PEOPLE OF MI V BERNARD CHAUNCEY MURPHY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 12, 2006
Plaintiff-Appellee,
v
No. 258397
LC No. 04-001084-01
BERNARD CHAUNCEY MURPHY,
Defendant-Appellant.
ON RECONSIDERATION
Before: Schuette, P.J. and Bandstra and Cooper, JJ.
COOPER, J. (concurring).
I concur with the majority in result, but find I must write separately to address a critical
constitutional issue: the right to counsel.
I cannot agree with the majority’s position that there can be an ordinary case where
failure to file a brief will not constitute ineffective assistance. Rather, I agree with the Seventh
Circuit’s reasoning in O’Leary, that “no brief meant no representation at all.” United States ex
rel. Thomas v. O'Leary, 856 F2d 1011, 1017 (1988). Indeed, O’Leary makes clear that where
there is “a complete denial of assistance of counsel during a critical stage,” the court need not
consider whether defendant was prejudiced by the denial of counsel, and therefore need not even
embark on the inquiry as to whether failure to file could be considered a reasonably strategic
tactical decision. Id.
I would hold that failure to afford the defendant any representation at all at a critical stage
in the proceeding, such as this interlocutory appeal of an evidentiary ruling, is not only structural
error requiring reversal, but possibly malpractice as well, and the threat of malpractice claims
should be sufficient to prevent the defense bar from adopting failure to file as a tactic, as the
prosecutor warns may happen.
/s/ Jessica R. Cooper
-1-
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