                                                                                         Michigan Supreme Court
                                                                                               Lansing, Michigan




Syllabus
                                                                Chief Justice:            Justices:
                                                                Stephen J. Markman        Brian K. Zahra
                                                                                          Bridget M. McCormack
                                                                                          David F. Viviano
                                                                                          Richard H. Bernstein
                                                                                          Joan L. Larsen
                                                                                          Kurtis T. Wilder
This syllabus constitutes no part of the opinion of the Court but has been                Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.                  Kathryn L. Loomis



                                                PEOPLE v LEWIS

              Docket No. 154396. Argued on application for leave to appeal April 13, 2017. Decided
       July 31, 2017.

               Gary P. Lewis was convicted after a jury trial in the Wayne Circuit Court of four counts
       of third-degree arson, MCL 750.74, and one count of second-degree arson, MCL 750.73(1). The
       court, Lawrence S. Talon, J., sentenced defendant as a fourth-offense habitual offender, MCL
       769.12, to 17 to 30 years of imprisonment for each of his convictions. Lewis appealed his
       convictions as of right in the Court of Appeals, claiming that he was deprived of counsel at his
       preliminary examination and that this deprivation of counsel at a critical stage of the criminal
       proceedings against him amounted to a structural error requiring automatic reversal. In an
       unpublished per curiam opinion issued July 21, 2016, the Court of Appeals, TALBOT, C.J., and
       MURRAY and SERVITTO, JJ., concluding that automatic reversal was required under binding
       Michigan cases interpreting United States v Cronic, 466 US 648 (1984), vacated Lewis’s
       convictions and remanded the case for a new trial. The Court of Appeals noted, however, that it
       did not believe reversal was required under a correct interpretation of federal law including
       Coleman v Alabama, 399 US 1 (1970), and that it would have applied a harmless-error test to
       determine whether reversal was required. The Supreme Court ordered and heard oral argument
       on whether to grant Lewis’s application for leave to appeal or take other action. 500 Mich 918
       (2016).

             In a unanimous opinion by Justice LARSEN, in lieu of granting leave to appeal, the
       Supreme Court held:

               The deprivation of defense counsel at a preliminary examination is subject to harmless-
       error review.

               1. Under the Sixth Amendment of the United States Constitution, a defendant has a right
       to counsel during critical stages of a criminal prosecution. In this case, the prosecutor conceded
       that the preliminary examination is a critical stage. With regard to the proper remedy when the
       right to counsel at a preliminary examination is denied, Coleman held that a remand was
       necessary to determine whether that denial was harmless error, while Cronic stated that a trial is
       unfair if the accused is denied counsel at a critical stage of the trial, requiring automatic reversal.
       However, that statement in Cronic, a case involving an allegation of ineffective assistance of
       counsel, was dictum, whereas the holding in Coleman that the deprivation of counsel at a
preliminary examination is subject to harmless-error review was not. Accordingly, the holding
in Coleman was binding.

        2. In evaluating whether the deprivation of counsel at a preliminary examination was
harmless, a court may not simply presume, without more, that the deprivation must have caused
the defendant harm, nor may it presume that the error was harmless because of the subsequent
conviction, even if no evidence from the preliminary examination was used at trial and the
defendant waived no rights or defenses because of the absence of counsel. Given that the parties
did not address either the substantive criteria or the procedural framework that should attend this
review, the case was remanded to the Court of Appeals to consider those questions in the first
instance.

       Court of Appeals judgment reversed; Part II of the Court of Appeals opinion vacated;
case remanded to the Court of Appeals for further proceedings.

       Justice MCCORMACK, joined by Justice BERNSTEIN, concurring, signed the majority
opinion in full and agreed that Coleman was controlling and binding in this case, but wrote
separately to question whether harmless-error review under Coleman for cases in which counsel
was denied at a preliminary examination was sustainable given the speculative nature of the
inquiry, the evolution of and reasoning behind the United States Supreme Court’s structural-error
doctrine, and the unresolved tension between Coleman and Cronic.




