En banc 11th Circuit decides U.S. v. Roy

At long last, the en banc 11th Circuit today decided United States v. Roy.  The opinions span 287 pages.  Judge Carnes wrote the majority opinion, finding harmless error in conducting trial without counsel present during a portion of the trial.  From the conclusion:

We end, as we began, by acknowledging that although Alexander Roy received a fair trial he did not receive a perfect one. Whatever the circumstances surrounding it, and regardless of who knew what and when they knew it, we do not condone the taking of any inculpatory testimony in the absence of defense counsel. It is constitutional error, which should be avoided. But neither would we condone, much less participate in, scuttling the harmless error rule. As we have explained, the rule plays an important role in, and serves vital interests of, our judicial system. To reverse Roy’s conviction based on his counsel’s brief absence during initial presentation of only a small part of the overwhelming evidence against his client would require us to enlarge exceptions to the harmless error rule to the point where they would be large enough to consume much of the rule. Doing that would run counter to decisions of the Supreme Court, this Court, and the better reasoned decisions of other circuits.
The dissent expresses the view that “we must vigilantly ensure we are adhering to our obligation” and “commitment to the Constitution” where the defendant has committed “disturbing” crimes. Dissenting Op. at 257. And it espouses the view that the more disturbing the crimes the defendant committed the greater our obligation to adhere to the law because “the constitutional processes that the Framers put into place are there to protect everyone, including people accused of the gravest and most serious crimes.” Id. We disagree with any suggestion, if it be such, that someone charged with sexual crimes against minors is entitled to more constitutional protections than someone charged with kiting checks. The constitutional protections are the same for all regardless of their crimes.
We do agree, of course, that “[t]he Sixth Amendment guarantee of the right to counsel does not apply on a sliding scale based on the gravity of the defendant’s offense.” Id. at 258. But neither does the application of the harmless error rule vary inversely with the seriousness of the crime. Countless other convicted defendants whose trials were less than perfect have been denied automatic reversal and a presumption of prejudice. This defendant, although he is entitled to the full protections of the law, is not entitled to special treatment. Because the Sixth Amendment violation that occurred during his trial was harmless beyond a reasonable doubt, his conviction is due to be affirmed.
The judgment of the district court is AFFIRMED.

 Judges Tjoflat, Pryor, Jordan, and Rosenbaum each filed concurring opinions.

Judges Wilson, Martin, and Pryor each filed dissenting opinions.

More to follow...