Case: 12-15093 Date Filed: 04/26/2017 Page: 1 of 281
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15093
________________________
D.C. Docket No. 2:12-cr-14022-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDER MICHAEL ROY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 26, 2017)
ON PETITION FOR REHEARING
Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and
JILL PRYOR, Circuit Judges.
Case: 12-15093 Date Filed: 04/26/2017 Page: 2 of 281
ED CARNES, Chief Judge:
Because it is a document designed to govern imperfect people, the
Constitution does not demand perfect trials and errors do not necessarily require
the reversal of a conviction. More than thirty years ago, the Supreme Court
reminded us: “As we have stressed on more than one occasion, the Constitution
entitles a criminal defendant to a fair trial, not a perfect one.” Delaware v. Van
Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 1436 (1986). Alexander Roy, who
was convicted in federal court of five sex-related crimes involving minors,
received a fair trial although not a perfect one.
The error in Roy’s trial occurred when his counsel returned a few minutes
late from a lunch break on the third day of the six-day trial. He missed only a
small part of the testimony of the 12th of 13 government witnesses. Counsel was
out of the courtroom for only seven minutes of a trial that lasted 1,884 minutes or
31.4 hours (not counting recesses and jury deliberations). That is 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. That is less than one percent of the total
testimony against Roy. And the little testimony that counsel had missed was
repeated in even more detail by the same witness after counsel returned to the
courtroom.
2
Case: 12-15093 Date Filed: 04/26/2017 Page: 3 of 281
The parties agree that it was Sixth Amendment error for inculpatory
testimony to be taken in the absence of defense counsel. Their primary
disagreement is about whether it was a type of structural error for which prejudice
is presumed, or trial error to which the harmless error rule applies. They also
disagree about whether our review is limited to plain error and about whether the
error was actually harmless.
I. The Charged Crimes
Roy was charged in a five-count indictment with sex crimes related to minor
girls. Count 1 charged him with attempted child enticement in violation of 18
U.S.C. § 2422(b), based on his efforts to arrange a sexual encounter with someone
he believed to be a 13-year-old girl in response to an internet ad posted by law
enforcement. That charge did not involve any child pornography. And no
questions about the Count 1 charge were asked during counsel’s brief absence.
None.
Counts 2–5 did involve child pornography. Each of those four counts
charged Roy with knowingly possessing “any visual depiction” of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2) (emphasis added).
The difference between those four counts is based on the four different electronic
devices Roy used to store his images of child pornography: his desktop computer
(Count 2); his laptop computer (Count 3); his USB thumb drive (Count 4); and
3
Case: 12-15093 Date Filed: 04/26/2017 Page: 4 of 281
three of his CD-ROM discs (Count 5). All that the government had to prove under
each of Counts 2–5 was that Roy knowingly possessed one or more images of
child pornography on the electronic device specified in that count. It could be the
same image or images on each device or different images, so long as there was at
least one on each device. As we will discuss in more detail in the next part, the
evidence proved without dispute that there were multiple still images and video
images of child pornography involving a number of different minors on each of
Roy’s four electronic devices. Roy had a sexual relationship with one of the
minors, and he had produced the pornographic still and video images of that child,
some of which were contained on all four devices. Each of the four devices also
contained other child pornography, involving different minors, that Roy had
downloaded from the internet.
II. The Evidence
For analytical ease we break the testimony and evidence presented during
the trial down into three categories: that presented before counsel’s brief absence
from the trial, that presented during his absence, and that presented after he
returned.
A. Before Counsel’s Absence
During the first two days of Roy’s six-day trial, with defense counsel present
at all times, the government called 10 witnesses whose testimony focused on the
4
Case: 12-15093 Date Filed: 04/26/2017 Page: 5 of 281
attempted child enticement charge in Count 1. Their unrefuted testimony showed
that Roy, a middle school teacher, set up a sexual encounter that he thought would
involve a 13-year-old girl and her mother, and he drove to a pre-arranged location
to meet the mother and child so that he could have sex with the child. Their
testimony also showed that he went to the illicit rendezvous with condoms and a
bottle of Astroglide lubricant in his pockets. Roy’s lawyer was in the courtroom
for the entirety of those first two days of trial and for the presentation of all of the
testimony and evidence about the crime that was charged in Count 1. He did not
miss any of it on any day. On the third day of trial, before the lunch break and in
counsel’s presence, there was additional testimony about Count 1, including the
fact that Roy had traveled more than an hour to get to the meeting place for the
purpose of having sex with a 13-year-old girl.
