I don't follow other circuit courts of appeal closely enough to know for sure whether the U. S. Court of Appeals for the Sixth Circuit is particularly divided over the handling of habeas corpus petitions, but it sure seems that way. The latest evidence is two opinions issued by two different divided panels yesterday.

In Van v. Jones, a panel addressed the question of first impression whether a Michigan defendant's consolidation hearing is a "critical stage" of the criminal proceedings against him, such that the absence of counsel requires the issuance of a writ of habeas corpus. Chief Judge Danny Boggs, writing for the majority, answered the question in the negative, after an extensive review of the "critical stage doctrine" and how it could apply to a consolidation hearing.

It is settled that a complete absence of counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment violation warranting reversal of a conviction, a sentence, or both, as applicable, without analysis for prejudice for harmless error. . . . But what is a critical stage?

If the consolidation hearing was a critical stage because Van's counsel was entirely absent, there is no need to make a showing of prejudice. Whether it was a critical stage depends on whether there was a reasonable probability that Van's case could suffer significant consequences from his total denial of counsel at this stage Perhaps the best way of reaching an answer to that query is to ask whether Van had any opportunity, subsequent to the consolidation hearing, to recover or exercise whatever privilege he lost at the hearing.

Here, it seems that the balance tips on the side of this being a procedural step where counsel's absence would, as a structural matter, be unlikely to be necessary to prevent incurable prejudice. This is not to say, however that counsel's action in not appearing for a noticed hearing on the motion to consolidate was professional or excusable, nor that, in an appropriate case, a claim for ineffective assistance of counsel might succeed. However, Van's claim here is not couched in terms of ineffective assistance of counsel, nor, on this record, is it likely that he could demonstrate prejudice.

Judge Cook wrote a concurring opinion noting that "in the abstract, consolidation surely could expose a defendant to a risk of prejudice," but that such prejudice was not possible in this case because, "under Michigan law, Van could not have avoided consolidation."

Judge Moore dissented, arguing that "a defendant who is unrepresented by counsel at a consolidation hearing is exposed to a serious risk of prejudice." Judge Moore noted that, because "joint trials are often favored at law," counsel is necessary to counterbalance a trial judge's potential tendency to favor consolidation. Thus, Moore would have held that a consolidation hearing is always a critical stage of the pretrial process, and the absence of counsel at such a hearing is per se reversible error.

In Benge v. Johnson, the court considered Michael Benge's habeas petition challenging his conviction and death sentence for aggravated murder and aggravated robbery. The panel easily disposed of six of Benge's claims, but divided on the seventh, "whether a jury instruction incorrectly precluded the jury from considering the affirmative defense of voluntary manslaughter."

Judge Gilman, joined by Judge Rogers, rejected Benge's claim.

In attempting to excuse his procedural default, Benge must demonstrate "that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner's case." [citation omitted]. Because we conclude that Benge has failed to show the actual prejudice necessary to excuse his procedural default, we will assume without deciding that the district court correctly determined that the first prong of Strickland was satisfied. . . .

The dissent correctly notes that the erroneous jury instruction effectively foreclosed the possibility that the jury could have found Benge guilty of the robbery but not guilty of the murder. We also recognize, as the dissent emphasizes and as the district court itself acknowledged, that "[a] conviction for aggravated robbery does not as a matter of law preclude an affirmative defense of provocation with regard to a related murder charge." . . But the dissent fails to persuade us that there is a reasonable probability that a properly instructed jury would have concluded that Benge met this affirmative burden. . . .

What Benge could have done, however, is irrelevant at this stage in the proceedings. We must be able to say that a reasonable probability exists that a properly instructed jury would have concluded that Benge had shown provocation by a preponderance of the evidence. Given that Benge's provocation defense rested almost exclusively on his own extremely dubious and at times inconsistent testimony, we are unable to so conclude.

Judge Martin dissented.

Although I agree with the bulk of the majority's analysis, I believe that Benge has presented one meritorious claim that should entitle him to a writ of habeas corpus. When Benge's attorney failed to object to the jury instructions regarding the lesser included offense of voluntary manslaughter, resulting in a jury charge that the Ohio Supreme Court later acknowledged was erroneous, he failed to provide Benge effective assistance of counsel. Because I believe a habeas writ should issue regarding that claim under Strickland v. Washington, 466 U.S. 668 (1984), I respectfully dissent.

UPDATE: Decision of the Day also profiles these two cases here. (Also note that DotD has a new address.)