Sixth Circuit on Split Re Need for Automatic Reversal after Deprivation of Counsel at Competency Hearing

Per U.S. v. Ross, --- F.3d ----, 2012 WL 6734087 (C.A.6 2012):

The issue of a remedy for deprivation of counsel at a competency hearing is a question of first impression in this Circuit. However, “[i]t 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 or harmless error.” Van v. Jones, 475 F.3d 292, 311–12 (6th Cir.2007); see also French v. Jones, 332 F.3d 430, 438 (6th Cir.2003). Neither the Supreme Court nor the Sixth Circuit have considered whether a competency hearing is a “critical stage.” “However, every federal court of appeals to take up the question has answered it affirmatively.” Ronald A. Parsons, Jr., Being There: Constructive Denial of Counsel at a Competency Hearing as Structural Error Under the Sixth Amendment, 56 S.D. L.REV. 238, 242 & n. 31 (2011) (listing cases from the Third, Fourth, Eighth, Ninth, Tenth, and D.C. Circuits). We join those circuits in holding that a competency hearing is a critical stage.

Other circuits are divided, however, as to whether automatic reversal is required when there has been a deprivation of counsel at a competency hearing. Compare Appel, 250 F.3d at 217–18 (holding retrospective analysis of a defendant's competency is not an appropriate remedy for a deprivation of counsel violation), with Klat, 156 F.3d at 1264 (remanding “for an evidentiary hearing to determine whether the competency hearing could have come out differently if [the defendant] had been represented by counsel”), and United States v. Bergman, 599 F.3d 1142, 1148–49 (10th Cir.2010) (remanding to determine if the trial court could make a retroactive competency determination and, if so, to make such a determination).

We see no reason to create an exception to our established rule that complete deprivation of counsel during a critical stage warrants automatic reversal without consideration of prejudice. See Van, 475 F.3d at 311–12. It is unclear on this record whether or not standby counsel satisfied Cronic's requirement that his representation of Ross provided “meaningful adversarial testing” of Ross's competency. Accordingly, we must remand the case to the district court for an evidentiary hearing to determine whether Ross was unconstitutionally deprived of representation.FN2 Satisfaction of this standard requires evidence, at a minimum, that standby counsel (1) conducted an adequate investigation into Ross's competency, including reading and analyzing Dr. Nixon's report, and preparing for the hearing and (2) chose not to contest Ross's competency based on his own strategic decision rather than a belief that he simply had no obligation to do so over Ross's instructions.