PEOPLE v LEWIS
Docket No . 154396. Argued on a pplication for leave to appeal April 13, 2017 . Decided July 31 , 2017

. Gary P. Lewis was convicted after a jury trial in the Wayne Circuit Court of four counts of third

- degree arson, MCL 750.74, and one count of second

- degree arson, MCL 750.73 (1). The court, Lawrence S. Talon, J., sentenced defendant as a fourth

- offense habitual offender, MCL 769.12, to 17 to 30 years of imprisonment for each of his convictions. Lewis appealed his convictions as of right in the Court of Appeals, claiming that he was deprived of counsel at his preliminary examination and that this deprivation of counsel at a critical stage of the criminal proceedings against him amounted to a structural error requiring automatic reversal. In an unpublished per curiam opinion i ssued July 21, 2016, the Court of Appeals, T ALBOT , C.J., and M URRAY and S ERVITTO , JJ., concluding that automatic reversal was required under binding Michigan cases interpreting United States v Cronic , 466 US 648 (1984), vacated Lewis’s convictions and remanded the case for a new trial . The Court of Appeals noted , however, that it did not believe reversal was required under a correct interpretation of federal law including Coleman v Alabama , 399 US 1 (1970), and that it would have applied a harmless

- err or test to determine whether reversal was required

. The Supreme Court ordered and heard oral argument on whether to grant Lewis’s application for leave to appeal or take other action

. 500 Mich 918 (2016).
In a unanimous opinion by Justice L ARSEN , in li eu of granting leave to appeal, the Supreme Court held : The deprivation of defense counsel at a preliminary examination is subject to harmless

error review.
1. Under the Sixth Amendment of the United States Constitution, a defendant has a right to counsel during critical stages of a criminal prosecution. In this case, the prosecutor conceded that the preliminary examination is a critical stage. With regard to t he proper remedy when the right to counsel at a preliminary examination is denied, Coleman held that a remand was necessary to determine whether that denial was harmless error, while Cronic stated that a trial is unfair if the accused is denied counsel at a critical stage of the trial, requiring automatic reversal. However, that statement in Cronic , a case involving an allegation of ineffective assistance of counsel, was dictum, whereas the holding in Coleman that the deprivation of counsel at a Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader
. Reporter of Decisions: Kathryn L. Loomispreliminary exa mination is subject to harmless

- error review was not. Accordingly, the holding in Coleman was binding.
2. In evaluating whether the deprivation of counsel at a preliminary exa minat ion was harmless, a court may not simply presume, without more, that the deprivation must h ave caused the defendant harm, nor may it presume that the error was harmless because of the subsequent conviction, even if no evidence from the preliminary examinat ion was used at trial and the defendant waived no rights or defenses because of the absence of counsel . Given that t he parties did not address either the substantive criteria or the procedural framework t hat should attend this review, the case was remand e d to the Court of Appeals to consider those questions in the first instance. Court of Appeals judgment reversed; Part II of the Court of Appeals opinion vacated; case remanded to the Court of Appeals for further proceedings.
Justice M C C ORMACK , joined by Justice B ERNSTEIN , concurring, signed the majority opinion in full and agreed that Coleman was controlling and binding in this case, but wrote separately to question whether harmless

- error review under Coleman for cases in which counsel was denie d at a preliminary examination was sustainable given the speculative nature of the inquiry, the evolution of and reasoning behind the United States Supreme Court’s structural

- error doctrine, and the unresolved tension between Coleman and Cronic

.

© 201 7 State of MichiganFILED July 31, 2017

S T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN , Plaintiff

- Appell ant ,

v No. 154396
GARY PATRICK LEWIS , Defendant

- Appell ee
.

