On petition for writ of certiorari to the United States Court of
Appeals for the Eleventh Circuit.
The petition for a writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
The United States Court of Appeals for the Eleventh Circuit held
below that petitioner's Sixth Amendment right to the assistance of
counsel was not violated when he was refused counsel at his
preliminary hearing on a capital murder charge, because the denial
of counsel at the preliminary hearing was harmless error.
Page 479 U.S.
996 , 997
I
Petitioner Donald Wayne Thomas was convicted of murder and
sentenced to death after jury trial. The State of Georgia charged
petitioner, who was then nineteen years old, with the murder of a
nine-year-old boy. At the preliminary hearing held ten days after
petitioner's arrest, petitioner requested an opportunity to retain
private counsel, indicating that he did not wish to be represented
by the public defender. The court denied petitioner's request,
excused the public defender, and held the preliminary hearing in
the absence of any defense counsel. The State's main witness, a
fifteen-year-old mentally retarded girl, then testified without
cross-examination that petitioner had told her he had committed the
murder, and had shown her the body. This testimony differed in
various material respects from the later testimony given by this
witness at trial.
On direct appeal from petitioner's subsequent conviction, the
Georgia Supreme Court affirmed the conviction and sentence. Thomas
v. State, 245 Ga. 688, 266 S.E.2d 499 (1980). This Court granted
certiorari, vacated the sentence of death, and remanded for
reconsideration in light of Godfrey v. Georgia,
446 U.S. 420 (1980).
Thomas v. Georgia, 449 U.S. 988 (1980). On remand, the Georgia
Supreme Court reinstated the death sentence, without benefit of
further briefing or oral argument. Thomas v. State, 247 Ga. 233,
275 S.E.2d
318, cert. denied, 452 U.S. 973d 984 (1981). Having exhausted
in state post-conviction proceedings claims of ineffective
assistance of counsel and prosecutorial misconduct at the
sentencing phase of the trial, petitioner's counsel brought a
federal habeas corpus action raising those issues.
During the pendency of the federal petition, counsel, who had
not represented petitioner at trial, first discovered the
preliminary hearing transcript in the files of the public
defender's office, and realized that petitioner had been denied
counsel at his preliminary hearing. Counsel notified the District
Court that Thomas would move to amend his federal habeas petition
as soon as the new claim could be presented to the state courts for
exhaustion. Relief on this claim was denied in new state
proceedings, and petitioner's counsel moved to amend the federal
petition. The District Court vacated petitioner's death sentence on
the ground that petitioner had not received effective assistance of
counsel at the sentencing phase of his trial, but denied the motion
to amend the petition as untimely. As an alternative ground of
decision, the District Court also held that even if the claim were
timely pre-
Page 479 U.S.
996 , 998
sented, the denial of counsel at the preliminary hearing had
been harmless error.
Both parties appealed from the District Court's order. The Court
of Appeals affirmed.
796 F.2d
1322 (CA11 1986). On the denial of counsel claim, the Court of
Appeals adopted the District Court's alternative ground, holding
that "[t]he prosecution has carried its burden of persuading this
Court that, even if constitutional error was established, the error
was harmless." Id., at 1326. Finding that "Thomas' [trial] counsel
had access to the transcript of the preliminary hearing," "knew the
nature of the State's case," and "sought and received early
psychiatric examinations and evaluations on Thomas," the Court of
Appeals concluded that "Thomas was not prejudiced by his counsel's
absence at the preliminary hearing." Id., at 1327.
II
It has been settled for more than half a century that a
defendant facing capital charges is entitled to the assistance of
counsel. Powell v. Alabama,
287 U.S. 45 (1932). The
right to counsel, it was then recognized, is not merely a right to
trial counsel, but a right to the assistance of counsel in
preparing a defense throughout the period from arraignment to
trial; defendants are "as much entitled to such aid during that
period as at the trial itself." Id., at 57. Our recognition of the
right to counsel has substantially increased in the period since
Powell was decided. See, e.g., Argersinger v. Hamlin,
407 U.S. 25 (1972); Gideon
v. Wainwright,
372
U.S. 335 (1963); Johnson v. Zerbst,
304 U.S. 458 (1938). It
is astonishing to me that the Court of Appeals so readily
determined, despite our repeated holdings to the contrary, that it
is not per se constitutional error to deny the assistance of
counsel to a defendant whose life the State intends to take.
In support of its conclusion that the denial of counsel in the
preliminary hearing of a capital prosecution can be harmless error,
the Court of Appeals relied upon Coleman v. Alabama,
399 U.S. 1 (1970), in which
this Court remanded for consideration of harmless error under
Chapman v. California,
386 U.S. 18 (1967), the
denial of counsel at a preliminary hearing. This reliance is
fundamentally misplaced, for Coleman was not a capital case. As
Chief Justice Burger stated for the Court in Holloway v. Arkan-
Page 479 U.S.
996 , 999
sas,
435 U.S.
475, 489, 1181 (1978), "when a defendant is deprived of the
presence and assistance of his attorney, either throughout the
prosecution or during a critical stage in, at least, the
prosecution of a capital offense, reversal is automatic." *
Our recent cases make clear that, contrary to the Court of
Appeals' conclusion below, denial of counsel at any critical stage
of a criminal prosecution is per se constitutional error. "Actual
or constructive denial of the assistance of counsel altogether is
legally presumed to result in prejudice." Strickland v. Washington,
466 U.S.
668, 692, 104 S. Ct. 2052, 2067 (1984). "The presumption that
counsel's assistance is essential requires us to conclude that a
trial is unfair if the accused is denied counsel at a critical
stage of his trial." United States v. Cronic,
466 U.S.
648, 659, 2047 ( 1984) (footnote omitted). Petitioner's capital
trial was unfair for precisely this reason. The Court of Appeals'
casual conclusion that "[c] ounsel could not have revealed defects
in the State's case so great that the magistrate would have refused
to bind the petitioner over to the State's custody," 796 F.2d, at
1327, is nothing more than speculation, of a kind which the
Constitution will not countenance. Mere recitation of the words
"harmless error" is not a constitutionally sufficient basis on
which to permit the State to deny the assistance of any lawyer at
all to a defendant against whom the State is seeking the death
penalty.
I dissent from the denial of the petition for certiorari.
Footnotes
[
Footnote *] It is not open to
question that the preliminary hearing held below was a "critical
stage" in petitioner's prosecution. See Coleman v. Alabama,
399 U.S. 1, 9-10,
2003-2004 (1970).
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