Much of the testimony on that third morning, however, went to Counts 2–5
and concerned Roy’s sexual relationship with L.B., the girl in the pornographic
images and videos that Roy himself had produced and stored, along with child
pornography from the internet, on his four electronic devices specified in those
four counts. That same morning, with defense counsel present, William Kulp, an
agent of the Florida Department of Law Enforcement, testified without objection
that L.B. was born on May 9, 1989. That means any pornography of her that was
produced before May 9, 2007 is child pornography. See 18 U.S.C. § 2256(1)
5
Case: 12-15093 Date Filed: 04/26/2017 Page: 6 of 281
(defining “minor” for this purpose as anyone under 18 years of age). The principal
at the high school L.B. had attended identified photos of her in various school
yearbooks, three of which were admitted into evidence without objection. The
principal’s testimony and those yearbook exhibits enabled the jury to compare how
L.B. looked at various ages during her school years with how she looked in the
pornography that Roy had produced.
The third and final government witness to be called before the lunch break
on the third day was Deputy Sheriff Charlie Longson, a computer forensics expert.
In defense counsel’s presence, he testified extensively about his qualifications and
how he examines a computer. He also testified about the user and
email/messenger accounts that he had found on Roy’s desktop computer. That
testimony was used, among other things, to put into evidence Roy’s email
messages setting up his sexual liaison with the (fictitious) 13-year-old and the
sexually oriented instant messenger conversations between Roy and (the real) L.B.
that were on his computer. Longson’s testimony was interrupted by a lunch break.
B. During Counsel’s Absence
Defense counsel returned late from the lunch break on the third day of trial
and missed seven minutes of Deputy Longson’s continuing testimony. During the
seven minutes counsel was out of the courtroom, Longson gave 18 answers to the
AUSA’s questions. All of those 18 answers concerned only six of the numerous
6
Case: 12-15093 Date Filed: 04/26/2017 Page: 7 of 281
images of child pornography, and all six of those images were of a single female
subject. Those particular images of the young female were found in only one of
the several file folders containing child pornography that were on Roy’s desktop
computer. That folder, when discovered by Longson on Roy’s desktop computer
had been labeled “2006-03-11.” On that date, L.B. indisputably would have been
16 years old.
Longson testified that those six images showed “a nude white
female . . . bound to a table by her feet with rope” and with “an orange
cloth . . . secured around her neck with silver duct tape.” He also testified that the
six images were taken with a Kodak v530 Zoom Digital Camera on March 10,
2005, were initially uploaded onto a computer on March 11, 2006, and were then
transferred to Roy’s desktop computer on April 4, 2009. During the seven minutes
while defense counsel was out of the courtroom, no exhibits were admitted into
evidence and Longson did not identify L.B. as the female in the six pornographic
images.
C. After Counsel Returned
Soon after counsel returned to the courtroom, the testimony that Longson
had given during counsel’s brief absence was repeated.1 And it was only after
1
There is only one difference. In his testimony while defense counsel was absent, Longson
said that the photographic images of the young female were taken on March 10, 2005; in his
7
Case: 12-15093 Date Filed: 04/26/2017 Page: 8 of 281
counsel returned that Longson identified L.B. as the young female in the six
images of pornography found on the desktop computer that he had been testifying
about.
This is how those events unfolded. After defense counsel entered the
courtroom, the prosecutor asked the court for permission to speak with him, which
the court granted. There was then a pause in the proceedings, and after the
prosecutor and defense counsel had an opportunity to speak, the prosecutor
approached witness Longson with 10 exhibits: the six pornographic images of
L.B. that Longson had found in the “2006-03-11” folder on Roy’s desktop
computer; three other pornographic images of L.B. from a different folder on that
computer, which was titled “2006-12-04”; 2 and a “contact sheet” generated by the
camera showing still images from a pornographic video of L.B., also recovered
from that second folder. See also infra n.3.
testimony after counsel returned, he said that they were taken on March 11, 2006. Regardless of
whether the photographic images were taken in March 2005 (when L.B. would have been 15
years old) or March 2006 (when L.B. would have been 16 years old), she was a minor at the
time. She did not turn 18 until May 9, 2007. See infra at 5–6.
