformly" reversing a conviction without requiring a showing of prejudice when counsel was absent from a critical stage of the trial. In Hudson, by contrast, the same Sixth Circuit concluded that Cronic did not apply, and that Hudson was not entitled to a new trial because he had failed to demonstrate exactly how the temporary absence of his attorney during the trial had harmed him.
David A. Moran,
Don't Worry, I'll Be Right Back: Temporary Absences of Counsel During Criminal Trials and the Rule of Automatic Reversal,
85 Neb. L. Rev.
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