Petty v. United States

• Court: District of Columbia Court of Appeals
• Decided: June 20, 2024
• Docket: 22-CM-0642
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 22-CM-0642

JEFFREY HAMILTON PETTY, APPELLANT,

v.

UNITED STATES, APPELLEE.

On Appeal from the Superior Court of the District of Columbia (2020-DVM-000680)

(Hon. Kimberley Knowles, Trial Judge)

(Argued November 8, 2023 Decided June 20, 2024)

Russell A. Bikoff for appellant.

Anne Y. Park, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb and Elizabeth H. Danello, Assistant United States Attorneys, were on the brief, for appellee.

Before EASTERLY and MCLEESE, Associate Judges, and THOMPSON, Senior Judge.

Opinion for the court PER CURIAM.

Opinion concurring in the judgment by Associate Judge EASTERLY at page 2.

Opinion concurring in the judgment by Associate Judge MCLEESE at page 28.

Dissenting opinion by Senior Judge THOMPSON at page 38. 2

PER CURIAM: Appellant Jeffrey Hamilton Petty appeals his conviction for

misdemeanor assault, arguing that the trial court violated Mr. Petty’s constitutional

right to the assistance of counsel. For the reasons stated in the opinions concurring

in the judgment, the court vacates Mr. Petty’s conviction and remands the case for

further proceedings.

So ordered.

EASTERLY, Associate Judge, concurring in the judgment: The Supreme Court

and our court have firmly established that “an order prohibiting a defendant from

conferring with his counsel during an overnight (or other significant) interruption of

his testimony is a denial of the defendant’s Sixth Amendment right to counsel that

requires reversal without any showing of prejudice.” Martin v. United States, 991

A.2d 791, 793 (D.C. 2010) (citing Geders v. United States, 425 U.S. 80, 91 (1976)

and Perry v. Leeke, 488 U.S. 272, 278-80 (1989)). In Mr. Petty’s case, the trial court

prohibited him from conferring with his attorney about his testimony during a

nineteen-and-a-half-hour overnight recess in the midst of his trial. Mr. Petty argues

the trial court’s order violated his Sixth Amendment right to counsel and entitles him

to reversal of his conviction for simple assault. The government agrees that the trial

court’s overnight communication ban violated Mr. Petty’s Sixth Amendment rights.

But the government contends that, because the trial court only barred Mr. Petty from 3

discussing his testimony with counsel and granted counsel a recess the next day to

speak with Mr. Petty, we should dismiss this violation as “trivial” and affirm.

My concurring colleague and I agree that the government’s argument is not

consistent with this court’s decision in Martin and that reversal is thus required. I

write separately to make clear that the government’s triviality argument is

irreconcilable not only with Martin but also with the Supreme Court’s decisions in

Geders and Perry and this court’s decision in Jackson v. United States, 420 A.2d

1202 (D.C. 1979) (en banc). In addition, even if we were to write on a clean slate,

the government’s argument would be unpersuasive. Requiring a showing of

prejudice when a defendant is banned from consulting with his attorney, as the

government effectively argues, would infringe on attorney-client privilege, erode the

fundamental right to counsel, and undermine structural error precedent.

I. Factual and Procedural Background

After a dispute with a family member, Mr. Petty was charged with one count

of simple assault in violation of D.C. Code § 22-404. On the second day of his bench

trial, Mr. Petty took the stand. The government did not complete its cross-

examination before the end of the day. Before adjourning, the trial court instructed

Mr. Petty: “Do not discuss your testimony, including with your attorney[].”

Mr. Petty immediately asked for clarification. The trial court responded “you are 4

not permitted to talk to your attorney, to any attorney, your attorney, the Government

attorney, no one . . . I’m telling you not to discuss your testimony.” Defense counsel

(Colin M. Dunham) then objected, stating “I do believe that my client has the right

to discuss the case with me.” The court was unmoved and again stated that Mr. Petty

“can’t discuss his testimony . . . . You want to talk about the strategy for your case?

Absolutely. I’m not saying don’t discuss the case, [just] not his testimony.” Counsel

told the court he would research this issue overnight.

At the start of court the next day, defense counsel renewed his objection.

Counsel argued that he “believe[d] [a defendant’s] testimony is permitted to be

discussed under the case law that we have,” and the trial court’s order to the contrary

had violated Mr. Petty’s right to counsel under the Sixth Amendment. Counsel

further stated that he had been unsure about the scope of the trial court’s order and

thus had been “chilled as to what [he] could discuss” with Mr. Petty. Counsel

specified that the order had deterred him from discussing the case with his client in

various ways, including discussing Mr. Petty’s testimony as part of conducting a

model redirect examination, explaining how his answers to the prosecutor’s cross-

examination questions fit into the government’s theory of the case and why redirect

would be helpful, and discussing areas in which Mr. Petty had been confused by

questions asked on cross-examination. Counsel also asserted that there were 5

additional topics he had wished to discuss with Mr. Petty but because of “attorney-

client privilege,” he would “have to remain silent” as to the details.

At this juncture, defense counsel asked the court to grant a two-hour recess so

that he could meet with Mr. Petty before he resumed his testimony. The trial court

noted that “the order of yesterday is done,” resisted granting defense counsel a

recess, and only acquiesced after the prosecutor indicated that the United States did

not object. (Later the court stated that it had “not ma[de] a ruling” on the request

but had “just granted” it “because there was no objection” from the government.)

After the recess, the trial court asked defense counsel if he had had “an opportunity

to speak with [his] client . . . in a way that [he had] wished.” Defense counsel

responded that he had, and Mr. Petty resumed his testimony.

At the close of trial, the trial court found Mr. Petty guilty of simple assault,

largely crediting testimony from the government’s witnesses and discrediting

Mr. Petty’s testimony. Mr. Petty timely appealed his conviction.

II. Reversal Is Required Under The Supreme Court and This Court’s Case

Law

Reversal in this case is required under the Supreme Court’s decisions in

Geders and Perry and this court’s decisions in Jackson as well as Martin. 6

In Geders, the Supreme Court explained that a trial court’s order directing a

defendant not to consult with his attorney during a seventeen-hour overnight recess

in his trial violated his right to counsel under the Sixth Amendment. 425 U.S. at 91;

U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his defence.”). Notably, the trial court

in Mr. Geders’ case told his counsel at the time it imposed the overnight

communication ban that, after redirect on the next day, it would order a recess to

give counsel “all the time [he] need[ed] to talk to [his client] about strategies or

anything else”; and, true to its promise, on the day following the overnight ban, the

court allowed counsel to talk to Mr. Geders at the lunch recess. 425 U.S. at 82-85,

83 n.1. Citing these facts, the government argued to the Supreme Court that

Mr. Geders had not been prejudiced by the overnight ban. See Brief for the United

States at 8-9, 23-25, Geders, 425 U.S. 80 (No. 74-5968), 1975 WL 173630. The

Court, however, was unpersuaded.

The Court recognized that the Sixth Amendment guarantees more than a

formalistic appointment of an attorney for trial; it provides a defendant with a full-

bodied, functional right during trial to talk to one’s lawyer about anything related to

the case, to ask questions, and to get explanations and clear-eyed feedback (if not

reassurance) about the progress of trial. The Court made plain both that “a sustained

barrier to communication between a defendant and his lawyer,” such as an overnight 7

ban on communication, violated that full-bodied functional right and that such

violation was not amenable to a prejudice analysis. Geders, 425 U.S. at 91.

As the Court in Geders explained, overnight recesses are primetime for

attorney-client communications:

[i]t is common practice during such recesses for an accused and counsel to discuss the events of the day’s trial. Such recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed. The lawyer may need to obtain from his client information made relevant by the day’s testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day’s events. Our cases recognize that the role of counsel is important precisely because ordinarily a defendant is ill-equipped to understand and deal with the trial process without a lawyer’s guidance.

Id. at 88. The Court specifically acknowledged concerns about lawyers improperly

influencing their clients’ testimony. Id. at 89. But it observed that prosecutors could

expose such witness coaching on cross-examination and held that any conflict

between such a concern and a “defendant’s right to consult with his attorney during

a long overnight recess in the trial . . . must, under the Sixth Amendment, be resolved

in favor of the right to the assistance and guidance of counsel.” Id. at 91. The Court

further held that an “order preventing [Mr. Geders] from consulting [with] his

counsel ‘about anything’ during a 17-hour overnight recess” required reversal, 8

implicitly recognizing that prejudice from a ban on overnight communication

between a defendant and his attorney is inherent and yet unquantifiable. Id. at 86,

91-92 (reversing the Fifth Circuit’s decision that Mr. Geders was not entitled to a

new trial because he had not demonstrated prejudice from the Sixth Amendment

violation); see also id. at 92 (Marshall, J., concurring) (“[A]s the Court holds, a

defendant who claims that an order prohibiting communication with his lawyer

impinges upon his Sixth Amendment right to counsel need not make a preliminary

showing of prejudice.”).

