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Name: McNeal v. Adams
Case #: 08-16472
Court: US Court of Appeals
District 9 Cir
Opinion Date: 10/26/2010

A per se reversal for the absence of counsel for purposes of United States v. Cronic (1984) 466 U.S. 648, 658-659 is only available for critical stages. This characterization of a critical stage depends on “(1) whether the failure to pursue strategies or remedies results in a loss of significant rights, (2) whether counsel would be useful in helping the defendant understand the legal issues, and (3) whether the proceeding tests the merits of the defendant’s case. [citations] Any one of these factors may be sufficient to make a proceeding a critical stage.” McNeal’s appointed deputy public defender did not appear at a hearing where the prosecution was seeking a discovery order which would allow the extraction of his DNA. At the subsequent continued hearing, she also failed to appear. The court granted the People’s motion and ordered the clerk to phone the deputy public defender to notify her of the order that would be carried out at a future date. Before the extraction, counsel appeared at a calendar call of the case but made no motion to recall or set aside the order. The state court decided that McNeal was not entitled to per se reversal and that was not an unreasonable application of Supreme Court precedent. It was not a Cronic critical stage, as opposed to a general Sixth Amendment right-to-counsel stage which is separately characterized as a critical stage for purposes of appointment of counsel.