Joseph Van Patten v. Jodine Deppisch

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1276
J OSEPH V AN P ATTEN ,
Petitioner-Appellant,
v.
J ODINE D EPPISCH ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98 CV 1014—Rudolph T. Randa, Chief Judge.
____________
A RGUED S EPTEMBER 21, 2005—D ECIDED J ANUARY 24, 2006
____________
Before C OFFEY , E VANS , and W ILLIAMS , Circuit Judges.
E VANS , Circuit Judge. Telephone conversations with
clients are a big part of what lawyers do. But can using
a telephone while representing a client go too far? This
habeas case presents the novel—but, in the endless quest
for efficiency, perhaps inevitable—question: What does
the law require when a client on the other end of a tele-
phone hookup with his lawyer is standing before a judge,
about to relinquish a bevy of important constitutional
rights?
Joseph Van Patten was charged with one count of first
degree intentional homicide following a fatal shooting in
Shawano County, Wisconsin. One day in September 1995,

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2 No. 04-1276
while he was in jail awaiting trial, Van Patten got a call
from his attorney, James B. Connell. Connell informed Van
Patten that he would shortly be transported to court for a
change of plea hearing. Under an oral agreement Connell
had reached with the prosecutor, Van Patten was to enter a
plea of no contest to a charge of first degree reck-
less homicide, with a penalty enhancement for commit-
ting the offense while using a dangerous weapon. (Van
Patten would later testify that he had some questions about
the arrangement which he had been unable to raise in the
phone call with Connell.)
At the court hearing later that day, Connell “appeared”
via speakerphone. Apparently this was due not to any
last-minute problem, but simply for the convenience of
everyone’s schedules. Connell would later explain that he
had appearances in two other counties that day; that the
court was holding time for Van Patten’s trial; that wit-
nesses were waiting to know whether they would be needed;
and that “everyone wanted to get this matter concluded.”
No one asked Van Patten whether he objected to his attor-
ney’s absence from the hearing, or whether he would prefer
to reschedule the hearing to a time when his attorney could
appear in person.
As the participants huddled around a speakerphone on
the judge’s bench, the judge encouraged Van Patten to “take
all the time you need to confer with your attorney, and we
can perhaps get him on the line in a private place so you
could talk to him privately also.” The judge then informed
Van Patten that “[e]verything here is going to be on the
record.” The court quizzed Van Patten to be sure he under-
stood what was happening at the hearing, including the
constitutional guarantees—his rights to a speedy and public
trial, to trial by jury, to confront accusers, to compel
witnesses, and to not serve as a witness against him-
self—he was about to forfeit by pleading no contest. Van
Patten’s only extended comments related to whether he

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No. 04-1276 3
would be allowed a visit in jail from his daughter. Satisfied
that everything was in order, the judge accepted the plea.
Two months later, Van Patten was sentenced to a maxi-
mum term of 25 years in prison.
After retaining different counsel, Van Patten moved
to withdraw his plea, arguing that Connell’s failure to
appear in person at the change of plea hearing violated
his Sixth Amendment right to counsel. At the hearing
on that motion, Van Patten testified that he had wanted a
jury trial but felt “forced” to enter a no-contest plea because
Connell told him if he didn’t, the prosecutor would “make
sure I would die in prison.” Asked whether at any point
during the hearing he asked to speak to his attorney on a
private line, Van Patten said no, because Connell told him
to “just say yes and just go along with everything.” Van
Patten testified that he would not have entered his plea if
his attorney had been present at the hearing. The court
denied Van Patten’s postconviction motion. Claiming that
he was denied his right to the assistance of counsel, Van
Patten embarked on an odyssey of appellate proceedings.
The Wisconsin Court of Appeals analyzed Van Patten’s
Sixth Amendment claim as a complaint of ineffective
assistance of counsel under Strickland v. Washington, 466
U.S. 668 (1984). Under Strickland, a defendant must
show that his counsel’s performance fell below an objec-
tive standard of reasonableness. Id. at 688. The court’s
review of the attorney’s performance must be “highly
deferential[,] . . . indulg[ing] a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. Under Strickland’s
second prong, the defendant also bears the burden of
showing prejudice—that is, a reasonable probability that,
but for counsel’s errors, the result of the proceeding
would have been different. Id. at 694. The state appellate
court said its review of the plea hearing transcript “neither
indicates any deficiency in the plea colloquy, nor sug-

