Statement of Interest of the United States As the Supreme Court recognized in Powell v. Alabama, the constitutional right to counsel is more than a formality: It would be "vain" to give the defendant a lawyer "without giving the latter any opportunity to acquaint himself with the facts or law of the case." 287 U.S. 45, 59 (1932) (quoting Com. v. O'Keefe, 148 A. 73, 84 (Pa. 1929)). Without taking a stance on the merits of the case, the United States files this Statement of Interest to a**ist the Court in a**essing whether the State of New York has "constructively" denied counsel to indigent defendants during criminal proceedings. Plaintiffs allege that their nominal representation amounted to no representation at all, such that the State failed to meet it's foundational obligations to provide legal representation to indigent defendants. Gideon v. Wainwright, 273 U.S. 335 (1963). It is the position of the united States that constructive denial of counsel may occur in two, often linked circumstances: When, on a systemic basis, lawyers for indigent defendants operate under substantial structural limitations, such as a severe lack of resources, unreasonably high workloads, or critical understaffing of public defender offices; and/or When the traditional markers of representation--such as timely and confidential consultation with clients, appropriate investigation, and meaningful adversarial testing of the prosecution's case--are absent or significantly compromised on a system-wide basis. Under either or both of these circumstances, a court may find that the appointment of counsel is superficial and, in effect, a form of non-representation that violates the Sixth Amendment guarantee of counsel. INTEREST OF THE UNITED STATES The United States has authority to file this Statement of Interest pursuant to 28 U.S.C. 517, which permits theAttorney General to attend to the interests of the Untied States in any case pending in a state court. The United States has an interest in ensuring that all jurisdiction--federal, state, and local-- are fulfilling their obligation under the
Constitution to provide effective a**istance of counsel to individuals facing criminal charges who cannot afford an attorney, as required by Gideon. TheUnited States can enforce the right to counsel in juvenile delinquency proceedings pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. 1414 (Section 1414). The United States is currently enforcing Section 1414's juvenile justice provision through a comprehensive settlement with Shelby County, Tennessee. [1] An essential component of the agreement, which is subject to independent monitory, is the establishment of a juvenile public defender system with "reasonable workloads" and "sufficient resources to provide independent, ethical and zealous representation to Children in delinquency matters." Id. at 15.
As the Attorney General stated, "It's time to reclaim Gideon's petition--and resolve to confront the obstacles facing indigent defense providers." [2] In March 2010, theAttorney General launched the Access to Justice Initiative to address the crisis in indigent defense services, and the Initiative provides a centralized vehicle for carrying out the Department of Justice's (Department) commitment to improving indigent defense."[3] The Department has also sought to address this crisis through a number of grant programs, as well as through support for state policy reform, and has identified indigent defense as a priority area for Bryne-JAG funds, the leading source of federal justice funding to state and local jurisdictions.[4] In 2013, the Department's Office of Justice Programs announced a collection of grants totaling $6.7 million to improve legal defense services for the poor. [5] These grants were preceded by a 2012 $1.2 million grant program, Answering Gideon's Call: Strengthening Indigent Defense through Implementing the ABA Ten Principles of a Public Defense Delivery System; Administered by the Bureau of Justice Assistance. [6]
In addition, it is always in the interest of the united States to safeguard and improve the administration of criminal justice consistent with the prosecutor's professional duty as outlined in the American Bar Association (ABA) Criminal Justice Standards: "It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should stimulate efforts for remedial action." ABA Criminal Justice Standards, Standard 3-1.2(d), Prosecution and Defense Function 1993). [7]
Thus, in light of the United States' interest in ensuring that any constitutional deficiencies the Court may find are adequately remedied, the United States files this Statement of Interest to address the factors considered in a constructive denial of counsel claim. BACKGROUND Fifty years ago, the Supreme court held that "any person hailed into court, who is too poor to hire a lawyer, cannot be a**ured a fair trial unless counsel is provided for him." Gideon, 372 U.S. at 344. Four years later, the Supreme Court held that the right to counsel extended to juveniles in delinquency proceedings. In re Gault, 387 U.S. 1, 36 (1967). And yet, as the Attorney General recently noted, "America's indigent defense systems continue to exist in a state of crisis, and the promise of Gideon is not being met." [8] Recently, the federal district court in Wilbur v. City of Mount Vernon echoed this concern, stating, "The notes of freedom and liberty that emerged from Gideon's trumpet a half a century ago cannot survive if that trumpet is muted and dented by harsh fiscal measures that reduce the promise to a hollow shell of a hallowed right." 989 F.Supp.2d 1122, 1137 (W.D. Wash. 2013.
