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American Bar Association - Defending Liberty, Pursuing Justice

March 2008

Vol. 4, No. 2



Just Phoning It In: Not a Good Idea

Have you ever had the brilliant idea that instead of actually going to court that you would instead just call your appearance in? How about making that call when your client is facing a prison sentence?

I would think most of us would agree that not standing next to our client when he or she is at a plea hearing is unthinkable. But let’s think about it as the United States Supreme Court did in Wright v. Van Patten, 552 U.S.____(2008), decided on January 7, 2008.

The defendant was attending his plea hearing at which the judge was going to be sentencing the defendant. Van Patten was originally charged with first-degree intentional homicide, but he pled no contest to a reduced charge of first-degree reckless homicide. For whatever reason, Van Patten’s attorney was not present in the courtroom during the plea hearing, but was able to take part in the hearing by way of a speaker phone.

At the hearing, the judge sentenced Van Patten to the maximum sentence of twenty-five years. Van Patten then hired other counsel and sought to withdraw his no contest plea. Van Patten claimed that his counsel’s physical absence from the plea hearing had violated his Sixth Amendment right to counsel.

While the United States Supreme Court denied the appeal of Van Patten, a close review should be conducted of the actions of an attorney and the phoning in at an important step of a criminal action.

This was a case where there obviously was not an agreement as to sentencing. We would all agree that a hearing that will determine how many years your client will spend in jail is a critical step of the litigation and one at which a defendant has a right to be represented by counsel. I think most persons would agree that an attorney would be much more effective if present at the hearing rather than on the phone somewhere. There is no way counsel a client during the course of the hearing or to observe the nuances in the courtroom if the courtroom cannot even be seen.

Attorneys have argued that, in order for them to be effective, they must be able to have their client present. This allows for the attorney and his client to write notes to each other, to discuss the issues as the case proceeds, and for the client to have some level of confidence that the attorney is there watching out for his or her best interest. If the lawyer is not present, it would seem to seriously impair the ability of the attorney to communicate with the client, the state, and the judge. It seems to suggest that the attorney simply does not have time to be present to represent his or her client.

I am somewhat surprised that this plea hearing wasn’t simply postponed until counsel could attend, but I am sure the defendant and the counsel’s concern rose to new levels when the defendant received the maximum sentence under the law.

Can competent representation be done by phone? While the lawyer may be very skilled and well informed as to the law, the ability to be as persuasive and effective when not actually before the court is up for debate. Although doing a scheduling conference by phone may be completely appropriate, your client’s freedom is not on the line during a scheduling hearing. When the question of one’s liberty is at stake, every bit of the lawyer’s skill and persuasiveness must come into play. To take a risk that you would be less effective because you are not able to attend the hearing may not be acceptable.

There is a reason that the saying suggests that a person is “just phoning it in.” It means that whatever is going on is not important enough to merit the attendance of the person. While everyone would agree that the sentencing phase of a criminal case is a critical stage of the proceeding, would they not agree that the criminal defense lawyer is a critical player in that process? I would think that none of us want one of our cases to make it to the United States Supreme Court because of our failure to make it to a hearing in person.

While the trend in our practice is that it is getting more and more difficult to make every case on our calendar, I think most of our clients feel better when they see their advocate come through the door. In my opinion, we should give them at least that level of comfort.

Brian T. Hermanson is a solo practitioner in Ponca City, Oklahoma. He has a general litigation practice with an emphasis in criminal law.

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