Subsequently, in Perry, the Supreme Court confirmed what had been implicit

in Geders—that a Sixth Amendment violation resulting from an overnight ban on a

defendant’s communication with their counsel requires reversal without

consideration of prejudice because of the importance of the right to counsel. 488

U.S. at 280. The Court reviewed a decision by the Fourth Circuit holding that a trial

court’s ruling prohibiting Mr. Perry from consulting with his counsel during a

fifteen-minute recess during his testimony was a Sixth Amendment violation under

Geders but that it did not require reversal because “the error was not prejudicial.”

Id. at 274-76. The Court rejected this reasoning but affirmed the result. Drawing an

admittedly “thin” line between “the facts of Geders,” where all communication

between a defendant and his counsel had been banned during an overnight recess in

the midst of the defendant’s testimony, and “the facts of this case,” the Court 9

concluded that the court order in Mr. Perry’s case did not rise to the level of a Sixth

Amendment violation. Id. at 280. The Court underscored that “[i]t is the defendant’s

right to unrestricted access to his lawyer for advice on a variety of trial-related

matters that is controlling in the context of a long recess” as opposed to the “brief

recess” at issue in Perry. Id. at 283-84. But the Court made clear that where a true

Geders violation occurs, it requires reversal per se; the error “is not subject to . . . [a]

prejudice analysis” because of the “fundamental importance of the criminal

defendant’s constitutional right to be represented by counsel.” Id. at 279-80.

Following Geders, this court in Jackson v. United States held that an order

directing a defendant not to discuss his testimony during a lunchtime recess did “not

survive constitutional challenge” and was reversible error without regard to

prejudice. 420 A.2d at 1205. Like the Supreme Court, this court emphasized that a

per se approach is necessary because when a Sixth Amendment violation occurs,

“the degree of prejudice suffered by the accused, and the impact on jury deliberations

often cannot be assessed on the record.” Id. at 1203.

And post Perry, in Martin v. United States, this court held that an unobjected-

to order directing a defendant not to discuss his testimony with his counsel over a

weekend recess violated the defendant’s Sixth Amendment right to counsel, again

without regard to prejudice, because “deprivation of counsel’s assistance is 10

presumptively prejudicial.” 991 A.2d at 794-95 (explaining that Jackson

“remain[ed] valid and binding precedent in this jurisdiction with respect to overnight

recesses” and where a Geders violation occurs, it “inherently constitutes plain

error”); accord Mudd v. United States, 798 F.2d 1509, 1513 (D.C. Cir. 1986)

(adopting a per se rule that “reversal is required” following a Geders violation as the

approach that “best vindicates the right to the effective assistance of counsel”);

United States v. Johnson, 267 F.3d 376, 379 (5th Cir. 2001) (explaining that, in

Perry, the Supreme Court “held that a showing of prejudice is not an essential

component of establishing a violation of the Geders rule” and expressing support for

that view as “the constitutional right to counsel warrants the most zealous

protection”); Moore v. Purkett, 275 F.3d 685, 689 (8th Cir. 2001) (explaining that a

Geders violation is “reversible without a showing of prejudice”); United States v.

Miguel, 111 F.3d 666, 673 (9th Cir. 1997) (noting that, where a Geders violation

occurs, the violation constitutes “a denial of the assistance of counsel ‘altogether’ so

as to require reversal with no showing of prejudice”).

Although we did not say so explicitly, our opinions in Jackson and Martin

recognized that Geders violations are “structural errors” that require reversal

“without regard to their effect on the particular trial’s outcome,” Fortune v. United

States, 59 A.3d 949, 956 (D.C. 2013), because they deny a defendant “certain basic,

constitutional guarantees that should define the framework of any criminal trial,” 11

Weaver v. Massachusetts, 582 U.S. 286, 295 (2017); accord United States v. Triumph

Cap. Grp., Inc., 487 F.3d 124, 131 (2d Cir. 2007) (explaining that it is “well settled

that, in the Geders context, a violation of a defendant’s Sixth Amendment right to

counsel . . . constitutes a structural defect which defies harmless error analysis and

requires automatic reversal” (internal quotation marks omitted)); Clark v. State, 301

A.3d 241, 257, 271 (Md. 2023) (explaining that Geders violations are structural

errors that require reversal when raised in post-conviction proceedings regardless of

whether a defendant demonstrates prejudice).

Under this binding precedent, Mr. Petty received a constitutionally deficient

trial and is entitled to reversal. In the midst of trial, the court initially told Mr. Petty

that he was “not permitted to talk to [his] attorney” and then barred him from

discussing “his testimony” with counsel for nineteen-and-a-half hours. Even this

more limited overnight ban on attorney-client communications constitutes a Geders

violation, “[f]or as Perry recognizes, the defendant [has] a constitutionally protected

right to discuss a variety of trial-related matters during a substantial recess that will

inevitably include some consideration of the defendant’s ongoing testimony.”

Martin, 991 A.2d at 794 (emphasis and internal quotation marks omitted); see also

id. at 795 (noting that the majority of the federal circuits agree that “under Perry and

Geders” a trial court “may not order a defendant to refrain from discussing his

ongoing testimony with counsel during an overnight recess, even if all other 12

communication is allowed” (internal quotation marks omitted)); id. at 794 n.13

(citing cases explaining why “[c]onsultations between lawyers and clients cannot be

neatly divided into discussions about ‘testimony’ and those about ‘other’ matters”

(internal quotation marks omitted)).

Moreover, Mr. Petty’s counsel told the court that because of this overnight

ban, he “was chilled as to what [he] could discuss with [his] client,” and

understandably so. It is far from clear what a ban on discussing “testimony”—which

might impermissibly preclude counsel from explaining why the government had

asked a defendant a question on cross examination, discussing the possibility of

redirect, or relating how counsel perceived the strength of the government’s case in

light of a defendant’s testimony—encompasses. In short, this is precisely the sort of

lengthy, mid-trial deprivation of counsel that the Supreme Court, our court, and

others have said is not amenable to “nice calculations as to the amount of prejudice

arising from its denial” and requires reversal. See Jackson, 420 A.2d at 1203

(quoting Glasser v. United States, 315 U.S. 60, 76 (1942)); see also United States v.

Cronic, 466 U.S. 648, 659 n.25 (1984) (citing Geders for the proposition that the

Supreme Court has “uniformly found constitutional error without any showing of

prejudice when counsel was . . . prevented from assisting the accused during a

critical stage of the proceeding”); Clark, 301 A.3d at 254 (“Geders teaches that it is

the length and scope of the no-communication order, not the defendant’s request or 13

demonstrated desire for counsel, that determines whether there has been a violation

of the defendant’s Sixth Amendment right to counsel.”).

III. The Government’s Triviality Argument Must Be Rejected

Faced with this precedent, the government admits, as it must, that the trial

court’s order “violated [Mr. Petty’s] Sixth Amendment right to counsel.” Br. for

United States at 11. But it nevertheless argues that we should assess the “totality of

the circumstances” in Mr. Petty’s case and conclude that, “at the end of the day,” the

order’s effect “was so trivial that it did not amount to a constitutional violation.” Br.

for United States at 11, 20, 23. In other words, recognizing that an actual Sixth

Amendment violation based on an overnight ban on attorney-client communication

about a defendant’s testimony cannot be deemed harmless under Geders and its

progeny, the government tries to introduce a new way to minimize a Geders error

and place it on the Perry side of the Geders-Perry divide.

As support for this argument, the government cites the Second Circuit’s

decision in Triumph Capital Group. In Triumph Capital, the Second Circuit assessed

whether a court order preventing a defendant from speaking with his counsel about

his testimony during an overnight recess constituted a Geders violation where

(1) defense counsel was informed the ban might be lifted less than thirty minutes

after it was put in place, (2) defense counsel admitted that he could have contacted 14

the defendant (who was not detained) that evening and made arrangements to speak

but did not do so, (3) the defendant was available to speak with counsel when

counsel learned the ban would be lifted, (4) the court lifted the ban that evening and

granted the defendant as much time as he wished to consult with his attorney during

a recess the next day before resuming testimony, and (5) the trial court and the

government did not act in “bad faith.” 487 F.3d at 137. The Second Circuit

recognized that an order forbidding a defendant from speaking about his ongoing

testimony “during a substantial recess” violates the Sixth Amendment and that such

errors “require[] automatic reversal.” Id. at 131-32 (internal quotation marks

omitted). But it announced that, to determine whether the trial court’s order rose to

the level of a Geders violation, it would consider the “totality of the circumstances.”