                                    ©2017 State of Michigan
                                                                           Michigan Supreme Court
                                                                                 Lansing, Michigan




OPINION
                                                    Chief Justice:           Justices:
                                                    Stephen J. Markman       Brian K. Zahra
                                                                             Bridget M. McCormack
                                                                             David F. Viviano
                                                                             Richard H. Bernstein
                                                                             Joan L. Larsen
                                                                             Kurtis T. Wilder

                                                                     FILED July 31, 2017



                           STATE OF MICHIGAN

                                    SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

             Plaintiff-Appellant,

v                                                             No. 154396

GARY PATRICK LEWIS,

             Defendant-Appellee.


BEFORE THE ENTIRE BENCH

LARSEN, J.

      This case confronts us with two precedents of the Supreme Court of the United

States that initially seem to conflict. In one, the Supreme Court remarked that denial of

counsel at a critical stage of a criminal proceeding is a structural error requiring

automatic reversal. See United States v Cronic, 466 US 648, 659; 104 S Ct 2039; 80 L

Ed 2d 657 (1984). In the other, the Court remanded for harmless-error analysis in a case

in which it held that a defendant was denied counsel at a critical stage—his preliminary
examination. See Coleman v Alabama, 399 US 1, 11; 90 S Ct 1999; 26 L Ed 2d 387

(1970). 1 An error cannot be both structural and subject to harmless-error review. See

Neder v United States, 527 US 1, 8; 119 S Ct 1827; 144 L Ed 2d 35 (1999).

       The defendant in this case was deprived of the right to counsel at his preliminary

examination. Believing itself bound by precedent, the Court of Appeals resolved the

conflict by holding, in effect, that Cronic controlled and granting defendant an automatic

new trial. But Cronic’s discussion of the general remedy for complete denials of counsel

was dictum; while Coleman held that the denial of counsel at a preliminary hearing—the

very error at issue here—is subject to harmless-error review. When the Supreme Court’s

holdings and its dicta conflict, we are bound to follow its holdings. Accordingly, we

reverse the judgment of the Court of Appeals, vacate Part II of its opinion, and remand

the case to the Court of Appeals for further proceedings consistent with this opinion.

                       I. FACTS AND PROCEDURAL HISTORY

       Before his preliminary examination, defendant, Gary Lewis, had been appointed

two lawyers. He was not pleased with either; indeed, the examining court noted that he

had filed grievances against each of his previous attorneys. Defendant’s most recently

appointed attorney was present in the courtroom when defendant appeared for his

preliminary examination. At the start of the hearing, the judge asked defendant to state

1
 Justice Brennan authored the plurality opinion in Coleman. Three other justices joined
Justice Brennan’s opinion in full, and one additional justice joined Part III of the opinion,
which held that harmless error was the appropriate standard of review for a denial of
counsel at a preliminary hearing. Coleman, 399 US at 10 n 4. Accordingly, Part III of
Justice Brennan’s opinion will be cited as the opinion of the Court throughout this
opinion.



                                             2
his name for the record. Defendant replied that he was “not talking”; that he didn’t have

an attorney; that he was being disrespected; that his rights were being violated; and that

he was “through with it.” The trial judge stated that he understood defendant to have

“elected that he would prefer not to have a lawyer represent him” at the preliminary

examination. Defendant explicitly disagreed: “I never said that.” The court proceeded

anyway, with defendant acting pro se, and appointed defendant’s former attorney as

standby counsel. Despite many warnings, defendant repeatedly disrupted the preliminary

examination and was ultimately removed from the courtroom. At that point, the judge

relieved standby counsel of his duties, and the prosecution continued with the preliminary

examination unopposed. Defendant was bound over for trial.

      Defendant was represented by counsel at trial and was convicted by jury of one

count of second-degree arson and four counts of third-degree arson. He challenged his

convictions in the Court of Appeals, arguing that the deprivation of counsel at his

preliminary examination was a structural error requiring automatic reversal. Believing

itself bound by precedent, the Court of Appeals agreed, overturned the convictions, and

remanded for a new trial. People v Lewis, unpublished per curiam opinion of the Court

of Appeals, issued July 21, 2016 (Docket No. 325782).          The prosecution filed an

application for leave to appeal in this Court, and we ordered oral argument on the

application. People v Lewis, 500 Mich 897 (2016).