BEFORE THE ENTIRE BENCH
L ARSEN , J

. Th is case confronts us with two precedents of the Supreme Court of the United
States that init i ally seem to conflict

. In one, the Supreme Court remarked that denial of
counsel at a critical stage of a criminal proceeding is a structural error requiring
automatic reversal . S ee United States v Cronic , 466 US 648 , 659 ; 104 S Ct 2039; 80 L Ed 2d 657 (1984)

. I n the other, the Court remanded for harmless

- error analysis in a case in which it held that a defendant was denied counsel at a critical stage

— his preliminary Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Stephen J. M arkman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder2 examination

. See Coleman v Alabama , 399 US 1 , 11 ; 90 S Ct 1999; 26 L Ed 2d 387 (1970). 1 A n error cannot be both str uctural and subject to harmless

- err or review. See
Neder v United States , 527 US 1 , 8 ; 119 S Ct 1827; 144 L Ed 2d 35 (1999)

. The defendant i n this case was deprived of the right to counsel at his preliminary
examination. Believing itself bound by precedent, t he Court of Appeals resolved th e conflict by holding , in effect, that Cronic controlled and grantin g defendant an automatic
new trial . But Cronic ’s discussion of the general remedy for complete denial s of counsel
was dictum ; while Coleman held that the denial of counsel at a preliminary hearing

— the
very error at issue here

— is subject to harmless

- error review. When the Supreme Court ’s holdings and its dicta conflict, we are bound to follow its holdings

. Accordingly, w e reverse the judgment of the Cou rt of Appeals , vacate Part II of its opinion, and remand
the case to the Court of Appeals for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY Before his preliminary examination, defendant , Gary Lewis, had been appointed

two lawyers . He was not pleased with either ; indeed, the examining court noted that he had filed grievances against each of his previous attorneys

. Defendant’s most recently appointed attorney was present in the courtroom w hen defendant appeared for his preliminary examination

. At the start of the hearing, the judge asked defendant to state

1 Justice Brennan authored the plurality opinion in Coleman . Three other justices joined Justice Brennan’s opinion in full, and one additional justice joined Part III of the opinion , which held that harmless error was the appropriate standard of review for a denial of counsel at a preliminary hearing. Coleman , 399 US at 10 n 4

. Accordingly, Part III of Justice Bren n an’s opinion will be cited as the opinion of the Court throughout this opinion.3 his name for the record . Defendant replied that he was “ not talking ” ; that he didn ’ t have an attorney; that he was being disrespected; that his rights were being violated; and that
he was “ through with it. ” T he trial judge stated that he understood defendant to have “elected that he would prefer not to have a lawyer represent him” at the preliminary
examination

. D efendant explicitly disagreed : “I never said that

. ” T he court proceeded
anyway , with defendant acting pro se, and appointed defendant’s former attorney a s standby counsel. Despite many warnings, d efendant repeatedly disrupt ed the preliminary examination and was ultimately removed from the courtroom

. At th at point , the judge
relieved standby counsel of his duties, and t he prosecution continued with the preliminary
examination unopposed. D efendant was bound over for trial

. Defendant was represented by counsel at trial and was convicted by jury of one
count of second

- degree arson and four counts of third

- degree arson. He challenged his
conviction s in the Court of Appeals, arguing that the deprivation of counsel at his preliminary examination was a structural error requiring automatic reversal. Believing itself bound by precedent, t h e Court of Appeals agreed, overturn ed the convictions , and
remand ed for a new trial. People v Lewis , unpublished per curiam opinion of the Court of Appeals, issued July 21, 2016 (Docket No. 325782). The prosecution filed an application for leave to appeal in this Court, and we ordered oral argument on the application. People v Lewis , 500 Mich 897 (2016).4 II. ANALYSIS The prosecution concedes that defendant lacked counsel at his preliminary
examination 2 and that the preliminary examination is a crit ical stage for the purposes of the Sixth Amendment right to counsel. US Const, A m VI. The prosecution’s concession
is un remarkable

. In Coleman v Alabama , the Supreme Court of the United States held
that Alabama’s preliminary

- hearing pro c edure was a critical stage. Coleman , 399 US 9

- 10 (opinion by Brennan, J.) ; id . at 12 (Black, J., concurring). Although there are
variations in each state’s preliminary

- examination procedures, this Court has repeatedly
commented that defendants have a constitutional right to counsel at preliminary
examinations in Michigan