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4 No. 04-1276
1 The state appellate court did acknowledge that Connell’s
appearance by telephone violated Wis. Stat. § 967.08, which
authorizes some proceedings to be conducted by phone but
does not permit an attorney to appear by phone at a plea hearing.
But the court said this “procedural” violation was “harmless
error.”
gests that Van Patten’s attorney’s participation by tele-
phone interfered in any way with his ability to communi-
cate with his attorney about his plea.” Accordingly, the
appellate court rejected Van Patten’s right-to-counsel
claim. 1 The Wisconsin Supreme Court denied further
review.
Van Patten then brought his Sixth Amendment claim to
the district court as a habeas petition under 28 U.S.C.
§ 2254. In his recommendation to the district court, the
magistrate judge found that Connell’s telephonic appear-
ance at the plea hearing had been “effective under Strick-
land,” but “ineffective” under United States v. Cronic, 466
U.S. 648 (1984).
Cronic, which was decided on the same day as Strickland,
recognizes several circumstances where the two-pronged
Strickland test does not apply, circumstances “so likely to
prejudice the accused that the cost of litigating their effect
in a particular case is unjustified.” Id. at 658. Cronic, not
Strickland, applies where there has been a “complete denial
of counsel”; where counsel has been “prevented from
assisting the accused during a critical stage” of the prosecu-
tion; where “counsel entirely fails to subject the prosecu-
tion’s case to meaningful adversarial testing”; or under
circumstances where “although counsel is available . . . the
likelihood that any lawyer, even a fully competent one,
could provide effective assistance is so small that a pre-
sumption of prejudice is appropriate without inquiry into
the actual conduct of the [proceeding].” Id. at 659-60 and

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No. 04-1276 5
659 n.25. See also Hollenback v. United States, 987 F.2d
1272, 1275 (7th Cir. 1993) (recognizing Cronic as an “excep-
tion” to Strickland’s two-part test). A Cronic violation can
occur where the denial of assistance of counsel was either
“[a]ctual or constructive.” Strickland, 466 U.S. at 692. See
also Siverson v. O’Leary, 764 F.2d 1208, 1217 (7th Cir.
1985). Although he identified Cronic as the law governing
Van Patten’s habeas petition, the magistrate judge
believed—and recommended to the district judge (incor-
rectly, as we will explain)—that the violation could be
considered “harmless error.”
Acting on the recommendation, the district court made
two holdings that are difficult to reconcile. It endorsed
the magistrate judge’s analysis that counsel’s failure to
appear in person, albeit “harmless error,” was “a violation
of Van Patten’s Sixth Amendment right to effective assis-
tance of counsel” under Cronic. But the district court also
concluded that the state appellate court had “properly
identified and applied Strickland,” rather than Cronic, as
the appropriate legal framework. (Under Strickland, it
seems clear Van Patten would have no viable claim.)
Thus, we must resolve two questions: Did the state
court err in applying Strickland, rather than Cronic, when
it decided Van Patten’s Sixth Amendment claim? If the
state court did apply the wrong law and Van Patten was
denied assistance of counsel under Cronic, did the dis-
trict court err in applying a harmless-error analysis to
defense counsel’s failure to appear in person at the plea
hearing? We conclude that the answer to both questions
is yes.
Under the Antiterrorism and Effective Death Penalty Act
(AEDPA), a federal court may grant habeas relief from a
state court conviction if it finds the state court’s adjudica-
tion of a constitutional claim “resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the

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6 No. 04-1276
2 The state argues that because the Supreme Court has never
decided a case involving counsel’s participation in a plea hear-
ing by telephone, the state appellate court’s application of
Strickland to this case did not “result[ ] in a decision that was
contrary to . . . clearly established federal law,” and thus a federal
court may not grant habeas relief. This argument misapprehends
the AEDPA regime. “Factual contexts of cases may be regarded as
‘materially indistinguishable’ because their legal implications are
clearly the same, notwithstanding that the facts themselves are
significantly different.” R ANDY H ERTZ & J AMES S. L IEBMAN ,
F EDERAL H ABEAS C ORPUS P RACTICE AND P ROCEDURE 1439 n.24
(4th ed. 2001) (citing Ramdass v. Angelone, 530 U.S. 156, 180
(O’Connor, J., concurring)). One of the most obvious ways a state
court may render a decision “contrary to” the Supreme Court’s
precedents is when it sets forth the wrong legal framework. See
Williams, 529 U.S. at 397-98 (state court’s decision was contrary
to clearly established law because it mischaracterized the
appropriate rule for evaluating defendant’s Sixth Amendment
claim). Moreover, a state court decision is also an “unreasonable
application of” Supreme Court precedent if it “refuses to extend
[an established legal] principle to a new context where it should
apply.” Id. at 407. Thus, if the state court got its decision wrong
because it identified and applied the wrong precedent—as we will
explain it did in this case—a federal court may award collateral
relief.
Supreme Court.” 28 U.S.C. § 2254(d)(1). A state court
decision is “contrary to” Supreme Court precedent “if the
state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law” or “if the state
court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives at a
result opposite to [that of the Supreme Court].” Williams v.
Taylor, 529 U.S. 362, 405 (2000). 2 We review the district
court’s decision rejecting Van Patten’s habeas petition de
novo. Searcy v. Jaimet, 332 F.3d 1081, 1087 (7th Cir. 2003).
The Sixth Amendment’s right-to-counsel guarantee
recognizes “the obvious truth that the average defendant
does not have the professional legal skill to protect himself

