In a 2-1 decision filed August 5, the Eleventh Circuit held that a defense attorney’s absence from the courtroom during the presentation of key inculpatory evidence was grounds for reversal of the conviction per se, and that harmless error analysis did not apply. United States v. Alexander Michael Roy, No. 12-15093.
Roy was charged with possession of child pornography and attempting to entice a minor to engage in sexual activity. Following a lunchtime recess in Roy’s trial, trial recommenced at 1:29 p.m., but Roy’s attorney did not return to the courtroom until 1:36 p.m. During those seven minutes, the prosecution presented testimony from its computer forensics expert witness regarding files allegedly found on Roy’s computer. Roy’s attorney did not raise any objections upon returning to the courtroom.
Relying on United States v. Cronic, 466 U.S. 648 (1984), the Court of Appeals for the Eleventh Circuit determined that Roy’s attorney was absent during a “critical stage” of his trial, requiring reversal and a new trial. Ordinarily, error is not reversible unless it somehow prejudiced the appellant; errors that do not prejudice the appellant are known as “harmless error” and are not reversible. Here, however, the court cited earlier Eleventh Circuit cases for the position that “Cronic error is structural” such that harmless error analysis did not apply; “where actual or constructive denial of assistance of counsel occurs a per se rule of prejudice applies.” Roy, slip op. at 18 (quoting Crutchfield v. Wainwright, 803 F.2d 1103, 1108 (11th Cir. 1986) (en banc)). The court further determined that “[h]armless error review in a case like this one would be an exacting and problematic undertaking,” because it would be difficult for a reviewing court to determine prejudice based on the limited record. Slip op. at 20.
Chief Judge Carnes dissented. Judge Carnes questioned whether Roy’s attorney “may have deliberately taken advantage of his own tardiness” by failing to object and creating reversible error: “If so, it worked.” Slip op. at 30-31. Judge Carnes also pointedly noted “trial counsel conveniently did not represent the defendant on appeal,” preventing the court from asking what happened during oral argument. Slip op. at 31. Harmless error analysis did apply, Judge Carnes argued, and Roy could not possibly have been prejudiced by his counsel’s seven-minute absence.
Judge Carnes predicted the majority’s decision would have “far reaching adverse effects,” slip op. at 82, arguing it will “require district judges to closely monitor their courtrooms to ensure that each attorney arrives on time in the morning, returns promptly after every break, is at the bench during each discussion there, and doesn’t step out of the courtroom for even a moment while testimony is being taken. Judges, like kindergarten teachers, will be forced to keep an eye on their lawyer-children at all times to prevent one from toddling away without being noticed.” Slip op. at 84. Finally, Judge Carnes argued that the majority’s presumption of prejudice, “by pretending that something exists, when we as men and women know that it does not, risks undermining the public’s confidence in the administration of justice.” Slip op. at 101.