. See, e.g., People v Carter , 412 Mich 214, 217; 313 NW2d
896 (1981); People v Mitchell , 454 Mich 145, 161 n 15 ; 560 NW2d 600 (1997). This
case asks us to consider the remedy when th at right to coun sel is denied

. Two cas es compete for our attention. The prosecution directs us to Coleman

. In that case, the defendant was denied counsel at his pr eliminary hearing . The Supreme Court held that the hearing was a critical stage because of the “inability of the indigent accused on his own to realize the[] advantages of a lawyer’s assistance” at such a

2 The prosecution also concedes that the examining court did not comply with the procedures set forth in MCR 6.005 or People v Anderson , 398 Mich 361, 367

- 368; 247 NW2d 857 (1976) , citing Faretta v California , 422 US 806; 95 S Ct 2525; 45 L Ed 2d 562 (1975) , for establish ing an unequivocal waiver of the right to counsel. The prosecution does, however, raise two preliminary arguments related to defendant’s ability to bring his denial

- of

- counsel claim. First, the prosecution argues that defendant did not pres erve his claim because he did not raise in the circuit court his lack of counsel at the preliminary examination. The prosecution also argues that defendant’s behavior in refusing to cooperate with his attorneys could be construed as a waiver of his right to counsel. We do not entertain these arguments , however, because they were not presented to the Court of Appeals.5 proceeding

. 3 Coleman , 399 US at 9

- 10 (opinion by Brennan, J. ); id . at 12 ( Black , J., concurring) ( agreeing that “the preliminary hearing is a ‘critical stage’ ”)

. A majority of
the Court determined that the proper remedy was to remand the case to the Alabama courts to consider “whether the denial of counsel at the preliminary hearing was harmless

error
. ” Id

. at 11 , citing Chapman v California , 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967)

. Defendant points to United States v Cronic

. There, the Court remarked that some
“circumstances

. . . are so likely to prejudice the accused that the cost of litigating their effect in a particu lar case is unjustified.” Cronic , 466 US at 658. The Court began with
the “most obvious” of these circumstances

— “complete denial of counsel”

— and
commented that “a trial is unfair if the accused is denied counsel at a critical stage of his
trial.” Id

. at 659. Coleman ’s review for harmless error is obviously incompatible with the automatic reversal suggested by Cronic

. Defendant asks us to hold, therefore, that Cronic silently abrogated Coleman and to automatically reverse his conviction. We decline t o do so.
It is an elementary proposition that “state courts are bound by United States Supreme Court decisions construing federal law ,” including the Constitution. People v
Gillam , 479 Mich 253, 261; 734 NW2d 585 (2007)

. But whe n two statements conflict,

3 These advantages , as articulated by the plurality in Coleman , include “expos[ing] fatal weaknesses in the State’s case,” cross

- examining witnesses to generate potential impeachment evidence for use at trial, gaining discovery of the prosecution’s case , and making arguments related to bail and psychiatric examinations. Coleman , 399 US at 9 (opinion by Brennan, J.)

.6 we must prefer a holding of the Supreme Court to its dict um . See Agostini v Felton , 521 US 203, 237; 117 S Ct 1997; 138 L Ed 2d 391 (1997)

. Cronic was a case about the effective assistance of counsel guaranteed by the
Sixth and F ourteenth Amendments of the United States Constitution

. T he defendant was on trial in a mail

- fraud case involving $9.4 million in transferred checks. Cronic , 466 US
at 649. His retained counsel had withdr awn shortly before the scheduled trial and a young lawyer with a real

- estate practice , and no criminal

- trial experience, had been appointed to represent the defendant

. Id

. The Government’s investigation had taken
more than four years, but defense counsel was given only 25 days to prepare for tri al

. Id

. The defendant challenged his conviction on the ground that , under the circumstances, h e had been deprived of the effective assistance of counsel. The United States Court of Appeals for the Tenth Circuit agreed. United States v Cronic , 675 F2d 1 126 (CA 10, 1982). Even though the defendant could not point to any specific errors in his counsel’s performance, or prejudice flowing therefrom, the federal appellate court held that “no such showing is necessary ‘when circumstances hamper a given lawyer ’s preparation of a
defendant’s case. ’ ” Cronic , 466 US at 651. The Supreme Court reversed, holding that
the defendant could “make out a claim of ineffective assistance only by pointing to specific errors made by trial counsel.” Id

