A 2-1 opinion in a case that defies understanding-not that it is the first one the 9th Circuit judges have written. In a bench trial, the judge found the defendant guilty and scheduled a sentencing hearing. On the date of the hearing the defendant substituted out his lawyer and retained new counsel. Because new counsel had not appeared, the court ordered substituted counsel to stay in court for the allocution by the victim.
Federal law allows victims of a crime to testify at the sentencing and describe the extent of harm or damage inflicted by defendant’s conduct. No cross examination allowed, the hearing not subject to impeachment, and no limit on the extent of the damage. The victim testified while former counsel remained-even though not representing the defendant. New counsel appeared and remained present for the rest of the hearing.
According to the majority, the Sixth Amendment mandates the right of a defendant to counsel at trial, and sentencing is part of the trial. Absence of counsel representing the defendant is grounds for reversal and two judges on the panel vacated the sentence and remanded.
As the dissent points out, what does defense counsel do at an allocution hearing other than listen. The trial judge, in the interest of the defendant, asked substituted counsel to remain while the victim spoke to assure no error occurred. What did substituted counsel do? Just sat there and listened. If some kind of error occurred, former counsel could discuss it with new counsel or get a copy of the transcript. What is there to do? And new counsel made no objection to the trial court decision allowing the trial court practice.
This decision is another example of wasted judicial time in the context of a perfectly satisfactory hearing that would warrant no objection to an allocution. The dissent could not understand the majority opinion for the “life of me.” Neither could anyone else.