Id. at 134. The Second Circuit decided that, where the evidence shows a trial court

order “is issued in good faith and does not actually prevent the defendant from

communicating, unfettered, with his attorney about the full panoply of trial related

issues prior to the trial resuming, nor meaningfully interferes with the quality of

advice and counsel the attorney is able to provide during that recess,” the erroneous 15

order could be deemed too “trivial” to amount to a Sixth Amendment violation. Id.

at 135. 1

The government argues that we should likewise assess the “totality of the

circumstances” and, although the trial court’s order in Mr. Petty’s case did prevent

him from speaking with his attorney about his testimony during a nineteen-and-a-

half-hour overnight recess, we should nevertheless consider whether the surrounding

circumstances rendered the trial court’s order “trivial.” This argument must be

rejected both because it is contrary to binding precedent and because adopting this

approach would be, for multiple reasons, ill-advised.

To begin with, setting aside that the government’s reliance on Triumph Capital

is misplaced, 2 the government’s argument is squarely foreclosed by precedent that

1 In addition to Triumph Capital, the government cites to People v. Umali, 888 N.E.2d 1046 (N.Y. 2008), and People v. Tetro, 109 N.Y.S.3d 776 (N.Y. App. Div. 2019). But these cases simply rely on Triumph Capital to conclude that where trial courts lifted bans on attorney-client communication and allowed clients time to speak with their attorney before resuming testimony, the bans did not violate defendants’ Sixth Amendment rights. Umali, 888 N.E.2d at 1050-51 (concluding “these circumstances are comparable to the situation in . . . Triumph Capital” and, as a result, “reversal is not warranted in this case”); Tetro, 109 N.Y.S.3d at 780 (concluding that “reversal is not required under the circumstances of this case,” citing Umali discussing Triumph). As I explain, infra, this reasoning is both foreclosed by our precedent and unpersuasive. 2 As explained above, in Triumph Capital, the Second Circuit only looked to the totality of the circumstances because, “in the unusual circumstances presented” in that case, in which the trial court revoked its communications ban soon after 16

is binding on this court—precedent which gives us only two options when

confronted with a trial court ruling barring communication between a defendant and

their counsel. Such a ruling is either a Geders violation—requiring reversal, Martin,

991 A.2d at 793—or it is a de minimis interruption of a defendant’s dialogue with

counsel during trial and thus, per Perry, no constitutional violation at all, 488 U.S.

at 284-85. As the government itself admits, the trial court’s order in Mr. Petty’s case

fell on the Geders line of the divide, “violat[ing] his Sixth Amendment right to

counsel.” Br. for United States at 11; see also Martin, 991 A.2d at 794-95 (holding

that an order forbidding a defendant from discussing their testimony with their

attorney during an overnight recess violates the Sixth Amendment). Once a

structural error of this nature occurs, it “infect[s] the entire trial process,” Brecht v.

Abrahamson, 507 U.S. 619, 630 (1993), and reversal is required, whether or not the

error is preserved, regardless of any circumstances or steps the court took afterward,

Martin, 991 A.2d at 793, 796 (explaining that a Geders violation “requires reversal

issuance, it was not clear whether the order actually rose to the level of a Geders violation. Id. at 135. There is no indication in Triumph Capital that the Second Circuit would apply this totality of the circumstances analysis to the facts of this case where the trial court’s order undisputedly prevented Mr. Petty from speaking with his attorney about his testimony overnight, violating his Sixth Amendment rights. Indeed, there is every indication that the Second Circuit would not, given its acknowledgement that where a trial court in fact prevents a defendant from speaking with their attorney during an overnight recess, the order violates a defendant’s Sixth Amendment rights, “defies harmless error analysis[,] and requires automatic reversal.” 487 F.3d at 131. 17

without any showing of prejudice” under the test for plain error) 3; Jackson, 420 A.2d

at 1205 (concluding that, having established a Geders violation, an “appellant’s

conviction must be set aside regardless of whether prejudice was demonstrated” or

appellant “remonstrate[d] against the court’s order”); Perry, 488 U.S. at 280 (stating

3 I disagree with my concurring colleague’s suggestion that Martin’s “per se approach” to plain error might no longer be “good law.” Post at 34 (McLeese, J., concurring) (internal quotation marks omitted). My colleague quotes the pronouncement in Barrows v. United States, 15 A.3d 673, 680 (D.C. 2011), quoting Puckett v. United States, 556 U.S. 129, 142 (2009), that “a per se approach to plain- error review is flawed.” Post at 34 (McLeese, J., concurring). The Supreme Court in Puckett, however, was explaining in a nonstructural error case why a defendant must satisfy the fourth prong of the plain error test—that an error must “seriously affect[] the fairness, integrity, or public reputation of judicial proceedings.” 556 U.S. at 135, 141-42 (internal quotation marks omitted). In Barrows, this court extended the reasoning in Puckett that a defendant must satisfy the fourth prong of the plain error test to the context of a brief courtroom closure. 15 A.3d at 680. But I find it hard to see how the logic in Barrows would undermine Martin’s approach to plain error where there is a Geders violation. Even though a public trial violation is a type of structural error, the Supreme Court has recognized that “not every public-trial violation results in fundamental unfairness.” Weaver, 582 U.S. at 298; see also id. at 296 (explaining that certain errors are classified as structural for different reasons, with different consequences). In the distinct structural error context in which “an indigent defendant is denied an attorney,” however, the Court has explained that “the resulting trial is always a fundamentally unfair one.” Weaver, 582 U.S. at 296; accord Cronic, 466 U.S. at 659 (explaining that “[t]he presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial”); see also Clark, 301 A.3d at 257, 261 (explaining that a Geders violation is a complete denial of counsel constituting structural error and noting that the Court’s reasoning in Weaver “did not call ‘into question the Court’s precedents determining that certain errors are deemed structural and require reversal because they cause fundamental unfairness’” (quoting Weaver, 582 U.S. at 301)). 18

that a Geders violation “is not subject to [a] prejudice analysis”); Geders, 425 U.S.

at 83-85, 91 (reversing defendant’s conviction without pausing to consider the

impact of the recess the trial court granted to permit the defendant to consult with

his attorney the day after its overnight ban on communication).

What the government proposes—assessing whether the particulars of

Mr. Petty’s case somehow rendered “trivial” a clear Sixth Amendment violation—is

indistinguishable from the harmless error analysis our court and the Supreme Court

have held has no place following a Geders violation. See Martin, 991 A.2d at

793-94; Perry, 488 U.S. at 280. Assessments of whether a Sixth Amendment

violation was “trivial” or harmless are, at bottom, assessments of the violation’s

adverse impact on the trial. Compare Carrell v. United States, 165 A.3d 314, 328

(D.C. 2017) (en banc) (explaining that a harmless-error analysis assesses whether

we can say “beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained” (quoting Sullivan v. Louisiana, 508 U.S. 275, 279

(1993)), with Triumph Cap. Grp., 487 F.3d at 134-35 (stating that a “triviality

standard” analyzes whether “the actions of the [trial] court and the effect they had

on the conduct of the trial deprived the defendant . . . of the protections conferred by

the Sixth Amendment”). We do not require a defendant to show prejudice from a

Geders violation precisely because the impact of that violation cannot be quantified.

See Jackson, 420 A.2d at 1203 (observing that “[w]hen a violation of the right to 19

counsel is alleged, the degree of prejudice suffered by the accused, and the impact

on jury deliberations often cannot be assessed on the record”). If the impact of a

Geders violation cannot be assessed based on the record, there can be no reasonable

way to determine whether that violation was somehow “trivial.”

The factors the government urges us to consider to determine whether a

Geders violation is trivial are unhelpful. The government argues that the impact of

the trial court’s order in this case was trivial because the court (1) limited the ban on

communication to the discussion of Mr. Petty’s testimony, (2) granted Mr. Petty and

his counsel a two-hour break the next day to confer, and (3) received assurance from

defense counsel that counsel had sufficient time to speak with Mr. Petty. But these

factors are all constitutionally irrelevant. Whether a communication ban is limited

to discussion of the defendant’s testimony cannot make the error trivial because a

“defendant [has] the right to discuss the entire case, including his own testimony,

with his attorney.” Martin, 991 A.2d at 794 (quoting Jackson, 420 A.2d at 1205).