. at 666. Along the way, the Court’s opinion in Cronic contrasted claims of ineffective assistance with other errors “so likely to prejudice the accused that the cost of litigating
their effe c t in a particular case is unjustified.” Id . at 658. It deemed “ [ m ] ost ob vious” among them “the complete denial of counsel

. . . at a critical stage of his trial.” Id

. at 659.
But the question in Cronic was not whether the defendant had been denied counsel7 completely , much less whether he had been completely denied counsel at a preliminary hearing. It was, instead, whether his counsel had provided effective assistance at trial.
And so the Court’s statements about the complete denial of counsel were dicta

. 4
T he Coleman decision , by contrast, is directly on point . Although it is short on explanation for its remedy, the Court plainly held that the deprivation of counsel at a preliminary examination is subject to harmless

- error review under the federal
Constitution

. See Coleman , 399 US at 11. Accordingly, we appl y that decision, rather
than the dictum in Cronic

. 5
We note that our resolution is consistent with that of other courts which have
examined the tension between Coleman and Cronic

. See , e.g., Takacs v Engle , 768 F2d 122, 124 (CA 6, 1985) (holding that “ Coleman ’ s harmless error analysis remains good law” despite the defendant’s argument that it had been overruled by Cronic and Strickland v Washington , 46 6 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984)); State v

4 The same rationale appl ies to the Court of Appeals’ reliance on People v Arnold , 477 Mich 852; 720 NW2d 740 (2006) , and to our statement in People v Russell , 471 Mich 182, 194 n 29; 684 NW2d 745 (2004), that “[t]he complete denial of counsel at a critical stage of a criminal proceeding is a structural error that renders the result unreliable, thus requiring automatic reversal.” Arnold was a sentencing case , and Russell addressed the denial of co unsel at trial. As such, they are not binding in this case, which involves a preliminary examination. Nothing in those case s purported to rest on unique aspects of the Michigan, as opposed to the federal, Constitution. Accordingly, neither Arnold nor Ru ssell could have held that the complete denial of counsel at any critical stage of a criminal proceeding is structural error requiring automatic reversal, when the Supreme Court of the United States has held otherwise.

5 Because Cronic ’s dictum could not have overruled Coleman ’s holding, we need not address the prosecution’s argument that Satterwhite v Texas , 486 US 249; 108 S Ct 1792; 100 L Ed 2d 284 (1988), implicitly overruled Cronic

.8 Brown , 279 Conn 493, 507 n 5; 903 A2d 169 (200 6) (“We note that, since Coleman , the United States Supreme Court has indicated in dicta that denial of counsel at a critical stage renders a trial unfair, without regard to actual prejudice.

. . . At no point, however, has the [C]ourt overruled explicitl y Coleman or repudiated its conclusion that the case should be remanded for harmless error analysis, despite the denial of counsel at the preliminary hearing.”). And our resolution is also consistent with the Supreme Court’s
admonition that other courts s hould not conclude that the Court’s “more recent cases have, by implication, overruled an earlier precedent” but should instead leave to the Supreme Court “ the prerogative of overruling its own decisions.” 6 Agostini , 521 US at 237

. D efendant has not argued that the state Constitution, Const 1963, art 1, § 20, provides him with any greater protection than the federal Constitution , US Const, Am
VI

. 7 D efendant ’s claim of error is , therefore, subject to harmless

- error review.
While we ha ve easily concluded that harmless

- error review applies, we admit to being uncertain about just how a court is to evaluate the effect of this error on a verdict.
Coleman does not tell us; there, the Supreme Court simply remanded to the Supreme
Court of Ala bama to review the effect of the error under Chapman without further

6 We have recently emphasized that a similar rule governs our own l ower courts. See Associated Builders & Contractors v Lansing , 499 Mich 177 , 191

- 192 ; 880 NW 2d 765 (2016)