Our national struggle to meet the obligations recognized in gideon and Gault is well documented. [9] See, e.g., Am. Bar Ass'n, Standing Comm. on Legal Aid and Indigent Defendants Report, Gideon's Broken Promise: America's Continuing Quest for Equal Justice (2004); National Juvenile Defender Center (NJDC) State Assessments [10] (outlining obstacles to provision of juvenile defense services in numerous states). Despite long recognition that "the proper performance of the defense function is...as vital to the health of the system as the performance of the prosecuting and adjudicatory functions," Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice, Final Report 11 (1963), public defense agencies nationwide are continually funded at dramatically lower levels than prosecutorial agencies. [11]
Due to this lack of resources, states and localities across the country face a crisis in indigent defense. [12] In many states, remedying the crisis in indigent defense has required court intervention. See e.g., Pub. Defender v. State, 115 So.3d 261, 278-79 (Fla. 2013) (holding that courts must intervene when public defenders' excessive caseloads and lack of funding result in "nonrepresentation and therefor a denial of the actual a**istance of counsel guaranteed by Gideon and the sixth Amendment"); Missouri PUb. Defender Com'n v. Waters,370 S.W.3d 592, 607 (Mo. 2012) (ruling that the trial court erred when it appointed counsel to indigent defendants when, due to excessive caseloads and insufficient funding,that counsel could not provide adequate a**istance, noting that "a judge may not appoint counsel when the judge is aware that, for whatever reason, counsel is unable to provide effective representation to a defendant"); Duncan v. State, 832 N.W.2d 761, 771 (Mich. Ct. App. 2012) (holding that, absent court intervention, "indigent persons who are accused of crimes in Michigan will continue to be subject to inadequate legal representation without remedy unless the representation adversely affects the outcome"); State v. Citizen, 898 So.2d 338-39 (La. 2005) (holding that courts are obliged to halt prosecutions if adequate funding is not available to lawyers representing indigent defendants).
The United States is taking an active role in providing expertise on this pressing national issue. Last year, the United States filed a Statement of Interest in Wilbur v. city of Mount Vernon, a case in which indigent defendants challenged the constitutional adequacy of the public defense systems provided by the cities of Mount Vernon and Burlington in the Western District of Washington. [13] As in this case, the United States took no position on the merits of the plaintiffs' claims in Wilbur, but instead recommended to the court that, if it found for the plaintiffs, the court should ensure that counsel for indigent defendants have realistic workloads, sufficient resources, and are carrying out the hallmarks of minimally effective representation, "such as visiting clients, conducting investigations, performing legal research, and pursuing discovery." Ex. 1 at 5-10. The court in Wilbur ultimately ruled for the plaintiffs, finding "that indigent criminal defendants in Mount Vernon and Burlington are systematically deprived of the a**istance of counsel at critical stages of the prosecution and that municipal policymakers have made deliberate choices regarding the funding, contracting, and monitoring of the public defense system that directly and predictably causes that deprivation." Wilbur, 989 F.Supp.2d at 1124. To remedy this systematic deprivation of counsel, the court ordered increased resources for indigent defense services, controls to be established for defenders' workloads, and monitoring of defenders' actual representation to ensure that they carry out the traditional markers of representation Id. at 1134-37. DISCUSSION In this matter, Plaintiffs allege that indigent defendants within five New York counties have been constructively denied counsel in their criminal proceedings. That is, a result of inadequate funding, indigent defendants face systemic risks of constructive denial of counsel including: "the system-wide failure to investigate clients' charges and defenses; the complete failure to use expert witnesses to test the prosecution's case and support possible defenses; complete breakdowns in attorney-client communication; and a lack of any meaningful advocacy on behalf of clients." Plaintiffs' Mem. of Law in Opposition to the State Defendant's Motion for Summary Judgment at 41. An an*lysis of Gideon cases informs the United States' position that constructive denial of counsel may occur when: (1) on a systemic basis, counsel for indigent defendants face severe structural limitations, such as a lack of resources high workloads, and understaffing of public defender offices, and/or (2) indigent defenders are unable or are significantly compromised in their ability to provide the traditional markers of representation for their clients, such as timely and confidential consultation, appropriate investigation, and meaningful adversarial testing of the prosecution's case. Wilbur, 989 F.Supp.2d 1122; Pub. Defender v. State, 115 So.3d 261; Missouri Pub. Defender Comm'n, 370 S.W.3d 592; Duncan, 832 N.W.2d 761; State v. Young, 172 P.3d 138 (N.M. 2007); Citizen, 898 So.2d 325; Lavallee v. Justices in Hampden Superior Court, 812 N.E.2d 895 (Ma**. 2004); New York Cnty. Lawyers' Ass'n v. State, 196 Misc. 2d 761 (N.Y.Sup.Ct. 2003); State v. Peart, 621 So.2d 780, 289 (La. 193).