Whether the trial court subsequently granted Mr. Petty a recess to speak with his

attorney makes no difference when the trial court had already committed per se

reversible error by depriving Mr. Petty of the benefit of counsel overnight. 4 See

4 My concurring colleague observes that Mr. Petty “arguably” forfeited his claim that he was entitled to a new trial when his counsel requested the two-hour recess before testimony resumed and suggests that plain error review of Mr. Petty’s 20

claim might have been appropriate had the government requested it. See post at 28-31 (McLeese, J., concurring). Certainly I agree that the government, by failing to argue otherwise, has forfeited any argument of forfeiture by Mr. Petty. See id.; see also Sims v. United States, 213 A.3d 1260, 1267 n.11 (D.C. 2019) (referring to the government’s failure to raise a lack of preservation argument as “waiv[ing] the waiver” (internal quotation marks omitted)); but see Chew v. United States, 314 A.3d 80, 91 (D.C. 2024) (Easterly, J., concurring) (explaining the difference between waiver and forfeiture). But I cannot agree that Mr. Petty forfeited any part of his Geders claim. By objecting to the court’s communication ban, Mr. Petty clearly preserved his Sixth Amendment claim, with its attendant new-trial remedy. Mr. Petty’s counsel not only objected, repeatedly, to the trial court’s order as a violation of his client’s Sixth Amendment rights but also cited to multiple cases that make clear a Geders violation is not subject to a harmless-error inquiry and the only remedy is a new trial. See Perry, 488 U.S. at 280; Mudd v. United States, 798 F.2d 1509, 1513 (D.C. Cir. 1986); see also Geders, 425 U.S. at 91. As we have stressed in numerous cases, “[a]n objection is preserved . . . so long as it directed the mind of the court to the [correct] legal principle.” Evans v. United States, 304 A.3d 211, 219 (D.C. 2023) (internal quotation marks omitted). Counsel gave the court sufficient information to put it on notice that a mistrial was compelled. Moreover, my colleague’s argument that a defendant forfeits the right to a new trial if they do not object both to the underlying error and any subsequent action by the trial court short of granting a new trial is out of place in the context of a structural error. Cf. United States v. Cavallo, 790 F.3d 1202, 1212-13, 1218 (11th Cir. 2015) (concluding that defendant preserved his objection to a Geders violation and was entitled a new trial where trial court instructed defendant that he “could not discuss his testimony with ‘anyone,’” defendant objected, the trial court gave defendant additional time to review pertinent documents alone, and he did not object again). In the cases my colleague cites, see post at 28-29 (McLeese, J., concurring), we required defendants to object both to impermissible comments or evidence at trial and to the trial court’s curative instruction because the trial court had discretion to fashion a remedy that would address any prejudice from the alleged error. Lucas v. United States, 20 A.3d 737, 744-45 (D.C. 2011) (explaining that defendant could not show any prejudice from the error “that was not cured by the trial judge’s curative instruction”); Long v. United States, 910 A.2d 298, 305-06 (D.C. 2006) (rejecting defendant’s argument that the trial judge’s curative instruction “magnified rather than cured the [prosecutor’s] impropriety” (internal quotation marks omitted)). In that context, a defendant must object to the curative instruction or 21

request a mistrial to make clear their position that the court’s discretionary measure did not sufficiently address the underlying error’s prejudicial effect. See Lucas, 20 A.3d at 744. Where a trial court commits a structural error of the sort at issue in this case, however, a defendant is entitled to a new trial “regardless of the error’s actual ‘effect on the outcome.’” Weaver, 582 U.S. at 299; see also Clark, 301 A.3d at 265-66 (explaining that, through Geders and Perry, the Supreme Court adopted a per se rule for Geders violations “because they ‘pose such a fundamental threat to a fair trial that reversal of a conviction should be automatic’” (quoting Perry, 488 U.S. at 276)); Moore, 275 F.3d at 689 (reviewing a Geders violation raised on habeas and explaining that because a Geders violation “actually or constructively denie[s] the assistance of counsel altogether during trial court proceedings, the denial is reversible without a showing of prejudice”). A defendant need not separately request a mistrial after objecting to a structural error because the only permissible remedy is a new trial, absent a defendant’s knowing, intelligent, and voluntary waiver of their rights. See Martin, 991 A.2d at 796. And there is no need to signal through an objection that a court’s curative instruction or remedy was insufficient to address a trial error’s prejudicial effect when the error, by definition, cannot be rendered harmless. See Fortune, 59 A.3d at 956. My colleague’s forfeiture argument is also difficult to square with this court’s Geders caselaw in which we have said that even an unobjected-to Geders violation requires reversal and “inherently constitutes plain error” unless the government can show that a defendant intentionally and knowingly relinquished their right to confer with counsel. Martin, 991 A.2d at 794-96 (quoting Jackson, 420 A.2d at 1205). Deeming forfeited a defendant’s right to a new trial where defense counsel objects to a Geders violation but does not also request a mistrial would seem to impose a higher burden on preserved Geders claims than on unpreserved ones. Finally, I cannot agree with any suggestion by my concurring colleague that Mr. Petty “invited” an error by asking for a recess. Post at 29, 31 (McLeese, J., concurring). The invited error doctrine refers to courts’ “reluctan[ce]” to address an error that a party has “induced the tribunal to take.” District of Columbia v. Wical Ltd. P’ship, 630 A.2d 174, 183 (D.C. 1993). We have invoked the doctrine when, for example, a defendant agrees to a jury instruction during trial and then argues that instruction was erroneous on appeal. See e.g., Young v. United States, 305 A.3d 402, 429-30 (D.C. 2023); Masika v. United States, 263 A.3d 1070, 1077 (D.C. 2021). Here, Mr. Petty did not induce the trial court to violate his Sixth Amendment rights, rather he strongly objected to the order. And by the time his counsel requested the recess, the error had already occurred and there was nothing—short of granting 22

supra. And whether defense counsel represents that they had sufficient time to speak

with their client after a Geders violation is inconsequential as the right to counsel is

a personal right that defense counsel cannot waive on their client’s behalf. 5 See

Martin, 991 A.2d at 796 (explaining that “[f]or a waiver of the right to counsel to be

valid,” a defendant must knowingly and voluntarily waive that right).

Binding precedent precludes us from entertaining the government’s

“triviality” argument. But, even if we were writing on a blank slate, such an analysis

would be ill-advised because of the adverse consequences it would inevitably trigger.

First, assessing whether a Sixth Amendment violation was trivial “would

create an unacceptable risk of infringing on the attorney-client privilege.” See Mudd,

798 F.2d at 1513. Any serious attempt to discern whether other circumstances

mitigated a Geders violation, such that the order did not “meaningfully interfere[]

with the quality of advice and counsel the attorney [was] able to provide,” Triumph

Mr. Petty a new trial—that could be done to fix it. The invited error doctrine has no application to this case. 5 My concurring colleague’s opinion also registers “some doubt as to whether relief is warranted in this appeal, given that defense counsel . . . gave the court an assurance as to the adequacy” of the recess granted by the trial court. Post at 37 (McLeese, J., concurring). The dissent similarly points to defense counsel’s representations as evidence that the two-hour recess was “adequ[ate]” to protect Mr. Petty’s right to counsel. Post at 43 (Thompson, J., dissenting). I fail to see how defense counsel’s assurances are meaningful when only Mr. Petty could properly waive his Sixth Amendment right to counsel. See Martin, 991 A.2d at 796. 23

Cap. Grp., 487 F.3d at 135, would require asking a defendant in the midst of trial

“what he and counsel discussed, what they were prevented from discussing, and how

the order altered the preparation of his defense.” See Mudd, 798 F.2d at 1513.

“Presumably the government would then be free to question defendant and counsel

about the discussion that did take place, to see if defendant nevertheless received

adequate assistance.” Id. Such questioning is a significant intrusion into the

attorney-client relationship at a particularly sensitive time and risks exacerbating the

injury of the initial violation in the name of assessing whether the violation was

somehow trivial. Cf. id. (rejecting any inquiry into prejudice from a Geders violation

because it “would create an unacceptable risk of infringing on the attorney-client

privilege” and embracing a “per se rule” as one that “best vindicates the right to the

effective assistance of counsel”).

Second, allowing an assessment of whether a Geders violation was somehow

trivial would erode the fundamental right to counsel in a criminal proceeding.

Penson v. Ohio, 488 U.S. 75, 84 (1988) (“We have long recognized that ‘lawyers in

criminal courts are necessities, not luxuries’ [because] . . . it is through counsel that

all other rights of the accused are protected.”) (citing and quoting Gideon v.

Wainwright, 372 U.S. 335, 344 (1963)). The fundamental nature of the right to

counsel is precisely why courts have held that the deprivation of that right at a

“critical stage” of a defendant’s trial renders “a trial . . . unfair.” Cronic, 466 U.S. at 24

659 & n.25. Allowing courts to deem trivial a violation of the right to counsel that

we have said is inherently harmful would diminish this right. See, e.g., Jackson, 420

A.2d at 1204-05 (rejecting a harmless error standard in the context of a Geders

violation).

Third and relatedly, accepting the government’s logic would introduce an end-

run around our structural error precedent. We have held that certain errors are

“structural” because they “affect[] the framework within which the trial proceeds,”

and, thus, necessarily require reversal. Fortune, 59 A.3d at 956 (quoting Arizona v.

