Judge Wilson, joined by a visiting judge, issued
this opinion in United States v. Roy, which starts:
This appeal involves a defense attorney’s temporary absence from the courtroom at his client’s trial when inculpatory testimony was admitted into evidence and contributed to his conviction. Appellant Alexander Michael Roy (Roy) alleges that his criminal conviction was obtained in violation of the Sixth Amendment and the Supreme Court’s holding in United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047 (1984), which creates a presumption of prejudice and requires a new trial when counsel is absent during a “critical stage” of the trial. Because (1) Roy was a sole defendant during his criminal trial, (2) the afternoon session of Roy’s trial commenced while his counsel was actually and physically absent, and (3) during that absence, evidence directly inculpating Roy in a crime for which he was eventually convicted was presented to the jury, we conclude that Roy was denied counsel at a critical stage, and based on Cronic, we are required to reverse Roy’s conviction as to all counts of the indictment and remand the case to the district court for a new trial.
And concludes:
Where, as here, structural error has occurred, the entire trial is unfair and the convictions as to all counts are tainted. See Fulminante, 499 U.S. at 309–10, 111 S. Ct. at 1265. The Supreme Court has defined structural errors as those where the reviewing court “can only engage in pure speculation” about what the jury might have done; their consequences are “necessarily unquantifiable and indeterminate.” Sullivan v. Louisiana, 508 U.S. 275, 281–82, 113 S. Ct. 2078, 2082–83 (1993). Structural errors are “markedly different” from trial errors (which can be “quantitatively assessed”), and thus, structural errors “defy analysis by harmless-error standards.” Fulminante, 499 U.S. at 308, 309, 111 S. Ct. at 1264–65 (internal quotation marks omitted). There are some errors that courts can accurately measure and hold harmless. This is not one of them. Especially here, where the charges are interrelated and evidence relevant to one count may have influenced the jury as to others.
Chief Judge Carnes dissented, with this "forceful" introduction:
Returning late from a lunch break on the third day of a six-day trial, defense counsel missed a small part of the testimony of the twelfth of thirteen government witnesses. He was out of the courtroom for only seven of the 1,884 minutes, or 31.4 hours, of the trial (not counting recesses and jury deliberations), which amounts to less than one-half of one percent of the trial time. During his absence counsel missed only 18 answers out of a total of approximately 2,745 answers that were given by government witnesses during the trial, which means counsel missed less than one percent of the total number of answers given by witnesses for the prosecution. That’s it. And all of the testimony that he missed was repeated in even more detail by the same witness after counsel returned to the courtroom.
So far as it appears from the record, the judge and the prosecutor did not notice defense counsel’s brief absence. When he returned to the courtroom, counsel did not object to testimony having been taken in his absence. He did not ask the court to strike the questions and answers that he had missed and instruct the jury to disregard them. He apparently did not seek to have the questions and answers he missed read back to him outside the presence of the jury so that he could familiarize himself with them and object to any that were objectionable. For all that we can tell, counsel may have deliberately taken advantage of his own tardiness and carefully avoided any attempt to correct the problem, hoping that he could have a get-out-of-jail-free card in his pocket for his client. If so, it worked. The majority decides that the defendant’s convictions for attempted child enticement and for possession of child pornography, most of which the defendant produced himself, must be set aside because of his counsel’s brief absence, even though the record conclusively establishes that the absence could not possibly have prejudiced the defendant.
At oral argument, we could not ask the defendant’s trial counsel about the facts surrounding his absence from the courtroom, why he did not object, if he made any off-the-record effort to familiarize himself with the testimony taken in his absence, or anything else about the matter. The reason we could not ask what really happened, and why, is that trial counsel conveniently did not represent the defendant on appeal. Another attorney did. We could have remanded the case for an evidentiary hearing to find out all of the facts, but the majority refused my request to do that. The majority is content with only a swift sideways glance at the facts because it thinks the facts can be presumed away. But “[t]his is not a matter for polite [or impolite] presumptions; we must look the facts in the face.” Frank v. Mangum, 237 U.S. 309, 349 (1915) (Holmes, J., dissenting).
