11th Circuit affirms conviction where portion of trial occurred without the defendant and her lawyer

The case is U.S. v. Lourdes Garcia. It is the follow up to U.S. v. Roy, where the trial proceeded without the defendant present and was affirmed by the en banc 11th Circuit. Both cases involve the same district judge. Here’s how Garcia starts out, by Judge Marcus:

This is a troubling case. There can be no doubt -- and the government does not contest the point -- that constitutional error occurred. It is also clear that the error was plain and obvious. The decision to allow the government to introduce inculpatory evidence while both the defendant and her lawyer were absent for three to ten minutes in a trial that lasted more than 49 hours violated the defendant’s right to counsel, her right to confront the witnesses arrayed against her, and her right to be present at trial under both the Due Process Clause and Fed. R. Crim. P. 43. The only question is whether Garcia’s convictions should be reversed on account of the error.
We hold that Garcia’s convictions must be affirmed because the errors did not affect Garcia’s substantial rights. There can be no question that Garcia failed to preserve the errors at trial even though she had ample opportunity to do so. She was given every chance to object and to secure some remedial relief from the trial court but expressly declined to act. As a consequence, under well-established law we must review the constitutional violations that occurred for plain error, not for harmlessness beyond a reasonable doubt. What’s more, there is good reason in this case to be punctilious in selecting the proper standard of review. The prejudice analysis is by no means clear-cut and the standard by which we measure it could well make all the difference.

Even though the defendant didn’t object, this is an absurd result. The problem started in Roy where the en banc court found that this wasn’t a structural issue. Hopefully the Supremes take a look.