Constructive denial may occur even in public defender systems that are not systematically underfunded if the attorneys providing defender services are unable to fulfill their basic obligations to their clients. The Supreme Court has recognized that, in some circumstance, "although counsel is available to a**ist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective a**istance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. United States v. Cronic, 466 U.S> 648, 659-60 (1984)j. This may occur when, for example, the defense attorney is not provided sufficient time to prepare. Powell, 287 U.S. at 53-58. Thus, whether there are severe structural limitations, the absence of traditional markers of representation, or both, the appointment of counsel is superficial and, in effect, a form of non-representation that may violate the guarantees of the Sixth Amendment. [14] I. The Court May Consider Structural Limitations and Defenders' Failure to Carry Out Traditional Markers of Representation in its Assessment of Plaintiffs' Claim of Constructive Denial of Counsel. It is a core guarantee of the Sixth Amendment that every criminal defendant, regardless of economic status, has the right to counsel when facing incarceration. Gideon, 372 U.S. at 340-44 (1963) (holding that the right to counsel is "fundamental and essential to a fair trial"). This right is so fundamental to the operation of the criminal justice system that its diminishment erodes the principles of liberty and justice that underpin all of our civil rights in criminal proceedings. Gideon, 372 U.S. at 340-341; Powell, 287 US. at 67-69 ("The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.... [A Defendant] requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know hot to establish his innocence."); see also Alabama v. Shelton, 535 U.S. at 654 (2002).
As the New York Court of Appeals held in this matter, claims of systemic constructive denial of counsel are reviewed under the principles enumerated in Gideon and the Sixth Amendment, not the Strickland [15] ineffective a**istance standard which provides only retrospective, individual relief. Hurrell-Harring v. State, 930 N.E.2d 217, 224 (N.Y. 2010) (holding that these "allegations state a claim, not for ineffective a**istance under Strickland, but for basic denial of the right to counsel in Gideon."); see also Luckey v. Harris, 860 F.2d 1012, 1017 (11th Cir. 1988) (holding that the Sixth Amendment protects rights that do not affect the outcome of a trial, and deficiencies that do not meet the "ineffectiveness" standard may still violate a defendant's rights under the Sixth Amendment); Missouri Pub. Defenders Comm'n, 370 S.W.3d at 607 (holding Sixth Amendment right to counsel requires more than just a "pro forma" appointment whereby the defendant has counsel in name only); Powell, 287 U.S. at 58-61 (holding that counsel's "appearance was rather pro forma than zealous and active [and] defendants were not accorded the right of counsel in any substantial sense"). Courts have consistently defined "constructive" denial of counsel as a situation where an individual has an attorney who is pro forma or "in name only." A. Considering the Role of Structural Limitations The provision of defense services is a multifaceted and complicated task. To guide the defense function, the BA and NJDC have promulgated national standards to ensure that defenders are able to establish meaningful attorney-client relationships and provide the constitutionally required services of counsel. See ABA, Standards for Criminal Justice, Prosecution and Defense Function; Am. Bar Ass'n Standing Comm. on Legal Aid and indigent Defendants, ABA Eight Guidelines of Public Defense Related to Excessive Workloads (200(0; Am. Bar Ass'n, Standing Comm. on Legal Aid and Indigent Defendants, ABA Ten Principles of a Public Defense Delivery System (2002); Nat'l Juvenile Defender Ctr., National Juvenile Defense Standards (2012). These standards emphasize the structural supports required to ensure that defenders can perform their duties. They include an independent defense function, early appointment, adequate staffing, funding for necessary services (e.g., investigation, retention of experts, and administrative staff), workload controls, training, legal research resources, and oversight connected to practice standards.
