Monday, October 22, 2018

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.

12 comments:

Anonymous said...

Like I said, Eleventh Circuit is the one "nutty" circuit that is completely out of step with the rest of the circuits at least on criminal issues. It is really an embarrassment.

Anonymous said...

From the concluding paragraph: "We end where we began, by emphasizing that the Fifth and Sixth Amendment errors in this case are troubling. This is particularly true in the face of trial counsel’s deliberate failure to object. The failure to do so meant that the district court in this adversarial proceeding had less reason to act."

The district court judge needs an "incentive" to follow the Constitution? I thought all judges swore an oath to uphold the Constitution.

Anonymous said...

I think the district judge in question and the Eleventh Circuit are on to something. If the district judge prevents defense attorneys and their clients from attending their own trials, then they can't object to anything. And then the Eleventh Circuit will affirm, based on the "deliberate" failure to object to not being present. BRILLIANT!!!

Anonymous said...

Did you read Judge Wilson's concurring opinion? Oh boy. One wonders what this Circuit will not affirm in a criminal case.

Anonymous said...

Did any of you even read the facts? LOL

Anonymous said...

Judges know that even the most egregious constitutional violations will not lead to reversal in the 11th Circuit.

Anonymous said...

Obviously, having defense counsel actually present during the trial and doing things like objecting to what the judge and prosecutor are doing and sowing doubt in the minds of the jury is just really inconvenient and slows down the lynch-mob mental . . . I mean the rush to judgment.

Anonymous said...

And of course the repeat offending Judge is none other than KMM. Need I say more?

Anonymous said...

Interesting that Marcus's opinion doesn't really address the judge. Maybe because they're friends?

Anonymous said...

Defense atty gone 3 minutes in a 49 hour trial? That's totally inappropriate. It's lewd, lascivious, salacious, outrageous!

Anonymous said...

!2:43 glad you find it's funny that a judge sworn to uphold the constitution would make the prosecutor introduce evidence with no one at the defense table. So funny.

Anonymous said...

330 i just express my righteous indignation differently than others! No one is more upset about this travesty than me. No one. I am big league mad! Super duper i assure you!