Schmidt v. Foster

Dist. Ct. did not err in denying defendant’s habeas petition challenging his first-degree murder conviction, under circumstances where trial court rejected defendant‘s provocation defense, after conducting ex parte examination of defendant under circumstances where defense counsel was directed to remain silent. While Ct. of Appeals observed that trial courts should not normally hold ex parte hearings in which defense counsel are silenced, no Supreme Ct. case has addressed whether trial court’s direction to counsel to remain silent under instant circumstances constituted denial of his right to counsel. As such, Ct. of Appeals could not say that instant procedure was unreasonable application of Supreme Ct. precedent, since (1) Supreme Ct. case law required showing that there was complete denial of counsel during critical stage of prosecution; and (2) defendant failed to make such showing, since defense counsel filed notice of provocation defense, argued for its application during court hearings, briefed law and submitted offer of proof that was used during ex parte hearing. Also, defendant was able to consult with his counsel immediately prior to ex parte examination of defendant and during recess in said examination. (Dissent filed.)