2
In one place the transcript identifies this folder as “2006-02-04,” but the immediately
following question on that same page (“So December 4th, 2006?”) and the other references to the
folder name indicate that this was a transcription error and the folder was actually called “2006-
12-04.” For that reason, we are referring to it that way in this opinion. The difference, in any
event, is immaterial.
8
Case: 12-15093 Date Filed: 04/26/2017 Page: 9 of 281
With counsel present Longson then described in detail what each of those
images depicted, and he also testified that the six images from the “2006-03-11”
folder had been created on March 11, 2006, and uploaded onto Roy’s desktop
computer (which Roy had acquired later) on April 4, 2009. Those six images
showed the then-16-year-old L.B. “bound to a table by her feet with a . . . red and
white ski rope”; she was wearing an “orange hood across her head with silver duct
tape secured around the neck”; there was a “dildo inserted in her vagina” and “a
male’s penis . . . suspended above [her] body.” During that and all the other
testimony that would follow counsel was there.
He was present when Longson first described the other three pornographic
images of L.B. found on Roy’s desktop computer in the “2006-12-04” folder.
Those images showed L.B. lying naked in a bathtub, and written in “black ink both
on [her] chest between the breasts and then on [her] stomach over the nav[e]l”
were the words “Alex’s Little Cunt.” (Roy’s first name, of course, is Alexander,
and his roommate and L.B. both called him “Alex.”) Longson testified that those
particular pornographic images were taken on December 2, 2006. On that date,
L.B. indisputably would have been only 17 years old, which means she was a
minor for purposes of the child pornography charges against Roy in Counts 2–5.
At that point in the trial, Deputy Longson described for the first time the
contact sheet taken from the “2006-12-04” folder showing nine images from the
9
Case: 12-15093 Date Filed: 04/26/2017 Page: 10 of 281
pornographic video of L.B. A few pages later in the transcript, Longson repeated
his earlier testimony that all of the images of L.B. on Roy’s desktop had been taken
with a Kodak v530 Zoom Digital Camera, which is the model of camera recovered
from Roy’s home during the police search.
At the times all of those images of L.B. — the six in the “2006-03-11” folder
and the three plus the contact sheet from the “2006-12-04” folder — were created,
she was a minor for purposes of the child pornography charges against Roy in
Counts 2–5 because she was under 18 years of age. See 18 U.S.C. § 2256(1). The
10 exhibits consisting of those images were admitted into evidence without
objection. Being present during all of the testimony we have just recounted, Roy’s
trial counsel had an opportunity to object to the testimony or to admission of the
exhibits into evidence, if there were any basis for doing so. He did not object to
any of it.
In the presence of defense counsel, Longson also testified about finding on
Roy’s desktop, laptop, thumb drives, and CD-ROM discs numerous pornographic
videos of L.B. that had been made between October and December 2006 using a
Kodak v530 Zoom Digital Camera. It was undisputed that L.B. would have been
17 years old, and therefore a minor, during all of that time. Some of those videos
showed: L.B. bound and blindfolded with a “body net covering her body” and “a
red dildo inserted into her anus”; L.B. “fully nude” with a “dildo in her vagina”
10
Case: 12-15093 Date Filed: 04/26/2017 Page: 11 of 281
while she “perform[ed] fellatio on a white male”; L.B. “fully nude” with a
“vibrator in her vagina” while a white male “attempt[ed] to have annal [sic] sex
with her”; L.B. performing fellatio after removing a “school-girl outfit”; L.B.
having sexual intercourse with a man while she was tied up; and L.B. lying “nude
in [a] bathtub” with “Alex’s little cunt” scrawled across her chest and stomach
while a man urinated on her. Longson described each of those videos and they
were admitted into evidence. Although defense counsel was present during all of
that testimony and admission of exhibits, he did not object to any of it.