Fulminante, 499 U.S. 279, 310 (1991)). Assessing whether completed, structural

errors are nevertheless trivial would circumvent this precedent by downgrading

structural errors after they occur. This approach would chip away at the brightline

rules we have carefully drawn to protect fundamental constitutional rights.

IV. The Dissent’s Argument That There Was No Sixth Amendment

Violation Is Wrong

Although the government admits that the trial court’s order “violated

[Mr. Petty’s] Sixth Amendment right to counsel,” Br. for United States at 11, my

dissenting colleague takes the position that no Sixth Amendment violation occurred,

and we may affirm Mr. Petty’s conviction. See Post at 39-40 (Thompson, J.,

dissenting). This argument is incorrect for several reasons. 25

The dissent proposes that, because the trial court granted defense counsel a

recess to talk with Mr. Petty before resuming testimony, it is “as if” the order

violating Mr. Petty’s rights “had never been entered,” because “Mr. Petty’s access to

his counsel” was not denied, it was simply “delayed.” Id. at 39-40, 42. Such logic

requires shutting one’s eyes to the nineteen-and-a-half-hours during which Mr. Petty

faced a “sustained barrier to communication” with his counsel, see Geders, 425 U.S.

at 91, and misses the point that it is exactly that extended “interfere[nce]” with

attorney-client communications that the Supreme Court has prohibited, Perry, 488

U.S. at 280 (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). See also

id. at 283-84 (explaining that, “in the context of a long recess,” “[i]t is the

defendant’s right to unrestricted access to his lawyer for advice on a variety of trial-

related matters that is controlling” (emphasis added)).

The dissent’s argument that no Sixth Amendment violation occurred given

that Mr. Petty was granted a two-hour recess to speak with his counsel and “the

record gives us no reason to think that the next-day consultation was any less

effective” is also wrong because it hinges on a prejudice inquiry. Post at 44-45, 44

n.5 (Thompson, J., dissenting). The dissent’s analysis compares the efficacy of

attorney-client communication during an overnight recess with Mr. Petty’s ability to

speak with his attorney during the two-hour recess; in other words, the dissent

assesses whether there is any harm from having the conversation later rather than 26

sooner (and assumes there is none). See id. at 44-46, 44 n.5 (explaining that

prejudice “is the effect that restricting communication may have on the defendant’s

trial” (internal quotation marks omitted)). But such a prejudice inquiry is

indisputably foreclosed by Supreme Court and our precedent. See Perry, 488 U.S.

at 280 (stating that a Geders violation “is not subject to [a] prejudice analysis”);

Martin, 991 A.2d at 793 (explaining that a Geders violation “requires reversal

without any showing of prejudice”); see also post at 44 n.5 (Thompson, J.,

dissenting) (agreeing that an analysis of prejudice has “no place following a Geders

violation”).

Similarly, the dissent argues that, even if the trial court’s order did violate

Mr. Petty’s Sixth Amendment rights, the two-hour recess the next day “cured” that

violation. Post at 47-48 (Thompson, J., dissenting). But as my concurring colleague

points out, there appears to be no daylight between an impermissible inquiry into

whether a defendant was prejudiced by the court’s order and an inquiry into whether

a Geders violation has been “cured.” See post at 37 (McLeese, J., concurring). The

only way for a defendant to argue that a “curative” action was insufficient would be

to argue that they were still prejudiced by the trial court’s order, a position that is

irreconcilable with precedent from our court and the Supreme Court. See supra.

Moreover, the dissent has no support for the argument that the response to a

completed structural error can be anything other than the grant of a new trial. Indeed, 27

the precedent the dissent cites to makes plain that the only permissible action

following a completed Sixth Amendment violation “is a new trial.” Id. at 47-48

(Thompson, J., dissenting) (quoting United States v. (Joseph R.) Jackson, 395 F.2d

615, 618 (D.C. Cir. 1968)). To be clear, granting a new trial does not “cure” the error

in the previous trial. Rather, reversal of the conviction is the cure, and we allow a

new trial following a reversal because the subsequent trial is not barred by the

Double Jeopardy Clause. See Tibbs v. Florida, 457 U.S. 31, 39-40 (1982).

* * *

The Supreme Court has already defined in Perry the only permissible

exception to the Geders rule that a court order preventing a defendant from

consulting with their attorney violates a defendant’s right to counsel and requires

reversal. The “thin” line between a brief interruption of attorney-client

communications under Perry that does not violate the Sixth Amendment and a more

substantial interruption under Geders may be difficult at times to discern, see Perry,

488 U.S. at 280, but not in Mr. Petty’s case. The court order depriving Mr. Petty of

the right to counsel for nineteen-and-a-half hours in the midst of trial puts the

interruption of his communications with his lawyer squarely on the Geders line of

the divide. See Geders, 425 U.S. at 89 (examining a seventeen-hour limit on

attorney-client communication). Mr. Petty need not prove the gravity of this error; 28

we have already established that such an error is “presumptively prejudicial.”

Martin, 991 A.2d at 794 (quoting Jackson, 420 A.2d at 1205). We therefore cannot

say that the violation of Mr. Petty’s Sixth Amendment rights was “trivial,” regardless

of any measures the trial court may have taken after the fact. Because Mr. Petty’s

Sixth Amendment right to confer with his counsel during an overnight recess was

violated, I agree that we must reverse Mr. Petty’s conviction for a new trial.

MCLEESE, Associate Judge, concurring in the judgment: Mr. Petty argues that

the trial court violated Mr. Petty’s constitutional right to the assistance of counsel by

ordering Mr. Petty not to consult with his defense attorney regarding his testimony

during an overnight recess taken during a break in his trial testimony. I agree that

the trial court’s order was erroneous. See Martin v. United States, 991 A.2d 791, 793

(D.C. 2010) (“[A]n order prohibiting a defendant from conferring with . . . counsel

during an overnight (or other significant) interruption of [the defendant’s] testimony

is a denial of the defendant’s Sixth Amendment right to counsel . . . .”).

Mr. Petty further argues that only a new trial can remedy that error. The latter

argument was arguably forfeited, however, because Mr. Petty’s counsel requested a

different remedy during the trial and the trial court granted that remedy: a recess

before any evidence was taken in which Mr. Petty and his counsel were free to

discuss Mr. Petty’s testimony. For example, in Lucas v. United States, 20 A.3d 737, 29

744-45 (D.C. 2011), this court applied the plain-error standard to a claim raised on

appeal and held that reversal was required based on the prosecution’s impermissible

introduction of the defendant’s post-arrest, pre-Miranda silence. In that case, the

prosecutor questioned a police officer about the defendant’s lack of reaction when

the defendant was arrested; defense counsel objected; the trial court sustained the

objection and granted the remedy requested by defense counsel, by giving a curative

instruction, and defense counsel “did not ask for a mistrial or object that the

corrective action taken by the court was insufficient.” Id. at 744. See also, e.g.,

Young v. United States, 305 A.3d 402, 430 (D.C. 2023) (“[T]he invited error doctrine

precludes a party from asserting as error on appeal a course that [the

party] . . . induced the trial court to take.”) (brackets and internal quotation marks

omitted); Long v. United States, 910 A.2d 298, 305 (D.C. 2006) (applying plain-error

standard to claim on appeal that reversal was required to remedy impermissible

prosecutorial closing argument, where trial court responded to contemporaneous

objection by giving cautionary instruction and defense counsel did not object to

curative instruction or request mistrial); Battocchi v. Washington Hosp. Ctr., 581

A.2d 759, 769 (D.C. 1990) (by acquiescing in different remedy, appellants “waived”

argument that “mistrial was the only adequate remedy”). 30

In my view, the cited cases provide significant support for the idea that

Mr. Petty forfeited his claim on appeal that the trial court’s remedy in this case was

inadequate and that a mistrial was required. The cited cases (among others) illustrate

that this court has repeatedly applied the plain-error doctrine in cases where a party

objected in the trial court, the trial court sustained that objection and granted some

form of remedy, and the party argued for the first time on appeal that a different

remedy, such as a mistrial, should have been granted.

Such cases reflect the core purpose of the plain-error rule: to encourage timely

and specific objections in order “to alert the trial court and give it an opportunity to

correct the error.” Chatmon v. United States, 801 A.2d 92, 100 (D.C. 2002); see also,

e.g., Austin v. United States, 64 A.3d 413, 419 (D.C. 2013) (“To avoid plain error

review, objections must be made with reasonable specificity; the trial court must be

fairly apprised as to the question on which it is being asked to rule.”) (brackets and

internal quotation marks omitted). If the trial court sustains an objection and grants

some form of remedy short of a mistrial, a party who believes that only a mistrial

can remedy the problem is required to alert the trial court of that position. That way

the trial court will be put on notice that the party believes that a mistrial is necessary,

and the trial court can consider and rule upon the specific question whether a mistrial

is necessary or other remedies would suffice. In the present case, Mr. Petty’s 31

attorney did not argue to the trial court that the remedy the trial court provided was

inadequate and that instead a mistrial had to be declared. To the contrary, Mr. Petty’s

attorney requested a remedy short of mistrial, was given that remedy, and assured

the trial court that the remedy had turned out to be sufficient. The trial court therefore

understandably did not rule on the question whether a mistrial was required.