In a**essing Gideon claims for systemic indigent defense failures, courts have considered the absence of these structural supports as reflected in insufficient funding, agency-wide lack of training and performance standards, understaffing, excessive workloads, delayed appointments, lack of independence for the defense function from the judicial or political function, and insufficient agency-wide expert resources. [16] In Wilbur,for example, the court noted the structural limitations--insufficient staffing, excessive caseload,s and almost non-existent supervision--that resulted in a system "broken to such an extent that confidential attorney/client communications are rare, the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned." Wilbur, 989 F.Supp.2d at 1127. The court continued, The Court does not presume to establish fixed numerical standards or a checklist by which the constitutional adequacy of counsel's representation can be judged. the experts, public defenders, and prosecutors who testified at trial made clear that there are myriad factors that must be considered when determining whether a system of public defense provides indigent criminal defendants the a**istance required by the Sixth Amendment. Factors such as the mix and complexity of cases, counsel's experience, and the prosecutorial and judicial resources available were mentioned throughout trial. Wilbur 989 F.Supp.2d at 1126.
Similarly, the court in Pub. Defender v. State, 115 So. 3d at 279, held that the public defender's office could withdraw from representation of indigent defendants because of structural limitations. Insufficient funds and the resultant understaffing created a situation where indigent defendants did not receive a**istance of counsel as required by the Sixth Amendment. Courts have also held in indigent defense funding cases that budget exigencies cannot serve as an excuse for the oppressive and abusive extension of attorneys' professional responsibilities, and courts have the power to take corrective measures to ensure that indigent defendants' constitutional and statutory rights are protected. See Citizen, 898 So.2d at 336. Similarly, in Lavallee, 812 N.E.2d at 904, the court held that proactive steps maybe necessary when an indigent defense compensation scheme "raises serious concerns about whether [the defendants] will ultimately receive the effective a**istance of trial counsel." See also New York Cnty. lawyers' Ass'n, 196 Misc. 2d 761 (holding statutory rates for a**igned counsel unconstitutional as they resulted in denial of counsel and excessive caseloads, among other issues); Young, 172 P.2d 138 (holding that inadequate compensation of defense attorneys deprived capital defendants of counsel). In all of these cases, the courts granted relief based on evidence that indigent defense services were subject to such substantial structural limitations that actual representation would simply not be possible.
Substantial structural limitations force even otherwise competent and well-intentioned public defenders into a position where they are, in effect, a lawyer in name only. Such limitations essentially require counsel to represent clients without being able to fulfill their basic obligations to prepare a defense, including investigating the facts of the case, interviewing witnesses, securing discovery, engaging in motions practice, identifying experts when necessary, and subjecting the evidence to adversarial testing. Under these conditions, the issue is not effective a**istance of counsel, but, as the Court of Appeal noted, "nonrepresentation." Hurrell-Harring, 930 N.E.2d 224. Other courts have emphatically made this same point. As the Supreme Court of Louisiana Stated, "We know from experience that no attorney can prepare for one felony trial per day, especially if he has little or not investigative, paralegal, or clerical a**istance." Peart, 621 S.2d at 789. The court agreed with the trial court's characterization that "[n]ot even a lawyer with an S on his chest could effectively handle this docket." Id. The court concluded that '[m]any indigent defendants inSection E are provided with counsel who can perform only pro forma, especially at early stages of the proceedings. They are often subsequently provided with counsel who are so overburdened as to be effectively unqualified." Id. B. Considering the Traditional Markers of Representation In addition to the presence of structural limitations, courts considering systemic denial of counsel challenges have also examined the extent, or absence of, traditional markers of representation. The traditional markers of representation include meaningful attorney-client contact allowing the attorney to communicate and advice the client, the attorney's ability to investigate the allegations and the client's circumstances that may inform strategy, and the attorney's ability to advocate for the client either through plea negotiation, trial, or post-trial. These factors ensure that defense counsel provide the services that protect their client's due process rights.