. 7 Defendant has argued that a ruling that this error is subject to harmless

- error review would set a “dangerous precedent” encouraging trial courts to subject defendants to preliminary examinations without counsel. We emphasize that the courts of our S tate remain under an obligation to protect a defendant’s right to counsel at the preliminary

hearing stage

. S hould they fail, trial counsel should bring the error to the circuit court’s attention before trial so that it may be promptly remedied.9 discussion. We do, however, have some guideposts. At each extreme, we know what is not permitted. At one end, a court may not simply presume, without more, that the deprivation of coun sel at a preliminary examination must have caused the defendant harm. Although consistent with the presumption accorded to the complete denial of counsel at some other stages of a criminal proceeding, see, e.g, Gideon v Wainwright , 372 US 335; 83 S Ct 792 ; 9 L Ed 2d 799 (1963) (at trial); Penson v Ohio , 488 US 75; 109 S Ct 346; 102 L Ed 2d 300 (1988) (on first appeal as of right) , such an approach would be

t reating the error as structural

— a result foreclosed by Coleman . Neither, however, may
we presume the opposite. Although it finds support by analogy in the Supreme Court’s post

- verdict evaluation of most grand

- jury errors, see United States v Mechanik , 475 US 66, 73; 1 0 6 S Ct 938; 89 L Ed 2d 50 (1986), Coleman does not permit us to presume that
a defe ndant, who was ultim ately convicted at an otherwise fair trial, suffered no harm from the absence of counsel at his preliminary examination. And that is true even if no evidence from the preliminary examination was used at trial, and even if defendant
wai ved no rights or defenses because of the absence of counsel at the preliminary examination. All of these things were true, and brought to the Court’s attention, 8 in Mr.

8 The l ead opinion itself acknowledged the first two points

. See Coleman , 399 US at 10 (“The trial transcript indicates that the prohibition against use by the State at trial of anything that occurred at the preliminary hearing was scrupulously observed.”); id

. at 8 (opin ion by Brennan, J.) (“ ‘At the preliminary hearing

. . . the accused is not required to advance any defenses, and failure to do so does not preclude him from availing himself of every defense he may have upon the trial of the case.’ ”) ( citation omitted; e llipsis in original). And the Court was obviously aware that defendant had been convicted at trial. See id . at 18 (White , J., concurring) (“The possibility that counsel would have detected preclusive flaws in the State ’ s probable

- cause showing is for all practical purposes mooted by the trial where the State produced evidence satisfying the jury of the petitioners ’ guilt beyond a reasonable doubt.”); id

. at 28 (Stewart , J., dissenting) (“Since10 Coleman’s case, and yet the Supreme Court remanded his case for a determination , under Chapman , whether the deprivation of counsel at his preliminary examination was
harmless . See Coleman , 399 US at 10 (remanding for harmless

- error determination even though the “prohibition against use by the State at trial of anything that occurred at the preliminary hearing was scrupulously observed” and no rights or defenses were lost). 9 And so, with the two perhaps most intuitive options for assessing harm off the table, courts are left to give meaning to the Supreme Court’s command to determine
whether defendant was “otherwise prejudiced by the absence of counsel at the preliminary hearing.” Coleman , 399 US at 11. The parties have not addressed in this litigation either the substantive criteria or the procedural framework that should attend
such revie w. Accordingly, we remand to the Court of Appeals to consider those questions in the first instance.

the petitioners have now been found by a jury in a constitutio nal trial to be guilty beyond a reasonable doubt, the prevailing opinion understandably boggles at these logical consequences of the reasoning therein.”).