In a footnote, the lead concurrence expresses the view that the well-settled

rule that a party who wants a mistrial needs to ask the trial court for one rather than

acquiescing in a different remedy “is out of place in the context of structural error.”

Supra at 20 n.4. The lead concurrence, however, cites no case that has so held.

In any event, the United States has not argued that Mr. Petty forfeited his

claim, and this court normally does not consider arguments that the parties have not

raised. See, e.g., Rose v. United States, 629 A.2d 526, 535 (D.C. 1993) (“It is a basic

principle of appellate jurisprudence that points not urged on appeal are deemed to be

waived. That principle applies to the government no less than to the defendant in a

criminal case. . . . Courts generally decline to consider arguments thus waived—

even where the waived point might arguably have led to affirmance of a

conviction.”) (footnote omitted). I see no extraordinary circumstances that should

lead this court to consider an issue of forfeiture that the United States did not raise. 32

The United States does argue that reversal is not required because the trial

court’s error was rendered “trivial” by Mr. Petty’s opportunity to discuss his

testimony with defense counsel during the recess the next morning before any further

evidence was introduced. In support of that argument, the United States relies

primarily on United States v. Triumph Cap. Grp., Inc., 487 F.3d 124 (2d Cir. 2007).

In that case, the trial court banned one of the defendants from discussing his

testimony with defense counsel during an overnight recess in the middle of the cross-

examination of that defendant. Id. at 127-28. Although the trial court rescinded that

order approximately three hours later, defense counsel did not talk with the

defendant that night. Id. at 128. According to defense counsel, doing so was not

feasible by the time the order was rescinded. Id. The next morning, the trial court

gave the defendant “as much time as he needed to discuss the case” with defense

counsel. Id. Defense counsel nevertheless moved for a mistrial, arguing that a

morning discussion would not be equivalent to a prompt discussion immediately

after the trial recessed the night before. Id. at 128-29. The trial court denied the

motion for a mistrial. Id. at 129.

On appeal, the Second Circuit held that, under the circumstances, the

overnight ban was “trivial” and did “not amount to a constitutional violation.”

Triumph, 487 F.3d at 124, 134. In reaching that conclusion, the Second Circuit relied 33

on a number of circumstances of the case: the ban restricted only discussion of

testimony rather than all communication; defense counsel was promptly informed

that the ban might be lifted; the ban was lifted after three hours; defense counsel

could have arranged to speak with the defendant the night the ban was lifted; the

defendant was given as much time as he needed to speak with counsel the next

morning; and there was no bad faith on the part of the prosecution or the trial court.

Id. at 137.

In my view, the reasoning and outcome of Triumph are not consistent with our

decision in Martin, 991 A.2d at 793-96. In Martin, the trial court banned Mr. Martin

from discussing his testimony with defense counsel during a weekend recess in the

middle of the cross-examination of Mr. Martin. 991 A.2d at 793-94. Mr. Martin’s

trial counsel did not object to the ban. Id. at 793. This court held that reversal was

required notwithstanding the absence of an objection, the absence of specific

evidence that Mr. Martin was prejudiced in any way, and the absence of evidence

that Mr. Martin even wanted to speak with his counsel over the weekend. Id. at 793-

96. We explained that “deprivation of counsel’s assistance is presumptively

prejudicial and, this right being transcendent, inherently constitutes plain error.” Id.

at 794 (internal quotation marks omitted). 34

I note that both the Supreme Court and this court have held that “a per se

approach to plain-error review is flawed.” Barrows v. United States, 15 A.3d 673,

680 (D.C. 2011) (quoting Puckett v. United States, 556 U.S. 129, 142 (2009) (internal

quotation marks omitted)); see also id. (whether error seriously affects fairness,

integrity, or public reputation of judicial proceedings for purposes of plain-error

review must be determined “on a case-specific and fact-intensive basis”) (quoting

Puckett, 556 U.S. at 142 (internal quotation marks omitted)). Because the United

States has not argued in this case that Mr. Petty’s claim is subject to review under

the plain-error standard or the invited-error standard, I have no occasion to decide

whether the “per se plain error” approach reflected in Martin is good law. I do note,

however, that Weaver v. Massachusetts, 582 U.S. 286, 296 (2017), cited by the lead

concurrence (supra at 17 n.3), was clearly referring to the complete denial of counsel

when it said that “if an indigent defendant is denied an attorney . . . , the resulting

trial is always a fundamentally unfair one.” Id. (citing Gideon v. Wainwright, 372

U.S. 335, 343-45 (1963) (Sixth Amendment right to counsel violated where

defendant was tried without any assistance of counsel)). I do not view Weaver as

establishing that even partial denials of the right to counsel require reversal per se

under the plain-error standard. 35

Whatever its validity in cases in which a claim of error was not properly

preserved in the trial court, Martin remains good law to the extent that it holds that

impermissible bans on a defendant’s discussions with defense counsel are presumed

to be prejudicial, with no need for a case-specific demonstration of prejudice. 991

A.2d at 793-96. Although the court did not use the term in Martin, in essence the

court held that such errors are “structural errors,” which (when properly objected to

at trial) are deemed “so intrinsically harmful as to require reversal without regard to

their effect on the particular trial’s outcome.” Fortune v. United States, 59 A.3d 949,

956 (D.C. 2013) (internal quotation marks omitted).

I do not see how our holding in Martin can be squared with the Second

Circuit’s decision in Triumph. First, our decision in Martin to treat impermissible

bans on a defendant’s consultation with counsel as presumptively prejudicial and

intrinsically harmful seems incompatible with Triumph’s conclusion that such errors

can sometimes be deemed “trivial.” Second, as previously noted, Martin applied the

presumption of prejudice to an impermissible ban even though there was no case-

specific evidence that Mr. Martin was prejudiced by the ban or even wished to speak

to defense counsel during the period of the ban. 991 A.2d at 793-96. Although some

efforts were made in Triumph to ameliorate the consequences of the impermissible

ban, defense counsel in Triumph made case-specific representations that the 36

impermissible ban had nevertheless interfered with his ability to consult with the

defendant. 487 F.3d at 128-29. The Second Circuit gave no reason to doubt those

representations. Id. at 124-37. Under the reasoning of Martin, it seems to me that

reversal was required in Triumph.

One could wonder whether applying a flat rule of “per se prejudice” to all

impermissible bans on a defendant’s consultation with defense counsel is overbroad,

because it might be possible in at least some circumstances for a trial court to take

adequate curative measures to ensure that in fact no such prejudice occurred.

Whatever the merits of that line of thought as an original matter, however, I conclude

that adopting such an approach would run afoul of our decision in Martin to apply a

flat rule presuming such errors to be prejudicial and requiring reversal without a

case-specific inquiry into prejudice. Martin, 991 A.2d at 793-96. For that reason, I

do not think that a division of this court would be free to follow the two other

decisions the United States relies upon as factually similar to this case. See People

v. Tetro, 109 N.Y.S.3d 776, 780 (App. Div. 2019) (declining to reverse defendant’s

convictions, despite order initially banning defendant from discussing testimony

with defense counsel during weekend recess, where trial court rescinded order later

that same day; defendant and defense counsel were thereafter able to consult over

weekend, although not in person; court provided defendant and defense counsel as 37

much time as they needed to further consult before trial resumed; and such

consultation occurred); People v. Umali, 888 N.E.2d 1046, 1050-51 (N.Y. 2008)

(declining to reverse defendant’s conviction, despite order initially banning

defendant from discussing testimony with defense counsel during four-day recess,

where trial court rescinded order less than three hours after defense counsel objected;

defendant and defense counsel had 2-1/2 days thereafter to consult; and “there was

no indication that counsel believed additional consultation time was necessary”).

The dissent concludes that decisions such as Geders and Martin can be read

as limited to circumstances in which no adequate curative measures were taken at

trial. Infra at 38-50. That position seems to me to have reasonable force. I

ultimately am not persuaded, however, primarily because I have been unable to

perceive a meaningful distinction between an inquiry into lack of prejudice, which

is an inquiry that our cases foreclose, and an inquiry into whether there were

adequate curative measures.