                                            3
                                     II. ANALYSIS

       The prosecution concedes that defendant lacked counsel at his preliminary

examination 2 and that the preliminary examination is a critical stage for the purposes of

the Sixth Amendment right to counsel. US Const, Am VI. The prosecution’s concession

is unremarkable. In Coleman v Alabama, the Supreme Court of the United States held

that Alabama’s preliminary-hearing procedure was a critical stage. Coleman, 399 US 9-

10 (opinion by Brennan, J.); id. at 12 (Black, J., concurring).       Although there are

variations in each state’s preliminary-examination procedures, this Court has repeatedly

commented that defendants have a constitutional right to counsel at preliminary

examinations in Michigan. See, e.g., People v Carter, 412 Mich 214, 217; 313 NW2d

896 (1981); People v Mitchell, 454 Mich 145, 161 n 15; 560 NW2d 600 (1997). This

case asks us to consider the remedy when that right to counsel is denied.

       Two cases compete for our attention. The prosecution directs us to Coleman. In

that case, the defendant was denied counsel at his preliminary hearing. The Supreme

Court held that the hearing was a critical stage because of the “inability of the indigent

accused on his own to realize the[] advantages of a lawyer’s assistance” at such a

2
  The prosecution also concedes that the examining court did not comply with the
procedures set forth in MCR 6.005 or People v Anderson, 398 Mich 361, 367-368; 247
NW2d 857 (1976), citing Faretta v California, 422 US 806; 95 S Ct 2525; 45 L Ed 2d
562 (1975), for establishing an unequivocal waiver of the right to counsel. The
prosecution does, however, raise two preliminary arguments related to defendant’s ability
to bring his denial-of-counsel claim. First, the prosecution argues that defendant did not
preserve his claim because he did not raise in the circuit court his lack of counsel at the
preliminary examination. The prosecution also argues that defendant’s behavior in
refusing to cooperate with his attorneys could be construed as a waiver of his right to
counsel. We do not entertain these arguments, however, because they were not presented
to the Court of Appeals.



                                            4
proceeding. 3 Coleman, 399 US at 9-10 (opinion by Brennan, J.); id. at 12 (Black, J.,

concurring) (agreeing that “the preliminary hearing is a ‘critical stage’ ”). A majority of

the Court determined that the proper remedy was to remand the case to the Alabama

courts to consider “whether the denial of counsel at the preliminary hearing was harmless

error.” Id. at 11, citing Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705

(1967).

       Defendant points to United States v Cronic. There, the Court remarked that some

“circumstances . . . are so likely to prejudice the accused that the cost of litigating their

effect in a particular case is unjustified.” Cronic, 466 US at 658. The Court began with

the “most obvious” of these circumstances—“complete denial of counsel”—and

commented that “a trial is unfair if the accused is denied counsel at a critical stage of his

trial.” Id. at 659.

       Coleman’s review for harmless error is obviously incompatible with the automatic

reversal suggested by Cronic. Defendant asks us to hold, therefore, that Cronic silently

abrogated Coleman and to automatically reverse his conviction. We decline to do so.

       It is an elementary proposition that “state courts are bound by United States

Supreme Court decisions construing federal law,” including the Constitution. People v

Gillam, 479 Mich 253, 261; 734 NW2d 585 (2007). But when two statements conflict,



3
  These advantages, as articulated by the plurality in Coleman, include “expos[ing] fatal
weaknesses in the State’s case,” cross-examining witnesses to generate potential
impeachment evidence for use at trial, gaining discovery of the prosecution’s case, and
making arguments related to bail and psychiatric examinations. Coleman, 399 US at 9
(opinion by Brennan, J.).



                                             5
we must prefer a holding of the Supreme Court to its dictum. See Agostini v Felton, 521

US 203, 237; 117 S Ct 1997; 138 L Ed 2d 391 (1997).

       Cronic was a case about the effective assistance of counsel guaranteed by the

Sixth and Fourteenth Amendments of the United States Constitution. The defendant was

on trial in a mail-fraud case involving $9.4 million in transferred checks. Cronic, 466 US

at 649. His retained counsel had withdrawn shortly before the scheduled trial and a

young lawyer with a real-estate practice, and no criminal-trial experience, had been

appointed to represent the defendant. Id. The Government’s investigation had taken

more than four years, but defense counsel was given only 25 days to prepare for trial. Id.

