Tuesday, April 04, 2006

CA: harmless error analysis applicable to denial of right to counsel at suppression hearing

People v Wardlaw, __ NY3d __ [available here]

The Court of Appeals (in a decision by R.S. Smith)has affirmed the Fourth Department on another important issue of first impression today, holding in People v Wardlaw that the deprivation of right to counsel at a suppression hearing is subject to harmless error analysis. I have posted on the Fourth Department's decision in this case here,here, and here. The Court of Appeals' majority opinion adopts the reasoning of the Fourth Department in whole--even if the statements challenged at the suppression hearing had been suppressed, the remaining proof of defendant's guilt was overwhelming and therefore the outcome could not have been different if Wardlaw had a lawyer at his suppression hearing. (See Wardlaw, __ NY3d at __ ["it is clear beyond reasonable doubt that any new trial would have the same result, even if defendant's statements were excluded from evidence . . .[t]hus a new hearing would serve no purpose."].) Therefore, the error can be dismissed as harmless.

The dissenters argue that the most palpably guilty defendants are the ones who most need the assistance of an attorney, and the denial of such assistance should not be dismissed later as harmless because a defendant is very, very guilty. From Judge Ciparick's dissent (joined by Chief Judge Kaye and Judge G.B. Smith):

It is a sad day when the Court of Appeals deviates from its heretofore robust protection of the right to counsel as conceived under the State's Constitution solely because of the proof of guilt and the heinousness of the crimes alleged. Contrary to our jurisprudence, the majority has focused on indicia of "overwhelming" evidence of guilt in order to apply harmless error when a defendant was deprived of the right to counsel at a critical stage of the proceeding--a pre-trial suppression hearing.

A defendant has a constitutionally protected right to counsel at a pre-trial suppression hearing equal to that at trial. Deprivation of that right was never before today subject to a harmless error analysis in this State. Indeed, this Court's long-established jurisprudence has repeatedly recognized the fundamental importance of legal representation to protect the balance between an accused and the prosecutorial power of the State. Were the defendant deprived of counsel at trial itself, however overwhelming the proof of guilt--DNA evidence, confession, eyewitnesses--surely no one would argue that he was not entitled to a new trial. This is not because a new trial is necessary to establish guilt, but rather because the courts must protect the fairness and integrity of our criminal justice system.

(Id at __.)

The majority answers the dissenters by noting "defendants statements, though not confessions, are significant evidence of his guilt; but that guilt was proved conclusively anyway by the DNA. When a man's semen is found in a nine-year-old girl's vagina, the evidence that he raped her is, as the Appellate Division said, 'truly overwhelming.'" (Id at __.) True enough; but is it not also true that the man whose sperm is found in the nine-year-old's vagina the man who most needs an attorney?