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No. 04-1276 7
when brought before a tribunal with power to take his life
or liberty.” Johnson v. Zerbst, 304 U.S. 458, 462-63 (1938).
“Of all the rights that an accused person has, the right to be
represented by counsel is by far the most pervasive for it
affects his ability to assert any other rights he may have.”
Cronic, 466 U.S. at 654 (citation omitted). Thus, a defen-
dant requires an attorney’s “guiding hand” through every
stage of the proceedings against him. Powell v. Alabama,
287 U.S. 45, 53 (1932); Cronic, 466 U.S. at 658. It is well-
settled that a court proceeding in which a defendant enters
a plea (a guilty plea or, as here, a plea of no contest) is a
“critical stage” where an attorney’s presence is crucial
because “defenses may be . . . irretrievably lost, if not then
and there asserted.” Hamilton v. Alabama, 368 U.S. 52, 54
(1961). See also White v. Maryland, 373 U.S. 59, 60 (1963);
United States ex rel. Thomas v. O’Leary, 856 F.2d 1011,
1014 (7th Cir. 1988). Indeed, with plea bargaining the norm
and trial the exception, for most criminal defendants a
change of plea hearing is the critical stage of their prosecu-
tion.
In deciding whether to dispense with the two-part
Strickland inquiry, a court must evaluate whether the
“surrounding circumstances make it unlikely that the
defendant could have received the effective assistance of
counsel,” Cronic, 466 U.S. at 666, and thus “justify a
presumption that [the] conviction was insufficiently reliable
to satisfy the Constitution,” id. at 662. In this case, al-
though the transcript shows that the state trial judge did
his best to conduct the plea colloquy with care, the arrange-
ments made it impossible for Van Patten to have the
“assistance of counsel” in anything but the most perfunctory
sense. Van Patten stood alone before judge and prosecutor.
Unlike the usual defendant in a criminal case, he could not
turn to his lawyer for private legal advice, to clear up
misunderstandings, to seek reassurance, or to discuss any
last-minute misgivings. Listening over an audio connection,

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8 No. 04-1276
counsel could not detect and respond to cues from his
client’s demeanor that might have indicated he did not
understand certain aspects of the proceeding, or that he
was changing his mind. If Van Patten wished to converse
with his attorney, anyone else in the courtroom could
effectively eavesdrop. (We assume the district attorney
would balk if he were expected to conduct last-minute
consultations with his staff via speakerphone in open court,
“on the record,” with the defendant taking in every word.)
No advance arrangements had been made for a private line
in a private place, and even if one could “perhaps” have
been provided, it would have required a special request by
Van Patten and, apparently, a break in the proceedings.
In short, this was not an auspicious setting for someone
about to waive very valuable constitutional rights.
Considering all the ways he was foreclosed from receiving
an attorney’s guidance and support at his hearing, it
is clear to us that Van Patten’s case must be resolved under
Cronic. Thus, the state appellate court arrived at a decision
contrary to the Supreme Court’s precedent when it analyzed
the case under Strickland (indeed, the state court’s opinion
never even acknowledges Cronic), and the district court
erred when it endorsed that decision. Properly analyzed,
Van Patten’s claim is not a complaint about his attorney’s
effectiveness; rather, it points to a structural defect in the
proceedings against him. When a defendant is denied
assistance of counsel at a stage where he must assert or
lose certain rights and defenses, the error “pervade[s] the
entire proceeding.” Satterwhite v. Texas, 486 U.S. 249, 256
(1988) (citing White and Hamilton). See also Bell v. Cone,
535 U.S. 685, 695-96 (2002) (a trial is “presumptively
unfair . . . where the accused is denied the presence of
counsel at ‘a critical stage’ ” which holds “significant
consequences for the accused”) (citations omitted); Cronic,
466 U.S. at 659 (same).