As an original matter, I have some doubt as to whether relief is warranted in

this appeal, given that defense counsel specifically requested a remedy short of a

mistrial, was granted that remedy, and gave the court an assurance as to the adequacy

of the remedy. As I have explained, however, the United States has not argued that

Mr. Petty’s claim of error was not properly presented, and I do not believe that this 38

court should reach that issue sua sponte. Treating Mr. Petty’s claim of error as

properly preserved, I agree that our decision in Martin requires us to set aside

Mr. Petty’s conviction. I therefore concur in the judgment.

THOMPSON, Senior Judge, dissenting: In Geders v. United States, 425

U.S. 80 (1976), the Supreme Court held that a trial court order preventing the

defendant “from consulting his counsel ‘about anything’ during a 17-hour overnight

recess between his direct- and cross-examination impinged upon his” Sixth

Amendment right to the assistance of counsel. Id. at 91. In (Reginald A.) Jackson

v. United States, 420 A.2d 1202 (D.C. 1979) (en banc), our court concluded that

because Mr. Jackson’s right to counsel was violated by the trial court’s order

preventing consultation with his counsel, the “conviction must be set aside

regardless of whether prejudice was demonstrated, and despite [the defendant’s]

failure to remonstrate against the court’s order.” Id. at 1205. We said that “reversal

is required . . . when a defendant is deprived of counsel’s guiding hand during a

critical stage of the proceedings.” Id. at 1203-04. And in Martin v. United States,

991 A.2d 791 (D.C. 2010), we reiterated that “an order prohibiting a defendant from

conferring with . . . counsel during an overnight (or other significant) interruption of

[the defendant’s] testimony is a denial of the defendant’s Sixth Amendment right to

counsel.” Id. at 793. We held that the trial court’s order directing Mr. Martin “not 39

to speak to his attorney about his testimony over a weekend recess that interrupted

his cross-examination . . . was plain error necessitating reversal.” Id. at 792.

In the instant case, the court’s initial order with which we are concerned (the

“sequestration order”), issued when court adjourned for the day in the middle of

Mr. Petty’s testimony on cross-examination, prohibited Mr. Petty from discussing

his testimony with defense counsel during an overnight recess. There can be no

dispute that, left to stand, the sequestration order would have violated Mr. Petty’s

Sixth Amendment right to the assistance of counsel. But, importantly, the trial court

rescinded its order after the parties came back on the record the following day—and

did so before testimony resumed and before taking up any other business in the

case—telling counsel to “have at it” (i.e. to discuss whatever counsel wished to

discuss with Mr. Petty) during an almost-two-hour resumption of the overnight

recess. After that resumption of the overnight recess (which the trial court aptly

termed a “two-hour recess before we start”), Mr. Petty’s trial counsel told the court

that he had had an opportunity to speak with Mr. Petty in the way that he had wished,

meaning in part that he was able to answer the questions that Mr. Petty had “wanted

to talk to” counsel about on the previous evening.

In my view, on the facts of this case, the trial court’s next-day rescission of its

sequestration order had the effect of negating the sequestration order, making it as if 40

it had never been entered and averting a per se reversible Sixth Amendment

violation.1 The critical fact of this case, which the concurrences do not describe, is

that between issuance of the sequestration order and the rescission of that order, the

only trial proceedings that occurred were further discussion of the sequestration

order that led the trial court to abandon it. Cross-examination of Mr. Petty did not

resume before he and his counsel were able to speak (for about two hours) about his

upcoming testimony and other matters; no other witness testified; and the court did

not consider or decide any other matter, i.e., the court did not hear argument on any

topic as to which trial counsel’s arguments might have been informed by an

opportunity to speak with Mr. Petty. These facts make this lengthy-recess case

materially different from Geders, (Reginald A.) Jackson, and Martin. 2

In Geders, the post-sequestration-order opportunity for the defendant and his

counsel to consult did not occur until after the defendant had been required, on the

1 Cf. United States v. Triumph Cap. Grp., Inc., 487 F.3d 124, 127, 128, 135, 136 (2d Cir. 2007) (holding that where the trial court rescinded its sequestration order after three hours and, on the following day, the defendant was given the time he needed to confer with his attorney before the day’s testimony began [resuming the witness stand for cross-examination], the order did not “meaningfully interfere with [or violate] the defendant’s Sixth Amendment rights to effective assistance of counsel.”). 2 In Perry v. Leeke, the Supreme Court held that the Constitution did not compel the trial judge to allow the defendant to consult with his lawyer during a 15- minute recess taken after the end of his direct testimony and before his cross- examination commenced. 488 U.S. 274, 284-85 (1989). 41

morning after the order was issued, to complete his reopened direct examination and

undergo cross-examination, both without the benefit of having spoken with his

counsel. See 425 U.S. at 83-84. In Martin, where the order precluded Martin from

speaking to counsel from “past 4:45” pm on Friday until 10:30 on Monday, there

were several trial developments before there was another break that might have

provided an opportunity for consultation. Specifically, Martin completed his

testimony, the defense called two more witnesses, the government presented a

rebuttal witness, and a variety of important motions matters were argued or resolved

(including, inter alia, a motion in limine to introduce Martin’s co-defendant’s

interview statement to police that raised a Bruton issue, the government’s motion to

lead a rebuttal witness, Martin’s motion for a mistrial, and Martin’s opposition to a

flight/concealment instruction), and the government rested. As Martin put it in the

supplemental brief he filed on the Geders issue, the infringement of his Sixth

Amendment right to counsel “happened at a critical time,” just before “what turned

out to be one of the most important days of trial.”

In (Reginald A.) Jackson, the trial court order directed the defendant to

“discuss nothing with anyone, not even [his] lawyer” during a luncheon recess after

his lawyer had finished with his direct examination. 420 A.2d at 1202, 1203. Thus, 42

impliedly (the opinion doesn’t specifically say), Mr. Jackson had no access to

counsel before his cross-examination commenced and was completed. 3

By contrast to Geders, (Reginald A.) Jackson, and Martin, in Mr. Petty’s case,

rescission of the July 12, 2022, sequestration order before any further trial

proceedings ensued the next day meant that while Mr. Petty’s access to his counsel

was delayed, there effectively was no “sustained barrier to communication” with

counsel, Geders, 425 U.S. at 91; there was no entire “prohibit[ion] . . . from

conferring with . . . counsel during an overnight” recess, Martin, 991 A.2d at 792;

and there was no complete “prevent[ion of the defendant’s] consulting” counsel

during the entirety of the lengthy break in the proceedings, (Reginald A.) Jackson,

420 A.2d at 1202. There was no “depriv[ation] of counsel’s guiding hand during a

critical stage of the proceedings,” id. at 1204, and no “changing trial situation[],” id.

at 1205, that ensued before Mr. Petty was able to consult with his counsel. “[A]t no

point in the trial did [Mr. Petty] have to proceed without having an opportunity to

receive the unrestrained advice and counsel of his attorney.” Triumph Cap., 487 F.3d

3 Cf. United States v. Cobb, 905 F.2d 784, 786, 792-93 (4th Cir. 1990) (reversing Mr. Cobb’s conviction where the trial court had ordered him not to discuss his ongoing testimony with anyone, including his attorney, during the weekend recess after court adjourned in the middle of the government’s cross- examination of him, “effectively eviscerat[ing] his ability to discuss and plan strategy” regarding his ongoing testimony). 43

at 136. Effectively, the sequestration order prohibited communication only during

the first several hours of the extended recess. I do not doubt that, as the Second

Circuit observed in Triumph Capital, “most . . . ‘overnight recess’ consultations

between a defendant and his counsel likely happen—and often reasonably can only

happen—during the hours immediately following the recess of the trial.” 487 F.3d

at 133. But a next-day consultation before the trial proceedings resumed (with

respect to anything other than discussion of the sequestration order itself) happened

in this case, and we are not entitled to ignore that fact.

It is true that Mr. Petty and his counsel were afforded limited time (two hours)

to speak before trial resumed, but two hours was the time requested by counsel based

on his assessment of how much time Mr. Petty needed for understanding and

guidance, and counsel confirmed after the two hours that the time had been

sufficient. Counsel’s assessment is of paramount importance, as it was “the function

of counsel,” and “not the function of the trial judge [and it is not this court’s function]

to decide . . . how much consultation between a defendant and [their] . . . counsel is

necessary.” (Reginald A.) Jackson, 420 A.2d at 1205 (internal quotation marks

omitted). Moreover, the record provides no basis to question either the

reasonableness of defense counsel’s carefully explained request for additional time

to consult, or the adequacy of the consultation between defense counsel and

Mr. Petty during that time period. 44

In my view, for the foregoing reasons, our precedents do not compel us to

reverse Mr. Petty’s conviction. Surely our precedents do not mean that if the trial

court had retracted its unlawful sequestration order very shortly after issuing it,

reversal would still be mandated. 4 Cf. Clark v. State, 301 A.3d 241, 277 (Md. 2023)

(observing that an objection to a lengthy no-communication order “if sustained,

would cure the error”). What happened here is not different in any meaningful way

because, again, once the sequestration order was lifted, Mr. Petty and his counsel

were able to confer without restriction before the proceedings recommenced, and

also because there is nothing sacrosanct about consultation during the early hours of

a lengthy recess. 5 As Justice Marshall agreed in his dissenting opinion in Perry v.