The majority’s view, now the law of this circuit, is that if a witness gives any testimony at all, even a single answer, supporting any count against the defendant while the defendant’s attorney is outside the courtroom, reversal of every count of conviction is automatic. No matter what. Reversal is automatic regardless of the reason for the absence. Regardless of whether the trial judge or prosecutor noticed the absence. Regardless of whether the answer given during the absence was objectionable. Regardless of whether the defendant suffered any actual prejudice from counsel’s absence. Regardless of whether counsel failed to object or seek any kind of corrective action. Regardless of whether counsel made a strategic decision not to seek to correct the problem. Regardless of whether the first mention of the matter was on appeal. And regardless of whether counsel deliberately engineered the whole thing. In other words, absence plus any inculpatory answer equals reversal regardless of any and all other facts and circumstances.
The majority holds that no matter how strong the evidence of the defendant’s guilt, all a defense attorney has to do to guarantee an automatic reversal of his client’s conviction on any and all counts is to be outside the courtroom while a witness gives a single inculpatory answer on any count against his client. The attorney can keep quiet about it until he sees what the verdict is and then claim his right to have any convictions set aside. And under today’s decision they must be set aside.
In fact, under the majority’s holding, it does not even matter if the attorney upon returning to the courtroom does object and does seek corrective actionbecause as soon as a single answer is given in his absence an absolute, conclusive, irrebutable presumption of prejudice arises. Nothing can be done. The law today’s decision puts in place is that absence during any inculpatory testimony at all is all that matters; no prejudice is required, no inquiry is allowed, no cure is permitted. Of course I dissent.
The majority has a lengthy response to the dissent, but I thought interesting the response to the argument that defense lawyers are unethically creating these errors on purpose:
We pause to address the concerns expressed by our dissenting colleague in his forceful dissent:
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Our dissenting colleague next suggests that Roy’s counsel “may have deliberately taken advantage of his own tardiness and carefully avoided anyattempt to correct the problem, hoping that he could have a get-out-of-jail-free card in his pocket for his client. If so, it worked." Further, the dissent says that counsel may have “deliberately engineered the whole thing” and that our decision today could invite misconduct by opportunistic counsel, which, according to the dissent, is prevalent in the three states of the Eleventh Circuit as reflected by statistics evidencing rampant lawyer misconduct in Florida, Georgia, and Alabama by criminal lawyers.
Our confidence in the integrity of lawyers, who are admitted to practice in our courtrooms as officers of the Court bound by rules of professional responsibility, satisfies us that our decision today will not go so far as to motivate them to place their licenses to practice law in jeopardy by, as the dissent suggests, strategically slipping out of the courtroom when the judge is not looking and when they think inculpatory evidence is coming, to invite reversible error in the event of a conviction. Nor does the parade of horribles imagined by the dissent permit us to disregard Cronic.
The dissent also maintains that judges are not like, in its words, “kindergarten teachers, [who] will be forced to keep an eye on their lawyer-children.” Contrary to that view, we are unpersuaded that United States District Judges should be excused from the less than onerous burden of ensuring that the defendant’s lawyer is seated at counsel table, next to his client, or is somewhere in the courtroom when the government seeks the admission of incriminating evidence that will be used by the jury to convict his client of a felony, resulting in life imprisonment. Especially in a trial with a single defendant who has a single lawyer.
We conclude that when the accused is deprived of his lawyer at a critical stage of his trial, there has been a denial of Sixth Amendment rights that makes the adversary process itself unreliable. The Constitution gives the defendant the right to “the guiding hand of counsel at every step in the proceedings against him.” Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 64 (1932). Accordingly, counsel’s absence during the admission of inculpatory evidence against Roy at his trial is “‘constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’” Cronic, 466 U.S. at 659, 104 S. Ct. at 2047 (emphasis added) (quoting Alaska, 415 U.S. at 318, 94 S. Ct. at 1111).
Although we reverse and remand for a new trial, a reversal does not mean that the defendant goes free. Rather, Roy will be retried in accordance with the rules of evidence and procedure, and without constitutional error.