The defendant challenged his conviction on the ground that, under the circumstances, he

had been deprived of the effective assistance of counsel. The United States Court of

Appeals for the Tenth Circuit agreed. United States v Cronic, 675 F2d 1126 (CA 10,

1982). Even though the defendant could not point to any specific errors in his counsel’s

performance, or prejudice flowing therefrom, the federal appellate court held that “no

such showing is necessary ‘when circumstances hamper a given lawyer’s preparation of a

defendant’s case.’ ” Cronic, 466 US at 651. The Supreme Court reversed, holding that

the defendant could “make out a claim of ineffective assistance only by pointing to

specific errors made by trial counsel.” Id. at 666.

       Along the way, the Court’s opinion in Cronic contrasted claims of ineffective

assistance with other errors “so likely to prejudice the accused that the cost of litigating

their effect in a particular case is unjustified.” Id. at 658. It deemed “[m]ost obvious”

among them “the complete denial of counsel . . . at a critical stage of his trial.” Id. at 659.

But the question in Cronic was not whether the defendant had been denied counsel


                                              6
completely, much less whether he had been completely denied counsel at a preliminary

hearing. It was, instead, whether his counsel had provided effective assistance at trial.

And so the Court’s statements about the complete denial of counsel were dicta. 4

       The Coleman decision, by contrast, is directly on point. Although it is short on

explanation for its remedy, the Court plainly held that the deprivation of counsel at a

preliminary examination is subject to harmless-error review under the federal

Constitution. See Coleman, 399 US at 11. Accordingly, we apply that decision, rather

than the dictum in Cronic. 5

       We note that our resolution is consistent with that of other courts which have

examined the tension between Coleman and Cronic. See, e.g., Takacs v Engle, 768 F2d

122, 124 (CA 6, 1985) (holding that “Coleman’s harmless error analysis remains good

law” despite the defendant’s argument that it had been overruled by Cronic and

Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984)); State v


4
  The same rationale applies to the Court of Appeals’ reliance on People v Arnold, 477
Mich 852; 720 NW2d 740 (2006), and to our statement in People v Russell, 471 Mich
182, 194 n 29; 684 NW2d 745 (2004), that “[t]he complete denial of counsel at a critical
stage of a criminal proceeding is a structural error that renders the result unreliable, thus
requiring automatic reversal.” Arnold was a sentencing case, and Russell addressed the
denial of counsel at trial. As such, they are not binding in this case, which involves a
preliminary examination. Nothing in those cases purported to rest on unique aspects of
the Michigan, as opposed to the federal, Constitution. Accordingly, neither Arnold nor
Russell could have held that the complete denial of counsel at any critical stage of a
criminal proceeding is structural error requiring automatic reversal, when the Supreme
Court of the United States has held otherwise.
5
  Because Cronic’s dictum could not have overruled Coleman’s holding, we need not
address the prosecution’s argument that Satterwhite v Texas, 486 US 249; 108 S Ct 1792;
100 L Ed 2d 284 (1988), implicitly overruled Cronic.



                                             7
Brown, 279 Conn 493, 507 n 5; 903 A2d 169 (2006) (“We note that, since Coleman, the

United States Supreme Court has indicated in dicta that denial of counsel at a critical

stage renders a trial unfair, without regard to actual prejudice. . . . At no point, however,

has the [C]ourt overruled explicitly Coleman or repudiated its conclusion that the case

should be remanded for harmless error analysis, despite the denial of counsel at the

preliminary hearing.”). And our resolution is also consistent with the Supreme Court’s

admonition that other courts should not conclude that the Court’s “more recent cases

have, by implication, overruled an earlier precedent” but should instead leave to the

Supreme Court “the prerogative of overruling its own decisions.” 6 Agostini, 521 US at

237. Defendant has not argued that the state Constitution, Const 1963, art 1, § 20,

provides him with any greater protection than the federal Constitution, US Const, Am

VI. 7 Defendant’s claim of error is, therefore, subject to harmless-error review.

       While we have easily concluded that harmless-error review applies, we admit to

being uncertain about just how a court is to evaluate the effect of this error on a verdict.