9 The Court of Appeals, believing itself bound by precedent, held that defendant was automatically entitled to a new trial because he was denied counsel at a critical stage of the proceeding. Lewis , unpub op at 3. The opinion proceeded, however, to set forth the panel’s view that, under a proper interpretation of the law, the denial of counsel in this case should be evaluated for harmlessness. Id . at 3

- 5. It then conducted that evaluation and concluded, in dictum, that the error was harmless because “defense counsel conceded that no evidence from the preliminary exam was used at trial,” defendant “di d not waive any rights or defenses by not participating in the preliminary exam,” and defendant was tried and convicted, with counsel, at trial. Id

. at 5. For the reasons stated above, these findings, by themselves, were insufficient to compel the conclu sion that the denial of counsel was harmless.11 III. CONCLUSION
In accordance with Coleman , we hold that the deprivation of counsel at a preliminary examination is subject to harmless

- error review. W e , therefore, reverse the judgment of the Court of Appeals, vacate Part II of its opinion, and remand to that Court for further proceedings consistent with this opinion

. If the Court of Appeals concludes that the error was harmless, it must also address th e sentencing issue raised in defendant’s
brief in that Court

. 10

Joan L. Larsen Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder

10 Defendant has filed an application for leave to appeal as cross

- appellant. That application is denied, because we are not persuaded that the questions presented should be reviewed by this Court.S T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN , Plaintiff

- Appell ant ,

v No. 154396
GARY PARTICK LEWIS , Defendant

- Appell ee
.

M C C ORMACK , J

. ( concurring )

. I agree with the majority that we are bound to follow Coleman v Alabama , 399 US 1; 90 S Ct 1999; 26 L Ed 2d 387 (1970) , because it is directly on point and has never
been overruled

. I write separately to call attention to the difficulties inherent in performing a harmless

- error review in cases such as this and , relatedly, to the possibility
that the United States Supreme Court should reexamine Coleman in light of United States
v Cronic , 466 US 648; 104 S C t 2039; 80 L Ed 2d 657 (1984)

. It is difficult for me to imagine what a harmless

- error review will look like when ,

as in this case , a defendant was denied counsel at the preliminary examination. As the majority recognize s , Coleman excluded the most intuit ive bases for finding prejudicial harm because it made plain that the question of harmless error does not depend on whether evidence from the preliminary hearing was presented at trial, and Coleman
remanded for a harmless

- error determination even though th e defendants waived no rights or defenses because of the absence of counsel. Coleman , 399 US at 8, 10

- 11. Further, Coleman remanded for harmless

- error review with little guidance; the court was2 to determine whether the defendants were “otherwise prejudiced” by the deprivation of counsel at the preliminary hearing. Id . at 11. There are, of course, many ways that the absence of counsel at a preliminary hearing might be harmful to a defendant apart from counsel’s role in negating a showing
of probable cause. Indeed, t he Coleman Court identified many of these: counsel use s a preliminary hearing to expose weaknesses in the prosecution’s case through cross

examination, lay s the grounds for later impeachment at trial, effect ively discover s the prosecution’s case, and make s arguments related to bail or psychiatric examinations. 1 Id

. at 9. I can think of others , too: the preliminary examination is often a critical client

counseling moment when plea deals can be negotiated, an d additional formal and informal communications between defense counsel, the prosecutor , and the court give the defendant important information about the evidence against him or her

. But I find it extremely problematic for a court to conduct a harmless

- er ror review with reference to
these factors. It will require courts to speculate whether counsel would have discovered a significant weakness in the prosecution’s case through cross

- examination, or how effectively counsel might have been able to lay the gr ounds for later impeachment of a
witness at trial , and what other information might have been revealed in the examination of witnesses or discussions among counsel

. It will require courts to speculate about the

1 Other jurisdictions have referred to these four factors in their determination of harmless error. See , e.g. , State v Canaday , 117 Ariz 572, 575

- 576; 574 P2d 60 (1977) (examining harmless error based on the purposes of a preliminary hearing delineated in Coleman ); State v Brown , 279 Conn 493, 510; 903 A2d 169 (2006) (stating that deprivation of counsel at a probable

- cause hearing is susce ptible to harmless

- error analysis through examination of the functions of a preliminary hearing listed in Coleman ).3 opportunities for negotiating a plea deal and counsel’s advice about whether to accept a particular offer. And the speculation won’t end there : next , courts will have to speculate
about what result th i s hypothetical representation at the preliminary exami nation might
have had at a subsequent trial. 2 In short, I am concerned that harmless