4 Cf. United States v. Santos, 201 F.3d 953, 966 (7th Cir. 2000) (observing that the approach of requiring reversal because of an order that flatly prohibited consultation between a criminal defendant and his lawyer during a substantial recess, even if the order was of limited duration, “is in some tension with the narrowing of the scope of automatic reversal in recent decisions by the Supreme Court”). 5 I want to be clear that I am not relying on what Judge McLeese calls a “case- specific inquiry into prejudice” of the type Martin eschewed, or on a prejudice analysis or harmless error analysis—an “assessment[] of the . . . adverse impact [of the sequestration order] on the trial”—that Judge Easterly rightly emphasizes has “no place following a Geders violation.” But I do observe that the record gives us no reason to think that the next-day consultation was any less effective or productive than a consultation on the previous evening would have been. For all that can be known, the next-day consultation was more effective and productive than an evening one(s) would have been, because it took place after both counsel and client had the benefit of time to reflect on what had occurred during the previous day’s proceedings. 45

Leeke, 488 U.S. 272 (1989), deprivation of access to counsel during an overnight

recess “may entail a deprivation of little more than . . . fifteen minutes . . . because

many attorneys will devote the vast majority of such an extended break to

preparation for the next day of trial, while sending the client home to sleep, or back

to jail.” Id. at 294-295 (Marshall, J., dissenting) (internal quotation marks omitted).

Moreover, we know from Geders that a defendant does not necessarily have a Sixth

Amendment right to consult with his counsel at the particular moment or moments

when he or counsel might prefer. See 425 U.S. at 90 (stating that if the trial judge

believes that there is a high risk that defense counsel will not, during a trial recess,

observe the ethical limits on guiding the defendant as a witness, the judge “may

arrange the sequence of testimony so that direct- and cross-examination . . . will be

completed without interruption”); see also Perry, 488 U.S. at 281 (a defendant “has

no constitutional right to consult with [counsel] while he is testifying.”).

I think I would join my colleagues in concluding that reversal is warranted if the record disclosed some reason why the opportunity for Mr. Petty to speak with his counsel before trial started again on July 13 was compromised in some way—if, for example, the record showed that counsel or client was not feeling well on July 13, or that the temperature in the witness room where Mr. Petty and his counsel conferred was uncomfortable; or if Mr. Petty’s counsel had told the court, even with no elaboration or explanation, that the two hours had not been sufficient. So, I would not hold that an otherwise unconstitutional ban on attorney-defendant communication would automatically be cured by providing the defendant with substantial time to consult with his attorney immediately prior to resuming his testimony. But the record here discloses no circumstance such as I have posited. 46

In its decision in Mudd v. United States, 798 F.2d 1509 (D.C. Cir. 1986), the

D.C. Circuit explained why a reversal without an inquiry into prejudice to the trial

outcome is appropriate where the trial court has issued an sequestration order that

prevents a defendant from consulting with his counsel during a lengthy trial recess.

See id. at 1513. The D.C. Circuit reasoned that reversal only upon a showing of

prejudice “would create an unacceptable risk of infringing on the attorney-client

privilege” because “[t]he only way that a defendant could show prejudice would be

to present evidence of what he and counsel discussed, what they were prevented

from discussing, and how the order altered the preparation of his defense,” matters

about which the government would then presumably be free to question defendant.

Id. Again, I do not suggest in derogation of such valid concerns that Mr. Petty should

be required to show that he was prejudiced by the sequestration order. (“Prejudice,”

it should be noted, “is the effect that restricting communication may have on the

defendant’s trial”; 6 here, an assessment of prejudice would entail assessing whether

and how Mr. Petty’s trial strategy was affected by the sequestration order.) Nor do

I suggest that Mr. Petty should be required to prove that he wished to speak with his

counsel while the sequestration order was in effect; indeed, although I agree with

6 Bailey v. Redman, 657 F.2d 21, 24 (3d Cir. 1981) (noting the recognized distinction between an actual deprivation of the Sixth Amendment right to counsel (which is a “predicate to relief”) and “the ‘prejudice’ that may result therefrom”). 47

my colleagues that our cases foreclose requiring such proof, I accept that Mr. Petty

did wish to speak with his counsel, because counsel told the court that Mr. Petty had

questions he had “wanted to talk [about]” with counsel. My point is rather that

rescission of a sequestration order, accompanied by an order affording time for

consultation with counsel that is adequate according to counsel’s assessment,

negates or cures the sequestration order, such that, effectively, “no [S]ixth

[A]mendment violation occurs.” Id. at 1514; see also Triumph Cap., 487 F.3d at

135. Stated differently, my point is that it is a trial court order “prohibiting all

communication between defendant and counsel about the case during an overnight

recess in a criminal trial, without any curative action, [that] result[s] in the actual

denial of the assistance of counsel in violation of the Sixth Amendment.” Clark, 301

A.3d at 279 (emphasis added).

It has been suggested that a Geders/(Reginald A.) Jackson/Martin violation

cannot be cured, i.e., that while a new trial is permitted when there has been such a

violation, the new trial does not function as a cure. I disagree because I believe

binding precedent requires us to recognize that a presumptively prejudicial Sixth

Amendment violation can be cured by granting the defendant a new trial at which

no such order is entered. See United States v. (Joseph R.) Jackson, 395 F.2d 615,

617 (D.C. Cir. 1968). In (Joseph R.) Jackson, it came to light post-trial that the jury

had not been the impartial jury guaranteed by the Sixth Amendment because of facts 48

about one of the jurors that caused the D.C. Circuit to presume that the juror lacked

the requisite impartiality. Id. at 618. The court held that the “risk of prejudice as to

this juror was such that the only cure is a new trial.” Id. at 617 (emphasis added);

see also Martin, 991 A.2d at 796 (holding that unlawful sequestration order “entitles

appellant to a new trial”). Here, however, there is no need for the cure of a new trial

because the error was cured mid-trial.

I see no reason why we should read the relevant precedents as requiring us to

ignore the curative action that occurred here and as tying our hands in the way the

two concurrences describe. Rather, while considering those precedents, we should

be guided by the maxim not to be disregarded, that “general expressions, in every

opinion, are to be taken in connection with the case in which those expressions are

used. If they go beyond the case, they may be respected, but ought not to control the

judgment in a subsequent suit when the very point is presented for decision.” Ark.

Game & Fish Comm’n v. United States, 568 U.S. 23, 35 (2012) (quoting Cohens v.

Virginia, 19 U.S. (6 Wheat) 264, 399-400 (1821)).

In Arkansas Game & Fish, the Supreme Court construed a sentence in its prior

opinion in Sanguinetti v. United States, 264 U.S. 146, 149 (1924), which stated in

relevant part that “in order to create an enforceable liability against the Government

[for a taking of flooded property], it is, at least, necessary that the overflow . . . 49

constitute an actual, permanent invasion of the land.” 568 U.S. at 34-35. The Court

declined to “extract from this statement [about the need for a “permanent invasion

of the land”] a definitive rule that there can be no temporary taking caused by

floods.” Id. at 35. The Court instead “reject[ed] a categorical bar to temporary-

flooding takings claims,” id. at 36, explaining that “[t]he sentence in question was

composed to summarize the flooding cases the Court had encountered up to that

point, which had unexceptionally involved permanent, rather than temporary,

government-induced flooding,” id. at 35. The Court admonished that “[f]looding

cases, like other takings cases, should be assessed with reference to the particular

circumstances of each case.” Id. at 37 (internal quotation marks omitted).

By analogy, I believe it is fair to say here that this court’s statement in Martin,

that a trial court order directing the defendant not to speak to his attorney about his

testimony over a lengthy recess that interrupted his cross-examination

“necessitat[es] reversal,” 991 A.2d at 792, fairly reflected the sequestration cases our

court had encountered up to that point, which had involved sequestration orders left

to stand until testimony resumed. The statements in Martin and (Reginald) Jackson

about “error necessitating reversal” should not be deemed a categorical bar to

affirmance in this case, where the particular circumstance was the trial court’s lifting

of its sequestration order and allowance of time for Mr. Petty and his counsel to

consult before testimony resumed. See Kraft v. Kraft, 155 A.2d 910, 913 (D.C. 1959) 50

(“It is well to remember that significance is given to broad and general statements

of law only by comparing the facts from which they arise with those facts to which

they supposedly apply.”).

In my view, the case law does not require the per se reversal the court has

ordered. Therefore, and for all the foregoing reasons, I respectfully dissent.