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Supreme Court of Delaware: Lawyer’s Mere Presence the Day of Trial Violates Sixth Amendment Under Cronic Standard

by Chad Marks

The Supreme Court of Delaware held that a defendant’s Sixth Amendment right to assistance of counsel was violated by trial counsel’s near-total absence during the pretrial stage of proceedings.

Everett Urquhart found himself on the wrong side of the law when he was arrested for the armed robbery of a grocery store in Wilmington, Delaware. Three separate public defenders represented Urquhart during the pretrial phase of the case. A fourth public defender was appointed to represent him during the trial. The problem with that was Urquhart had not met with his trial attorney until the morning trial was to begin. Consequently, it was also the first time Urquhart had seen the State’s evidence against him. 

After arraignment and up to the start of trial, Urquhart had only three contacts with his defense counsel: (1) counsel told him by phone that he was busy with another trial and that “discovery is still forth coming,” (2) counsel sent a duplicate of the State’s earlier discovery responses that Urquhart had already received, and (3) different counsel represented Urquhart at the final case review. At the case review, the State offered a plea deal, but Urquhart rejected it since he hadn’t yet seen the State’s evidence against him. 

The trial commenced in which a jury found Urquhart guilty of all charges. The court subsequently imposed a 15-year term of imprisonment. Those convictions were affirmed on appeal.

Urquhart moved for post-conviction relief, arguing that his trial counsel’s absence prior to the trial denied him his Sixth Amendment right to the assistance of counsel. The superior court denied that motion, and Urquhart then sought review by the Supreme Court of Delaware.

The Court found that the superior court erred in denying relief. The Court explained that a defendant’s Sixth Amendment right to assistance of counsel in a serious felony trial “demands more than the presence the morning of trial of a warm body with a law degree.”

In support of its decision, the Court did something that is seldom seen—it found that the public defender’s office was ineffective in its representation of Urquhart under both United States v. Cronic, 466 U.S. 648 (1984), and Strickland v. Washington, 466 U.S. 668 (1984), two cases decided by the U.S. Supreme Court on the same day. Under Cronic, a defendant is not required to show prejudice from counsel’s deficient performance; instead, it is simply presumed.

The Supreme Court in Cronic recognized that when the accused is completely denied counsel at a critical stage of the judicial proceedings the accused is excused from demonstrating prejudice. Strickland, on the other hand, requires the defendant to prove that he or she was prejudiced by counsel’s deficient performance.

The Court rejected the superior court’s position that “the mere presence of counsel” satisfies Cronic, “regardless of the degree of counsel’s effectiveness.” Instead, the Court concluded that the three non-substantive interactions between Urquhart and his defense counsel prior to trial constitutes the absence of legal representation during the critical pretrial stage under Cronic.

Additionally, the Court went even further, making a second finding that he also was denied his Sixth Amendment right to effective assistance of counsel under Strickland as Urquhart was also prejudiced by counsel’s performance. The Court found that pretrial ineffectiveness prejudiced him during the plea negotiation stage where the State made an offer of a five-year prison sentence.

The Court stated, “Here, we think it is obvious that had the objective circumstances—the evidence the state was going to present, the length of time Urquhart faced if he went to trial and was convicted, and the likelihood of an acquittal—been the subject of professionally adequate consultation between client and counsel, there is a ‘reasonable probability’ that Urquhart would have accepted the plea.”

Accordingly, the Court reversed the superior court’s judgment and remanded the case to the superior court to decide whether a new trial should be ordered, or the State and the defendant agree on another remedy.  See Urquhart v. State, 203 A.3d 719 (Del. 2019). 

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Urquhart v. State



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