Deputy Longson’s testimony in defense counsel’s presence about the child
pornography that he found on Roy’s desktop, laptop, USB drive, and CD-ROM
discs was not limited to all of the images and videos of L.B. He also testified
about finding in temporary internet files on Roy’s desktop computer several
images of downloaded child pornography involving minors other than L.B., which
is a subject that had not been mentioned at all during counsel’s brief absence from
the courtroom. With counsel present, Longson described how one of those images
of other minors showed “two or three subjects under the age of 18 engaged in
sexual activity with two men.” He also described finding on Roy’s laptop a folder
labeled “Girls,” which contained pornographic images of other minors and files
named “kingpouge_14,” “vica16,” and “svet_16.” Longson testified that he had
found five images of child pornography featuring minors other than L.B. on Roy’s
11
Case: 12-15093 Date Filed: 04/26/2017 Page: 12 of 281
USB thumb drive. And he testified that he had found on Roy’s CD-ROM discs
multiple pornographic images of minors other than L.B., which were copies of
images on Roy’s other devices.
All of those were pornographic images of minors other than L.B., and all of
them were admitted into evidence. Although he was present during all of that
testimony, defense counsel did not object to any of it. Any one of those
pornographic images of minors other than L.B. was enough by itself to prove the
crime of possession of child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B), (b)(2), which is the crime charged in Counts 2–5 of the
indictment.
Once the prosecution completed its direct examination of Longson, defense
counsel cross-examined him over the course of 45 pages of the trial transcript. He
attempted to challenge Longson’s testimony that the images and videos of L.B.
were created when she was under the age of 18. His challenge fell short, however,
because Longson explained that data embedded in the images and videos of L.B.
showed that they had been taken on a date when L.B. was a minor. Defense
counsel did not even attempt during cross-examination or at any other time to
challenge Longson’s testimony about the pornographic images involving minors
other than L.B.
12
Case: 12-15093 Date Filed: 04/26/2017 Page: 13 of 281
On the fourth day of trial, the government called its last witness and then
rested. The defense called a few witnesses, including Robert Deane Moody, its
own computer forensics expert. He testified that there were reported problems
with the battery life of the Kodak camera model that Roy had used to produce the
pornographic images of L.B., which would cause the camera’s internal clock to
reset to its default date and time if the camera’s battery went dead. If the internal
clock in the camera used to create the images of L.B. had reset, in his opinion it
was possible that the creation dates that Deputy Longson had noted for the L.B.
images and videos might be inaccurate.
Moody conceded, however, that the problems he had described were not
necessarily present in all Kodak v530 cameras, and he conceded that Roy’s camera
might not have had any battery issues anyway. He admitted that the dates applied
by a user to the computer folders in which the L.B. images were stored (i.e.,
“2006-03-11,” “2006-10-13,” and “2006-12-04”) were all consistent with the
creation dates that the camera had automatically embedded in those images
themselves. Moody also admitted that the images and videos were numbered
sequentially and none of them showed any signs of having reverted back to an
earlier date.
13
Case: 12-15093 Date Filed: 04/26/2017 Page: 14 of 281
III. The Facts Concerning Counsel’s Brief Absence
We know only these facts about counsel’s absence. On the third day of trial
during the testimony of Deputy Longson, who was the 12th of 13 government
witnesses, the judge announced the lunch break: “Okay. So let’s go ahead and
break for lunch and ask you to be back at 1:30.” The jury left the courtroom at
12:33. The next thing in the transcript is this parenthetical notation by the court
reporter: “(Court recessed at 12:34 p.m., and proceedings continued, without the
presence of defense counsel, at 1:29 p.m.).”
The testimony of Deputy Longson resumed at 1:29 p.m. and continued for
two-and-a-half transcript pages, consisting of 18 questions and answers, after
which the following occurred:
[AUSA]: Your Honor, may I have a moment while I approach Counsel?
(Defense counsel entered the courtroom at 1:36 p.m.)
(Pause.)
[AUSA]: Thank you, Your Honor. May I approach, Your Honor?
The Court: All right.