Coleman does not tell us; there, the Supreme Court simply remanded to the Supreme

Court of Alabama to review the effect of the error under Chapman without further


6
  We have recently emphasized that a similar rule governs our own lower courts. See
Associated Builders & Contractors v Lansing, 499 Mich 177, 191-192; 880 NW2d 765
(2016).
7
  Defendant has argued that a ruling that this error is subject to harmless-error review
would set a “dangerous precedent” encouraging trial courts to subject defendants to
preliminary examinations without counsel. We emphasize that the courts of our State
remain under an obligation to protect a defendant’s right to counsel at the preliminary-
hearing stage. Should they fail, trial counsel should bring the error to the circuit court’s
attention before trial so that it may be promptly remedied.



                                             8
discussion. We do, however, have some guideposts. At each extreme, we know what is

not permitted. At one end, a court may not simply presume, without more, that the

deprivation of counsel at a preliminary examination must have caused the defendant

harm. Although consistent with the presumption accorded to the complete denial of

counsel at some other stages of a criminal proceeding, see, e.g, Gideon v Wainwright,

372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963) (at trial); Penson v Ohio, 488 US 75; 109

S Ct 346; 102 L Ed 2d 300 (1988) (on first appeal as of right), such an approach would be

treating the error as structural—a result foreclosed by Coleman. Neither, however, may

we presume the opposite. Although it finds support by analogy in the Supreme Court’s

post-verdict evaluation of most grand-jury errors, see United States v Mechanik, 475 US

66, 73; 106 S Ct 938; 89 L Ed 2d 50 (1986), Coleman does not permit us to presume that

a defendant, who was ultimately convicted at an otherwise fair trial, suffered no harm

from the absence of counsel at his preliminary examination. And that is true even if no

evidence from the preliminary examination was used at trial, and even if defendant

waived no rights or defenses because of the absence of counsel at the preliminary

examination. All of these things were true, and brought to the Court’s attention, 8 in Mr.

8
  The lead opinion itself acknowledged the first two points. See Coleman, 399 US at 10
(“The trial transcript indicates that the prohibition against use by the State at trial of
anything that occurred at the preliminary hearing was scrupulously observed.”); id. at 8
(opinion by Brennan, J.) (“ ‘At the preliminary hearing . . . the accused is not required to
advance any defenses, and failure to do so does not preclude him from availing himself of
every defense he may have upon the trial of the case.’ ”) (citation omitted; ellipsis in
original). And the Court was obviously aware that defendant had been convicted at trial.
See id. at 18 (White, J., concurring) (“The possibility that counsel would have detected
preclusive flaws in the State’s probable-cause showing is for all practical purposes
mooted by the trial where the State produced evidence satisfying the jury of the
petitioners’ guilt beyond a reasonable doubt.”); id. at 28 (Stewart, J., dissenting) (“Since


                                             9
Coleman’s case, and yet the Supreme Court remanded his case for a determination, under

Chapman, whether the deprivation of counsel at his preliminary examination was

harmless. See Coleman, 399 US at 10 (remanding for harmless-error determination even

though the “prohibition against use by the State at trial of anything that occurred at the

preliminary hearing was scrupulously observed” and no rights or defenses were lost). 9

       And so, with the two perhaps most intuitive options for assessing harm off the

table, courts are left to give meaning to the Supreme Court’s command to determine

whether defendant was “otherwise prejudiced by the absence of counsel at the

preliminary hearing.” Coleman, 399 US at 11. The parties have not addressed in this

litigation either the substantive criteria or the procedural framework that should attend

such review.     Accordingly, we remand to the Court of Appeals to consider those

questions in the first instance.




the petitioners have now been found by a jury in a constitutional trial to be guilty beyond
a reasonable doubt, the prevailing opinion understandably boggles at these logical
consequences of the reasoning therein.”).
9
   The Court of Appeals, believing itself bound by precedent, held that defendant was
automatically entitled to a new trial because he was denied counsel at a critical stage of
the proceeding. Lewis, unpub op at 3. The opinion proceeded, however, to set forth the
panel’s view that, under a proper interpretation of the law, the denial of counsel in this
case should be evaluated for harmlessness. Id. at 3-5. It then conducted that evaluation
and concluded, in dictum, that the error was harmless because “defense counsel conceded
that no evidence from the preliminary exam was used at trial,” defendant “did not waive
any rights or defenses by not participating in the preliminary exam,” and defendant was
tried and convicted, with counsel, at trial. Id. at 5. For the reasons stated above, these
findings, by themselves, were insufficient to compel the conclusion that the denial of
counsel was harmless.