The New York Court of Appeals recognized the importance of these traditional markers, stating, "Actual representation a**umes a certain basic representational relationship." Hurrell-Harring, 930 N.E.2d at 224. Other courts have adopted this reasoning. For example, in Wilbur, 989 F.Supp.2d at 1128, clients met their attorneys for the first time in court and immediately accepted a plea bargain, without discussing their cases in a confidential setting. The court found that these services "amounted to little more than a 'meet and plead' system," and that the resulting lack of representational relationship violated the Sixth Amendment. Id at 114. Similarly, in Pub. Defender v. State, 15 So. 3d at 278, the court reasoned that denial of counsel was present where attorneys engaged in routine meeting and pleading practices, did not communicate with clients, were unable to investigate the allegations, and were unprepared for trial.
The absence of these traditional markers of representation has led courts to find non-representation in violation of the Sixth Amendment. Wilbur, 989 F.Supp.2d at 1131 (noting that in such cases "the appointment of counsel may be little more than a sham and an adverse effect on the reliability of the trial process will be presumed") (citing Cronic, 466 U.S. at 658-60, and Avery v. Alabama, 308 U.S. 444, 446 (1940)); see also Pub. Defender, 115 So. 3d at 278; Citizen, 898 So.2d 325, Peart, 621 So.2d at 789. The traditional markers require the "opportunity for appointed counsel to confer with the accused to prepare a defense," engage in investigation, and advocate for the client. Wilbur 989 F.Supp.2d at 1131; Public Defender v. State, 115 So.3d at 278; Peart, 621 So.2d at 789; see also Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012) ("[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused."); Powell, 287 U.S. at 59-60 (finding that when "no attempt was made to investigate" the defendants lacked "the aid of counsel in any real sense") (emphasis added).
The New York Court of Appeals, along with many other courts, has taken note of the vital importance of these traditional markers of representation. These markers may be considered in conjunction with the structural limitations placed on counsel to determine whether the counties "constructively" denied counsel to indigent defendants during criminal proceedings. When a**essing the merits of the case, this Court may use this framework to a**ess whether a systemic "constructive" denial of counsel in violation of Gideon and the Sixth Amendment occurred from either factor, standing alone or in conjunction. CONCLUSION The Court can consider structural limitations and defenders' failure to carry out traditional markers of representation in its a**essment ofPlaintiffs' claim of constructive denial of counsel.
Respectfully submitted,
MOLLY J. MORAN
Acting Assistant Attorney general
Civil Rights Division
United States Department of Justice
MARK KAPPELHOFF
Deputy Assis;tant Attorney General
Civil Rights Division
JONATHAN M. SMITH
Chief
Civil Rights Division
Special Litigation Section
JUDY C. PRESTON
Principal Deputy Chief
Civil Rights Division
Special Litigation Section
PAUL KILLEBREW
Paul.k**ebrew@usdoj.gov
JEFFREY S. BLUMBERG
Jeff.Blumberg@usdoj.gov
Trial Attorneys
Civil Rights Division
Special Litigation Section
950 Pennsylvania Avenue, NW
Washington , DC 20530
Telephone: (202) 514-2000
Facsimile: (202) 514-6273
____________
WINSOME G. GAYLE
Special Litigation Counsel
Civil Rights Division
Special Litigation Section
Winsome.Gayle@usdoj.gov
Attorneys for the United States of America FOOTNOTES [1] Mem. of Agreement Regarding the Juvenile Court of Memphis and HSelby Counties, Tennessee (2012).