- error review in cases such as this invites a potentially problematic level of speculation into judicial
review. All of this gives me reason to question whether Coleman ’s holding remains viable in light of the evolution of the Supreme Court’s structural

- error doctrine

. I agree with the majority that Cronic ’s comment suggesting that courts should presume prejudice and automatically reverse upon complete denial of counsel at a critical stage was dictum

. T he
issue addressed in Cronic was whether the defendant received effective assistance of counsel, not whether the defendant was denied counsel at a critical stage. But several subsequent cases have cited Cronic for the proposition that courts should presume prejudice if a defendant suffers complete denial of counsel at a critical stage. See , e.g. , Roe v Flores

- Ortega , 528 US 470, 483; 120 S Ct 1029 ; 145 L Ed 2d 985 (2000) ; Mickens v Taylor , 535 US 162, 166; 122 S Ct 123 7; 152 L Ed 2d 291 (2002); Woods v Donald , 575 US ___, ___; 135 S Ct 1372, 1375

- 1376; 191 L Ed 2d 464 (2015). Indeed, in
Woods , 575 US at ___; 135 S Ct 1375

- 1376 , the Supreme Court reiterated th e Cronic

2 In determining what counsel might have accomplished had he or she been present at this hearing, is the reviewing court to assume that the preliminary

- examination counsel would have been about as effective as trial counsel? Or more effective because counsel might have an incentive to work especially diligently at a preliminary exam because that work could pay off with a better and earlier re solution of the case? Or perhaps the reviewing court should assume counsel was simply minimally constitutionally competent?4 dictum as a holding that the complete denial of coun sel at a critical stage allows a presumption of unconstitutional prejudice

. And the preliminary examination is a critical stage in criminal proceedings. Coleman , 399 US at 9. Thus, it seems Cronic ’s reasoning would apply with equal force to a preliminary examination , but for Coleman ’s holding to the contrary. Further, the reasoning that animates the Court’s structural

- error jurisprudence seems to apply with full force in the context of a preliminar y exam ination

. The common
strand I see in the Court’s rationale for declaring an error structural and presuming prejudice requiring reversal is that the particular error makes assessing its effect exceptionally difficult

. U nited S tates v Marcus , 560 US 258, 263; 130 S Ct 2159; 176 L Ed 2d 1012 (2010). Structural errors are characterized by “ consequences that are necessarily unquantifiable and indeterminate

. . . . ” Sullivan v Louisiana , 508 US 275, 282; 113 S Ct 2078, 124 L Ed 2d 182 (1993). As explai ned above, that rationale seems on the nose here. Harmless

- error review is impractical because of the difficulty in determining what might have gone differently if the defendant had the benefit of counsel at the preliminary examination. It is impossible to know with certainty what questions counsel might have posed and what answers witnesses might have provided , what other benefits the defendant might have derived from having counsel available , and h ow all of
those considerations would have affected the s ubsequent trial

. In my view , harmless

error analysis in cases in which counsel was denied at the preliminary examination risks becoming a “speculative inquiry into what might have occurred in an alternate universe.”
U

nited S tates v Gonzalez

- Lopez , 548 US 140, 150; 126 S Ct 2557; 165 L Ed 2d 409 (2006).5 The development of the Supreme Court’s structural

- error doctrine, the reasoning that explains it , and the unresolved tension between Cronic and Coleman 3 make me question whether the Coleman harmless

- error review remains a sustainable rule when a defendant is denied counsel at a preliminary examination

. Nevertheless, Coleman is directly on point and has never been overruled , while the rule of Cronic has never been applied to denial of counsel at a preliminary examination

. Therefore, I agree with the majority that Coleman is controlling, and we are bound to follow its holding.

Bridget M. McCormack Richard H. Bernstein

3 Compare Ditch v Grace , 479 F3d 249, 255

- 256 (CA 3, 2001) (reconciling Coleman and Cronic by reading Cronic in a limited fashion) , with French v Jones , 332 F3d 430, 438 (CA 6, 2003) (stating that caselaw after Cronic has reiterated that harmless

- error analysis does not apply to the absence of counsel at a critical stage, which requires automatic reversal).