                                            10
                                   III. CONCLUSION

       In accordance with Coleman, we hold that the deprivation of counsel at a

preliminary examination is subject to harmless-error review. We, therefore, reverse the

judgment of the Court of Appeals, vacate Part II of its opinion, and remand to that Court

for further proceedings consistent with this opinion. If the Court of Appeals concludes

that the error was harmless, it must also address the sentencing issue raised in defendant’s

brief in that Court. 10


                                                        Joan L. Larsen
                                                        Stephen J. Markman
                                                        Brian K. Zahra
                                                        Bridget M. McCormack
                                                        David F. Viviano
                                                        Richard H. Bernstein
                                                        Kurtis T. Wilder




10
  Defendant has filed an application for leave to appeal as cross-appellant. That
application is denied, because we are not persuaded that the questions presented should
be reviewed by this Court.



                                            11
                            STATE OF MICHIGAN

                                    SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

             Plaintiff-Appellant,

v                                                           No. 154396

GARY PARTICK LEWIS,

             Defendant-Appellee.


MCCORMACK, J. (concurring).
       I agree with the majority that we are bound to follow Coleman v Alabama, 399 US

1; 90 S Ct 1999; 26 L Ed 2d 387 (1970), because it is directly on point and has never

been overruled.    I write separately to call attention to the difficulties inherent in

performing a harmless-error review in cases such as this and, relatedly, to the possibility

that the United States Supreme Court should reexamine Coleman in light of United States

v Cronic, 466 US 648; 104 S Ct 2039; 80 L Ed 2d 657 (1984).

      It is difficult for me to imagine what a harmless-error review will look like when,

as in this case, a defendant was denied counsel at the preliminary examination. As the

majority recognizes, Coleman excluded the most intuitive bases for finding prejudicial

harm because it made plain that the question of harmless error does not depend on

whether evidence from the preliminary hearing was presented at trial, and Coleman

remanded for a harmless-error determination even though the defendants waived no

rights or defenses because of the absence of counsel. Coleman, 399 US at 8, 10-11.

Further, Coleman remanded for harmless-error review with little guidance; the court was
to determine whether the defendants were “otherwise prejudiced” by the deprivation of

counsel at the preliminary hearing. Id. at 11.

       There are, of course, many ways that the absence of counsel at a preliminary

hearing might be harmful to a defendant apart from counsel’s role in negating a showing

of probable cause. Indeed, the Coleman Court identified many of these: counsel uses a

preliminary hearing to expose weaknesses in the prosecution’s case through cross-

examination, lays the grounds for later impeachment at trial, effectively discovers the

prosecution’s case, and makes arguments related to bail or psychiatric examinations. 1 Id.

at 9. I can think of others, too: the preliminary examination is often a critical client-

counseling moment when plea deals can be negotiated, and additional formal and

informal communications between defense counsel, the prosecutor, and the court give the

defendant important information about the evidence against him or her. But I find it

extremely problematic for a court to conduct a harmless-error review with reference to

these factors. It will require courts to speculate whether counsel would have discovered a

significant weakness in the prosecution’s case through cross-examination, or how

effectively counsel might have been able to lay the grounds for later impeachment of a

witness at trial, and what other information might have been revealed in the examination

of witnesses or discussions among counsel. It will require courts to speculate about the

1
  Other jurisdictions have referred to these four factors in their determination of harmless
error. See, e.g., State v Canaday, 117 Ariz 572, 575-576; 574 P2d 60 (1977) (examining
harmless error based on the purposes of a preliminary hearing delineated in Coleman);
State v Brown, 279 Conn 493, 510; 903 A2d 169 (2006) (stating that deprivation of
counsel at a probable-cause hearing is susceptible to harmless-error analysis through
examination of the functions of a preliminary hearing listed in Coleman).



                                             2
opportunities for negotiating a plea deal and counsel’s advice about whether to accept a

particular offer. And the speculation won’t end there: next, courts will have to speculate

about what result this hypothetical representation at the preliminary examination might

have had at a subsequent trial. 2 In short, I am concerned that harmless-error review in

cases such as this invites a potentially problematic level of speculation into judicial

review.