[2] Attorney General Eric Holder Speaks at the Justice Department's 50th Anniversary Celebration of the U.S. Supreme Court Decision in Gideon v. Wainwright (March 15, 2013)
[3] The Initiative works ith federal agencies and state, local, and tribal justice system stakeholders to increase access to counsel, highlight best practices, and improve the justice delivery systems that serve people who are unable to afford lawyers. More information is available at http://www.justice.gov/atj/
[4] See U. S. Gov't Accountability Office, Indigent Defnese: DOJ Could INcrease Awareness of Eligible Funding and Better Determine the Extent to Which Funds Help Support this Purpose 11-14 (May 2012).
[5] As noted by Associate Attorney General Tony West in the announcement, "These awards, in conjunction with other efforts we're making to strengthen indigent defense, will fortify our public defender system and help us to meet our constitutional and moral obligation to administer a justice system that matches its demands for accountability with a commitment to fair, due process for poor defendants." Attorney General Holder Announces $6.7 Million to Improve Legal Defense Services for the Poor (Oct. 30, 2013)
[6] Grants have been awarded to agencies in Texas, Delaware, Ma**achusetts, Mississippi, Tennessee Utah and Michigan.
[7] Available at http://www.americanbar.org/groups/criminal_justice/standards.html
[8] Attorney General Eric Holder Deliers Remarks at the Annual Meeting of the American Bar Association's House of Delegates (Aug. 12, 2013)
[9] In March 2013, the Yale Law Journal held a symposium on the challenges of meeting Gideon's promise and published the dicusssions. See 122 Yale L.J. 8 (June 2013).
[10] Assessments available at http://www.njdc.info/a**essments.php
[11] Compare Steven W. Perry & Duren Banks, U.S> Bureau of Justice Statistics, Prosecutors in State Courts, 2007 Statistical Tables 1 (2012) (nothing that prosecution offices nationwide receive a budget of approximately $5.8 billion), with Lynn Langton & Donald J. Farole, Jr. U.S. Bureau of Justice Statistics, Public Defender Offices, 2007 Statistical Tables 1 (2010) (nothing that public defender offices nationwide had a budget of approximately $2.3 billion). See also Nat'l Right to Counsel Comm., Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel 61-64 (2009) (collecting examples of funding disparities).
[12] Joh P. Gross, Gideon at 50: A Three-Part Examination of Indigent Defense in America, Nat'l Ass'n of Criminal Def. Lawyers (2013) (Describing astonishingly low rates of compensation for a**igned counsel across the nation); Cara H. Drinan, The Third Generation of Indigent Defense Litigation, 33 N.Y.U. Rev. L. & Soc. Change 427 (2009) (describing crisis nationwide).
[13] Attached as Exhibit 1.
[14] If the Plaintiffs prevail, the court may appoint a monitor as part of its authority to grant injunctive relief. Monitors, or their equivalent, have been utilized in similar cases. In Wilbur, pursuant to an order for injunctive relief, the court required the hiring of a "Public Defense Supervisor" to supervise the work of the public defenders. The supervision and monitoring includes extensive file review, caseload a**essments, data collection, and reports to the court to ensure that there is "actual" and appropriate representation for indigent criminal defendants in teh cities of Mount Vernon and Burlington. See Wilbur, No. C11-1100RSL at 19. Similarly, in Grant County, Washington, an independent monitor was essential to implementing the court's injunction in a right-to-counsel case. Best v. Grant Cnty., No. 04-2-00189-0 (Kittitas Cty. Sup. Ct. Dec. 21, 2004).
[15] Strickland v. Washington, 466 U.S. 668 (1984).
[16] We note that, in alleging that there has been a constructive denial of counsel based on systemic indigent defense failures, plaintiffs are not seeking to reverse criminal convictions but are seeking only prospective injunctive relief. The Court may enter prospective relief upon a finding of a substantial risk of a constitutional violation. See Brown v. Plata, 131 S. Ct. 1910, 1941 (2011). In the context of a challenge to a criminal conviction, the defnedant must also show that the denial of counsel caused actual prejudice to secure a reversal. Strickland, 466 U.S. 668. Cronic, 466 U.S. 648, creates a narrow exception to the ned to show prejudice where the denial of counsel contaminates the entire criminal proceeding.