Nicole Bradley v. Gloria Henry, Warden

FERGUSON, Circuit Judge,

concurring:

I agree with the majority opinion but write separately to underscore that Bradley was not only deprived of her right to due process by being excluded from the in-camera hearing. See Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). She was also deprived of her Sixth Amendment right to select counsel of her choice as an effect of that exclusion.

At the in-camera hearing, the trial judge effectively sealed Bradley’s ability to maintain and secure counsel of her choice in a capital case. First, the judge inexplicably refused to let Bradley’s former attorney, Patrick Hutchinson, speak on Bradley’s *969behalf even though he was representing her interest in not having Cynthia Dunlevy withdraw as her present counsel. Second, the judge substituted retained counsel with appointed counsel without ever asking for or learning Bradley’s opinion. While the dissent correctly asserts that a defendant has no right to insist on counsel she cannot afford, see Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), the judge never asked Bradley about her financial condition. Rather, he silenced her entirely, the effect of which was to divest of any value or weight Bradley’s Sixth Amendment right to counsel of choice. This is an error that is per se prejudicial, structural, and requires automatic reversal. Flanagan v. United States, 465 U.S. 259, 268, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (“Obtaining reversal for violation of such a right does not require a showing of prejudice to the defense, since the right reflects constitutional protection of the defendant’s free choice independent of concern for the objective fairness of the proceeding.”). Because our system of justice cannot condone a judge’s unconstitutional treatment of any criminal defendant, I concur in the majority opinion.