PERRY V. LEEKE, 488 U. S. 272 (1989)

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U.S. Supreme Court

Perry v. Leeke, 488 U.S. 272 (1989)

Perry v. Leeke

No. 87-6325

Argued November 8, 1988

Decided January 10, 1989

488 U.S. 272


At the conclusion of petitioner's direct testimony in his state court trial for murder and related offenses, the trial judge declared a 15-minute recess and ordered that petitioner not be allowed to talk to anyone, including his lawyer, during the break. In affirming petitioner's conviction, the South Carolina Supreme Court ruled that Geders v. United States, 425 U. S. 80 -- in which it was held that a trial court's order directing a defendant not to consult his attorney during an overnight recess, called while the defendant was on the witness stand, violated his Sixth Amendment right to the assistance of counsel -- did not require reversal, since this Court had there emphasized the fact that a defendant would "normally confer" with counsel during an overnight recess, and had explicitly disclaimed any intent to deal with limitations imposed in other circumstances. The state court declared that, normally, counsel is not permitted to confer with his client between direct and cross-examination. Subsequently, the Federal District Court granted petitioner a writ of habeas corpus, but the Court of Appeals reversed. Although agreeing with the District Court that Geders applied, and that constitutional error had occurred, the court disagreed with the lower court's ruling that a defendant subjected to a Geders violation need not demonstrate prejudice in order to have his conviction set aside. The court concluded that petitioner's conviction should stand because the trial court's error was not prejudicial under Strickland v. Washington, 466 U. S. 668, in that the evidence against petitioner was overwhelming, and there was no basis for believing that his testimony on cross-examination would have been different had he been given an opportunity to confer with his counsel during the recess.


1. A showing of prejudice is not an essential component of a violation of the Geders rule, in light of the fundamental importance of the criminal defendant's constitutional right to be represented by counsel. By citing Geders in distinguishing between direct governmental interference with that right and denial of the right by virtue of counsel's ineffective assistance, Strickland made clear that the complete denial of the right by the government is not subject to the kind of prejudice analysis that is appropriate

Page 488 U. S. 273

in determining whether the quality of a lawyer's performance itself has been constitutionally ineffective. Pp. 488 U. S. 278-280.

2. However, the Federal Constitution does not compel a trial judge to allow a criminal defendant to confer with his attorney during a brief break in his testimony. It is an empirical predicate of our system of justice that, quite apart from any question of unethical "coaching," cross-examination of an uncounseled witness, whether the defendant or a nondefendant, following direct examination is more likely to lead to the discovery of truth than is cross-examination of a witness given time to pause and consult with his lawyer. Thus, although it may be appropriate to permit such consultation in individual cases, the trial judge must nevertheless be allowed the discretion to maintain the status quo during a brief recess in which there is a virtual certainty that any conversation between the witness and his lawyer would relate exclusively to his ongoing testimony. The long interruption in Geders was of a different character, because the normal consultation between attorney and client that occurs during an overnight recess would encompass matters that the defendant does have a constitutional right to discuss with his lawyer -- such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain -- and the fact that such discussions will inevitably include some consideration of the defendant's ongoing testimony does not compromise that basic right in that instance. Pp. 488 U. S. 280-285.

832 F.2d 837, affirmed.

STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J.,and WHITE, O'CONNOR, and SCALIA, JJ., joined, and in Parts I and III of which KENNEDY, J., joined. KENNEDY, J., filed an opinion concurring in part, post, p. 488 U. S. 285. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 488 U. S. 285.

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