       All of this gives me reason to question whether Coleman’s holding remains viable

in light of the evolution of the Supreme Court’s structural-error doctrine. I agree with the

majority that Cronic’s comment suggesting that courts should presume prejudice and

automatically reverse upon complete denial of counsel at a critical stage was dictum. The

issue addressed in Cronic was whether the defendant received effective assistance of

counsel, not whether the defendant was denied counsel at a critical stage. But several

subsequent cases have cited Cronic for the proposition that courts should presume

prejudice if a defendant suffers complete denial of counsel at a critical stage. See, e.g.,

Roe v Flores-Ortega, 528 US 470, 483; 120 S Ct 1029; 145 L Ed 2d 985 (2000); Mickens

v Taylor, 535 US 162, 166; 122 S Ct 1237; 152 L Ed 2d 291 (2002); Woods v Donald,

575 US ___, ___; 135 S Ct 1372, 1375-1376; 191 L Ed 2d 464 (2015). Indeed, in

Woods, 575 US at ___; 135 S Ct 1375-1376, the Supreme Court reiterated the Cronic

2
 In determining what counsel might have accomplished had he or she been present at this
hearing, is the reviewing court to assume that the preliminary-examination counsel would
have been about as effective as trial counsel? Or more effective because counsel might
have an incentive to work especially diligently at a preliminary exam because that work
could pay off with a better and earlier resolution of the case? Or perhaps the reviewing
court should assume counsel was simply minimally constitutionally competent?



                                             3
dictum as a holding that the complete denial of counsel at a critical stage allows a

presumption of unconstitutional prejudice. And the preliminary examination is a critical

stage in criminal proceedings. Coleman, 399 US at 9. Thus, it seems Cronic’s reasoning

would apply with equal force to a preliminary examination, but for Coleman’s holding to

the contrary.

       Further, the reasoning that animates the Court’s structural-error jurisprudence

seems to apply with full force in the context of a preliminary examination. The common

strand I see in the Court’s rationale for declaring an error structural and presuming

prejudice requiring reversal is that the particular error makes assessing its effect

exceptionally difficult. United States v Marcus, 560 US 258, 263; 130 S Ct 2159; 176 L

Ed 2d 1012 (2010).     Structural errors are characterized by “consequences that are

necessarily unquantifiable and indeterminate . . . .” Sullivan v Louisiana, 508 US 275,

282; 113 S Ct 2078, 124 L Ed 2d 182 (1993). As explained above, that rationale seems

on the nose here. Harmless-error review is impractical because of the difficulty in

determining what might have gone differently if the defendant had the benefit of counsel

at the preliminary examination. It is impossible to know with certainty what questions

counsel might have posed and what answers witnesses might have provided, what other

benefits the defendant might have derived from having counsel available, and how all of

those considerations would have affected the subsequent trial. In my view, harmless-

error analysis in cases in which counsel was denied at the preliminary examination risks

becoming a “speculative inquiry into what might have occurred in an alternate universe.”

United States v Gonzalez-Lopez, 548 US 140, 150; 126 S Ct 2557; 165 L Ed 2d 409

(2006).


                                           4
      The development of the Supreme Court’s structural-error doctrine, the reasoning

that explains it, and the unresolved tension between Cronic and Coleman 3 make me

question whether the Coleman harmless-error review remains a sustainable rule when a

defendant is denied counsel at a preliminary examination. Nevertheless, Coleman is

directly on point and has never been overruled, while the rule of Cronic has never been

applied to denial of counsel at a preliminary examination. Therefore, I agree with the

majority that Coleman is controlling, and we are bound to follow its holding.


                                                       Bridget M. McCormack
                                                       Richard H. Bernstein




3
  Compare Ditch v Grace, 479 F3d 249, 255-256 (CA 3, 2001) (reconciling Coleman and
Cronic by reading Cronic in a limited fashion), with French v Jones, 332 F3d 430, 438
(CA 6, 2003) (stating that caselaw after Cronic has reiterated that harmless-error analysis
does not apply to the absence of counsel at a critical stage, which requires automatic
reversal).



                                            5
