Dist. Ct. erred in denying defendant’s habeas petition challenging his Wisc. first-degree murder conviction on ground that state-court denied his 6th Amendment right to counsel by conducting ex parte, in camera hearing on defendant’s proposed provocation defense that had potential of reducing any conviction to second-degree murder, where state court itself questioned defendant on his proposed defense without allowing defendant’s trial counsel to participate in said hearing, and where state court eventually precluded defendant from presenting evidence of said provocation during his trial. Defendant’s trial counsel, who witnessed said hearing, should have been allowed to participate in said hearing because said hearing involved “critical” stage of pretrial proceeding that had serious potential to settle defendant’s fate. Moreover, lack of counsel’s participation was prejudicial since defendant, at best, presented only incoherent account of circumstances that could have supported provocation defense, which defendant claimed was based on fact that wife/victim had emotionally and physically abused him throughout his marriage and had taunted him with claims that his wife had affair with another individual and had told him that his children were not his and that she would take steps to ensure that he never saw his children again. Fact that both trial counsel and prosecutor agreed to format of hearing did not require different result. Dissent argued, among other things, that instant ex parte hearing did not constitute critical stage of criminal proceeding for 6th Amendment purposes because prosecutor was not in room when hearing was conducted.
Federal 7th Circuit Court
Criminal Court
Right to Counsel