Pretrial denial of right to counsel still subject to harmless error analysis

People v Lott, 2005 NY Slip Op 08490, 2005 WL 3020529

On the heels of People v Wardlaw, the Fourth Department this term reasserted the holding that the denial of a defendant's right to counsel at suppression is subject to constitutional harmless error analysis. You can read my previous posts on Wardlaw here, here and here. In a nutshell: in Wardlaw, the Fourth Department held (for the first time in New York) that the denial of a defendant's right to counsel could be subject to harmless error analysis if the deprivation occurred at a pretrial stage. The Court of Appeals had previously given some hints of tracking in that direction, but had never gone as far as the Fourth did in Wardlaw. The Court of Appeals has granted leave to hear Wardlaw, so we will see soon enough if the Appeals agree with Wardlaw, but in the meantime the Fourth Department, by this term's decision in People v Lott shows no sign of retreating.

Mr. Lott ended up luckier than Mr. Wardlaw--the Court in Lott held, after applying the harmless error analysis, that the deprivation of Mr. Lott's right to counsel was not harmless because the defendant (while unrepresented) filed a notice of alibi that was at odds with the proof at trial. This was enough for the Court to conclude the deprivation of Mr. Lott's right to counsel was not harmless: "the defense was impaired to a significant extent by the pretrial denial of the right to counsel, particularly as a result of defendant's service of the pro se notice of alibi. We thus conclude that there is a reasonable possibility that the error contributed to defendant's conviction." (People v Lott, 2005 WL 3020529.)

The Lott decision illustrates why the Fourth Department's rule in Wardlaw is such a potentially damaging one--it comes dangerously close to establishing a counter-intuitive standard, i.e. if the defendant is overwhelmingly guilty, the trial court may deny that defendant an attorney at any pretrial stage and have the error be excused as harmless. But are not the most palpably guilty those who most need an attorney? There is a reason that some fundamental rights have been traditionally pushed beyond the reach of the harmless error doctrine. But as long as Wardlaw stands, the right to counsel (at least at a pretrial stage) will not be protected.