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No. 04-1276 9
Van Patten does not allege, for example, that his attorney
botched his defense through bad legal judgments, or
misinformed him of the ramifications of his plea. Rather,
the arrangements under which the hearing was con-
ducted, with defendant and counsel unable to see or
communicate privately with each other, prevented Van
Patten from receiving the assistance that the Sixth Amend-
ment guarantees. However acceptable an attor-
ney’s performance may otherwise be by Strickland stan-
dards, it is beside the point if the attorney is prevented by
the design of the proceeding from providing the full bene-
fit of his skills when his client needs them most. Al-
though the record may make the proceeding appear to have
been routine and proper, we cannot know what Van Patten
might have done had he been treated like any
other defendant with counsel at his side. Under such unique
circumstances, a plea cannot meet the constitutional
requirement that it be intelligent and voluntary. See Brady
v. United States, 397 U.S. 742, 749 (1970) (voluntariness of
a plea “can be determined only by considering all of the
relevant circumstances surrounding it”); White, 373 U.S. at
60 (when defendant enters a plea outside the presence of
counsel, “we do not stop to determine whether prejudice
resulted: ‘Only the presence of counsel could have enabled
[the] accused to know all the defenses available to him and
to plead intelligently.’ ” (quoting Hamilton, 368 U.S. at 55)).
Getting the attorney on speakerphone may have been
better than nothing. But the Sixth Amendment re-
quires more than “formal compliance” with its guaran-
tees. Cronic, 466 U.S. at 654 (citation omitted). See also
Childress v. Johnson, 103 F.3d 1221, 1231 (5th Cir. 1997)
(applying Cronic where defense counsel in a plea hearing
functioned as little more than “standby counsel”). And so we
think it problematic to treat assistance of counsel as
a formality to be overcome through creative use of tech-
nology so that everyone can keep their calendars in order.

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10 No. 04-1276
The state argues against applying Cronic here because
plea hearings do not involve presentation of evidence and,
in the state’s view, simply formalize bargains previously
negotiated by the prosecution and defense. “[D]efense
counsel’s adversarial-testing role essentially disappears” in
a plea hearing, the state reasons in its brief, and
thus a telephone appearance is good enough. But the state’s
conception of counsel’s role is too limited.
Defense counsel should be fully engaged at a plea hearing
no less than at trial because in both settings, “the accused
[is] confronted with both the intricacies of the law and the
advocacy of the public prosecutor.” Cronic, 466 U.S. at 654
(quoting United States v. Ash, 413 U.S. 300, 309 (1973)). See
also Childress, 103 F.3d at 1227 (“A defendant is constitu-
tionally entitled to the active assistance of counsel at a plea
hearing.”) (emphasis added). Defense counsel must also
ensure that the prosecutor fully performs his end of what-
ever deal has been struck. See Santobello v. New York, 404
U.S. 257, 262 (1971) (“[W]hen a plea rests in any significant
degree on a promise or agreement of the prosecutor . . . such
promise must be fulfilled.”) By the state’s logic, if a plea
hearing is merely pro forma, the state could be represented
as effectively by a clerk or paralegal as by one of its profes-
sional prosecutors. But however routine such hearings
may have become, the Supreme Court has not revised its
view that entering a guilty plea (or its equivalent, as here,
a plea of no contest) is “a grave and solemn act,” Brady, 397
U.S. at 748, to be treated, like all phases of the criminal
process, as a “confrontation between adversaries,” Cronic,
466 U.S. at 657.
Physical presence is necessary not only so that coun-
sel can keep an eye on the client and the prosecutor, but
so the court can keep an eye on counsel. Even if a private
line had been arranged for Van Patten to speak with his
attorney, we would regard long-distance lawyering in
critical-stage proceedings as inadequate to safeguard

