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Barrett dissented in the case of a Wisconsin man who admitted that he fatally shot his wife seven times but argued that he had been provoked, making his crime second-degree homicide instead of first-degree homicide, which carries a higher penalty.

A federal judge reviewed the provoking claim in a pretrial hearing without prosecutors present and without allowing the lawyer of defendant Scott Schmidt to speak. The judge rejected Schmidt’s claim of provocation, and he was convicted of first-degree homicide and sentenced to life in prison. However, a 7th Circuit panel overturned that decision, saying that Schmidt had been denied his Sixth Amendment right to counsel.

Barrett, in her dissent, disagreed that the pretrial hearing where the judge questioned Schmidt about his provocation claim was a situation that required Schmidt’s lawyer and said the Supreme Court has never extended the right to counsel outside an adversarial proceeding.

The Supreme Court’s “’critical stage’ precedent deals exclusively with adversarial confrontations between the defendant and an agent of the state,” she said.

She added: “Perhaps the right to counsel should extend to a hearing like the one the judge conducted in Schmidt’s case. But (federal law) precludes us from disturbing a state court’s judgment on the ground that a state court decided an open question differently than we would — or, for that matter, differently than we think the (Supreme) Court would.”

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