At least not today, according to  two summary decisions coming out of Washington.  First, the Court held in Wright v. Von Patten that

it has never required defense lawyers to be physically on hand during every stage of a criminal court proceedings, and thus has never found it unconstitutional for a lawyer to take part in a plea hearing by speaker phone.

They don’t need no stinkin’ appearances.  Well, that’s not quite where they were heading, as “[t]he Court said it was leaving ‘for another day’ the issue of whether ‘telephone practice’ was legally problematic, finding that all that was necessary to decide this case was that there was no ban on a speaker phone appearance that could be found in prior Court precedents.”

The Court’s decision rejected a per se approach to a lawyer appearing by telephone in a criminal matter, something that is uncommon but not unheard of.  Because of the demands on a lawyer’s presence at a given time and on a given day, when different clients are on different judges calenders in different courthouses, or when a judge calls and wants you before her in an hour, and you’re three states away, the telephone may present the only way.  There are also times when the only thing that’s going to happen is to adjourn a case to another day, and there’s nothing of substance required.

But there are also instances where a conference on a real subject will take place by telephone conference, and these raise different issues.  On the surface there’s no reason why a telephone conference in the law is any different than a telephone conference in any other field of endeavor.  Business does it constantly, and it seems to work just fine for them.

Having done my share of conferences, primarily in federal cases where telephone conferences tend to make expeditious and effective use of judges’ and magistrates’ time, I see the problem.  While telephone practice is incredibly efficient, it never has the same feel as being in the same room with your adversary and the judge.  Speakerphones are monumentally bad at allowing cross-talk, or being certain who is saying what or when the opportunity to interject is available.

The only question is why the Supreme Court decided it was worth their while to decide this small piece of the puzzle, that telephone practice does not, alone, violate the Constitution, without addressing the bigger issues.

On a different note, the highly controversial and fascinating issue in Arave v. Hoffman,  discussed here because of the interesting issue of how to remedy ineffective issue during plea negotiations, has folded like a cheap suit.  This wasn’t unexpected, as both parties alerted the court that the question of counsel’s ineffective assistance was off the table, but it leaves us with the same open question of whether a lawyer’s erroneous advice, that forms the basis for acceptance of a plea, is subject to review and remedy.  

On the other hand, if anyone has a case that presents this issue, now would be a good time to seek cert.  I hear there’s an opening in the Supreme Court docket.