Delaware Supreme Court: ‘The Sixth Amendment Demands More Than the Presence the Morning of Trial of a Warm Body With a Law Degree’
by Douglas Ankney
The Supreme Court of Delaware ruled that an attorney’s limited pretrial contact deprived a defendant of effective assistance of counsel.
Everett Urquhart was charged with numerous felonies, including first-degree robbery. A witness saw the vehicle that had been loaned to Urquhart fleeing the area at the time of the robbery. On surveillance video, the robber was wearing a black, hooded North Face jacket. Police had cellphone images showing Urquhart wearing a matching jacket.
Urquhart was appointed a public defender because he couldn’t afford an attorney. During the nearly four months between arraignment and trial, Urquhart received one phone call from his trial counsel, telling him discovery was ongoing.
Urquhart also received a letter with an incomplete discovery that included neither the cellphone evidence nor surveillance video.
On the morning of trial, the State offered Urquhart a five-year plea deal, which he refused. Trial counsel then showed Urquhart 64 photos from the cellphone and surveillance video. Before jury selection, Urquhart expressed to the trial court his confusion and frustration. He repeatedly stated he did not understand what was going on. More than 10 times, he asked for help. He stated he was seeing pictures for the first time but did not know from where they came.
Trial counsel informed the court that he had not previously met with Urquhart. He explained that he was involved in a capital murder trial when Urquhart was arrested, and he went from that trial into another and then another. He confirmed Urquhart had not previously seen the State’s photographic evidence.
When the trial court then asked if Urquhart wanted a continuance, Urquhart answered by questioning how “this stuff” could be “allowed in.” The court rephrased, asking Urquhart if he wanted the trial delayed. Urquhart answered, “No, sir” then added, “I don’t understand nothing what’s going on. I’m asking for help.” A three-day trial commenced, and Urquhart was convicted of all charges. He was sentenced to 43 years suspended after 15 years served. His conviction was affirmed on appeal.
The trial court appointed Urquhart new counsel for postconviction proceedings. Urquhart, relying on United States v. Cronic, 466 U.S. 648 (1984), claimed he was deprived of his right to counsel because his attorney failed to meet with him and prepare for trial. The trial court found Urquhart was not completely deprived of counsel and denied his postconviction motion. Urquhart appealed.
The Delaware Supreme Court observed, “The Sixth Amendment to the United States Constitution guarantees that ‘in all criminal prosecutions the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.’” The Court further noted, “If no actual ‘Assistance for’ the accused’s ‘defence’ is provided, then the Constitutional guarantee has been violated.” Cronic. The U.S. Supreme Court has identified three situations implicating the right to counsel where the likelihood of prejudice to an accused is so high that it is presumed. Id. The first, and most obvious, is the complete denial of counsel at a critical stage of the proceedings. Id. A critical stage includes the pretrial process. Deputy v. State, 500 A.2d 581 (Del. 1985). The second situation is when “counsel fails to subject the prosecution’s case to meaningful adversarial testing.” Cronic. The third is when “counsel is called upon to render assistance under circumstances where competent counsel very likely could not....” Id.
The Court noted that counsel contacted Urquhart only twice after arraignment. “The most critical period of the proceedings” is “the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation [are] vitally important.” Powell v. Alabama, 287 U.S. 45 (1932). The Court further noted that in Mitchell v. Mason, 325 F.3d 732 (6th Cir. 2003), the Sixth Circuit found the defendant was completely denied counsel when the trial court repeatedly ignored his pleas for counsel to prepare a defense because his attorney was suspended for the month immediately before trial, met with the defendant for no more than six minutes during the seven-month period before trial, and failed to consult with the defendant to investigate. Similarly, Urquhart’s requests for help were ignored; his attorney was unavailable during the months before trial due to other trials; and his attorney did not consult with him for even six minutes. The Court said, “Thus, following Mitchell would lead to the conclusion that Urquhart was completely denied counsel under Cronic.”
Trial counsel had no advance discussion with Urquhart of trial strategy; which witnesses to call; how to respond to the State’s evidence; whether Urquhart should testify; and whether to accept a plea. The Court quoted Cronic, saying, “[S]ome situations ma[k]e it so unlikely that any lawyer could provide effective assistance that ineffectiveness is properly presumed without inquiry into actual performance at trial.”
Citing the manifest injustice exception, the Court also found counsel ineffective under the familiar standard of Strickland v. Washington, 466 U.S. 668 (1984), even though it was not briefed on appeal. Counsel had performed deficiently by failing to discuss the plea offer, and Urquhart was prejudiced because he rejected the offer due to counsel’s error.
Accordingly, the Court reversed and remanded to the trial court. But the Court left it to the trial court whether to grant a new trial or to allow the State and Urquhart to fashion another remedy, such as re-offering the plea deal. See: Urquhart v. State, 2019 Del. LEXIS (2019).
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Related legal case
Urquhart v. State
|Cite||2019 Del. LEXIS (2019)|
|Level||State Supreme Court|