words, when counsel is absent during a critical stage, such as here, the defendant need not show prejudice. Rather, prejudice is presumed "because the adversary process itself has become presumptively unreliable." Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000) (quoting United States v. Cronic, 466 U.S. 648 (1984)) (quotation marks omitted).
We hold that the denial of counsel at a suppression hearing is a structural defect requiring absolute reversal. We are not alone in this conclusion. The Third Circuit Court of Appeals has also determined that the proper remedy for a Sixth Amendment denial-of-counsel violation during pretrial proceedings is a new trial. See Henderson v. Frank, 155 F.3d 159, 171 (3d Cir. 1998). In Henderson, the Third Circuit found that the deprivation of counsel at a suppression hearing resulted in the loss of "much more than an opportunity to have his confession suppressed." Id. at 169. Instead, Henderson suffered a “procedural, structural defect which may have had repercussions in plea bargaining, discovery and trial strategy that would not be cured by a new suppression hearing alone” for the "existence of structural defects . . . requires automatic reversal of the conviction because they infect the entire trial process." Id. at 169–70, 171 (quoting Brecht v. Abrahamson, 507 U.S. 619 (1993)). As a result, the Third Circuit concluded that "the deprivation of Henderson’s right to counsel at the suppression hearing is one of the structural defects in the constitution of the trial mechanism, which defy analysis by harmless-error standards" and thus require a new trial to correct. Id. at 170 (quoting Fulminante, 499 U.S. at 309). We acknowledge that the Henderson case is a federal habeas corpus case; however, we do not believe that fact changes the fundamental premise supporting its conclusion.
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