4.13Forfeiture of Right to Counsel and Presumption of Prejudice

“[In United States v Cronic, 466 US 648, 659 (1984), the United States Supreme Court] identified certain ‘rare situations in which the attorney’s performance is so deficient that prejudice is presumed.’” People v Kammeraad, 307 Mich App 98, 125 (2014), quoting People v Frazier (Corey), 478 Mich 231, 243 (2007). One such example is when “‘counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing[.]’” Kammeraad, 307 Mich App at 125, quoting Cronic, 466 US at 659.

However, even “assum[ing] that defense counsel failed entirely to subject the prosecution’s case to any meaningful adversarial testing[,]” this assumption is “irrelevant[,]” and “Cronic[, 466 US at 659], “is not implicated[,]” where the defendant has forfeited his or her right to counsel. Kammeraad, 307 Mich App at 125-127, 136 (noting that “[b]y appointed counsel’s assumed complete failure to subject the prosecution’s case to meaningful adversarial testing, [the] defendant received exactly what he desired, and . . . [the] defendant [could not be rewarded] with a new trial on the basis of an alleged constitutional deficiency that was of [his] own making[]”).