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No. 04-1276 11
3 At the plea hearing, the judge instructed the defendant: “Mr.
Van Patten, we are going to put your attorney on the
speakerphone, so I want you standing up a little closer to
make sure he can hear you. I think you will be able to hear
him, but sometimes they cannot hear you.”
4 Even if we assume that busy attorneys never do such things
during conference calls with their clients, what might we be asked
to accept next? Offshore defense-attorney call centers? Letting the
defendant confer with counsel via Blackberry?
effective assistance of counsel and the integrity of the
judicial process. This point underscores why Cronic, not
Strickland, applies here.
Over a phone line, it would be all too easy for a lawyer
to miss something. For example, she might prejudice her
client by failing to make some important point during the
proceedings and later claim it was a tactical decision (in
which case Strickland mandates a large benefit of the
doubt), when in reality she wasn’t paying attention. Or an
attorney might realize he had neglected to inform the client
of some crucial piece of information but be tempted to let it
pass rather than broadcasting the issue to everyone in the
room. Cf. Ivy v. Caspari, 173 F.3d 1136 (8th Cir. 1999)
(defendant’s guilty plea was not knowing and voluntary
where counsel had failed to provide adequate explanation
of elements of offense and other crucial information). On
collateral review, courts can rarely assess an attorney’s
performance from the printed record alone. Even assuming
that counsel could hear and understand every word (and
how many people who have experienced speakerphones or
conference calls would stake their liberty on that assump-
tion?), 3 the client or the judge might never know whether
the defense attorney was hanging on every word, reading
documents in another case, surfing the web, or falling
asleep. 4 Cf. Burdine v. Johnson, 262 F.3d 336 (5th Cir.
2001) (en banc), cert. denied sub nom. Cockrell v. Burdine,

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12 No. 04-1276
535 U.S. 1120 (2002) (under Cronic, defendant was denied
assistance of counsel when his attorney repeatedly dozed
during trial).
Having decided that the circumstances surrounding
Van Patten’s hearing justify a presumption of prejudice
under Cronic, we must address the district court’s find-
ing that defense counsel’s constructive absence was none-
theless harmless error.
In his recommendation, the magistrate judge relied on
two decisions, United States v. Morrison, 946 F.2d 484, 503
(7th Cir. 1991), and Siverson v. O’Leary, 764 F.2d 1208 (7th
Cir. 1985), where we said counsel’s absence in some circum-
stances might be presumptively prejudicial yet still be
subject to a harmless-error analysis. In Siverson, a state
habeas case, the defendant’s counsel was absent when the
jury verdict was returned. In Morrison, a lengthy multi-
defendant federal drug conspiracy trial, the lawyer for one
of the defendants was excused (with his client’s permission)
from attending three court sessions that did not involve the
offering of evidence against the defendant. We viewed these
situations as trial errors subject to a harmless-error
analysis.
But Siverson and Morrison also recognized that harmless-
error inquiry would not apply where the denial of counsel
contaminated the entire proceeding. See Morrison, 946 F.2d
at 503-04; Siverson, 764 F.2d at 1217 n.6. This distinction
is underscored by several Supreme Court decisions, which
have made clear that while some Sixth Amendment viola-
tions are susceptible to harmless-error analysis, see Arizona
v. Fulminante, 499 U.S. 279, 306-07 (1991) (citing exam-
ples), “structural defects” are not, id. at 309. See also
Penson v. Ohio, 488 U.S. 75, 88 (1988) (denial of counsel
under the meaning of Cronic “can never be considered
harmless error”); Satterwhite, 486 U.S. at 256-57 (explain-
ing the difference between trial error and “violations that

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No. 04-1276 13
pervade the entire proceeding”); Patrasso v. Nelson, 121
F.3d 297, 305 (7th Cir. 1997) (remanding for grant of a
habeas petition without harmless-error analysis after
finding attorney’s performance at defendant’s sentencing
hearing was “so lacking that it invites application of Cronic
rather than Strickland”). Because the physical absence of
counsel from a hearing where a defendant gives up his most
valuable constitutional rights and admits his guilt to a
serious charge is a structural defect, the district court erred
in finding that the error could be analyzed under a harm-
less standard.
Although counsel-by-conference call probably could not
have been imagined by the Supreme Court in 1938, it
is worth remembering that Justice Sutherland in Powell—
as well as Justice Stevens in Cronic more than a half-
century later—invoked the metaphor of the “guiding
hand” of counsel which a defendant requires at every
step. Similarly, we have observed that “[t]he Sixth Amend-
ment . . . guarantees more than just a warm body to stand
next to the accused.” Thomas, 856 F.2d at 1015. In this
case, Van Patten didn’t get even a warm body.
The judgment of the district court is REVERSED and the
case is R EMANDED for the entry of an order granting the
petition for a writ of habeas corpus. On the subsequent
remand to the Circuit Court for Shawano County, the
proceedings against Mr. Van Patten can resume with a plea
of not guilty in place.

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14 No. 04-1276
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-24-06

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