Bradley v. Henry,

No. 04-15919 (6-22-05). This is a habeas in which the petitioner, at the state trial, was not present when the court discussed with counsel the motion for new counsel. The 9th found this a critical stage, and that the petitioner must be present. The petitioner was facing felony murder charges, among other offenses, and possibly the death penalty. She went through a string of counsel, some hired by her controlling father, and counsel invariably would have a falling out, or not get paid, and be replaced. The court got impatient. At one hearing, counsel spoke of being at odds with petitioner, perhaps because of the threats, and moved for replacement. It was this meeting, in chambers, that the petitioner was not present at. The 9th found that the state courts had gone against Supreme Court holdings. Indeed, the 9th (Noonan) spent a great deal of time discussing what is or isn't precedent, dictum, and how to discern what is explicit and implicit. The prior cases as to what is a critical stage were discussed and contrasted. Ferguson, concurring, wrote to stress the Sixth Amendment right to choose counsel. Rymer, in dissent, would find that the state courts had acted reasonably and that the circumstances were such (a lot of lawyer churning going on) that the petitioner didn't have to be present