[AUSA]: I’m showing the witness Government’s Exhibits 73-01 through
73-10. 3
3
Exhibits 73-01 through 73-06 are the pornographic still images of L.B. from the “2006-03-
11” folder that was found on Roy’s desktop computer. Exhibits 73-07 through 73-09 are the still
pornographic images of L.B. that were found in the “2006-12-04” folder on Roy’s desktop
computer. And Exhibit 73-10 is the “contact sheet” showing several still images from the
pornographic video of L.B. in that same folder.
14
Case: 12-15093 Date Filed: 04/26/2017 Page: 15 of 281
To recap, after lunch the trial resumed one minute earlier than it had been
scheduled to, and defense counsel returned six minutes later than the time he had
been instructed to be there. As a result, he missed seven minutes of a trial that
lasted a total of 1,884 minutes or 31.4 hours (not counting recesses and jury
deliberations), which means he was present during 99.6 percent of the trial.
Counsel missed hearing only 18 answers given by one of the 13 government
witnesses against him, who collectively gave a total of approximately 2,745
answers. Even if we consider only the testimony of Deputy Longson, the witness
who was on the stand when he returned late, counsel missed only three of the 175
pages of Longson’s total testimony (which consisted of 111 pages of direct
examination, 45 pages of counsel’s cross-examination, and 19 pages of redirect
examination). We know that from the record.
We do not know why counsel returned late from lunch. We also do not
know if he realized when he walked in late that some testimony had been taken in
his absence, either because he heard testimony being given, or he saw that there
was a witness on the stand and the AUSA was up, or because his client who had
been present told him what had happened. And we do not know if either the
15
Case: 12-15093 Date Filed: 04/26/2017 Page: 16 of 281
AUSA or the judge realized that defense counsel was absent when the trial
resumed after lunch.4
One thing that we do know is that neither party wants us to take the
necessary steps to find out any of those facts. Both sides insist that instead of
remanding for an evidentiary hearing to determine all of the other facts about
counsel’s brief absence, including who knew what and when, we should decide the
appeal solely on the basis of the facts that are already in the record. 5 We will. 6
4
If we were required to decide whether the judge realized that defense counsel was not
present when he resumed the trial after the lunch break, we would take into account the fact that
the judge had previously stated he would not start court after a recess without the lawyers being
present. This is what the judge had told the jury before the recess at the end of the first day of
trial:
We will get started Monday at 9:00 o’clock. So if you are unfamiliar with coming
into the Fort Pierce area that time of day, I ask that you give yourself a few extra
moments and get here before 9:00 o’clock, 8:45, 8:50 or so, so we can get started
on time. If we are missing just one of us, you, me, the lawyers, we can’t get
started. So in order to keep the case on track time-wise and [as a] courtesy to
your fellow jurors, I would ask that you be here sometime before 9:00 o’clock so
we can get started promptly at 9:00.
(Emphasis added.)
5
The following exchange during oral argument between a judge of this Court and Roy’s
appellate counsel conveys Roy’s position on the remand question:
Marcus, J.: . . . . I want to follow up on Judge Wilson’s question. He asked you
whether a remand is necessary if there’s a Cronic violation. Your
answer was no, because the record is complete.
Mr. Rashkind: Correct.
Marcus, J.: Let me ask the converse question. It would be equally true that a
remand would be unnecessary even if harmless error applied, right?
Mr. Rashkind: I think that’s probably true. Yes, sir.
Marcus, J.: Okay. So there’s no reason for a remand no matter how we come at the
question.
16
Case: 12-15093 Date Filed: 04/26/2017 Page: 17 of 281
IV. An Assumption to Simplify the Analysis
And Focus on the Harmless Error Issue
The government argues that we should review only for plain error and that
there isn’t any. See United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005)
(“We have discretion to correct an error under the plain error standard where (1) an
error occurred, (2) the error was plain, (3) the error affected substantial rights, and
(4) the error seriously affects the fairness, integrity or public reputation of judicial
proceedings.”). Absent any knowledge of why defense counsel was absent,
whether the AUSA or judge realized he was not present, about what counsel
realized or didn’t when he walked in late, and about whether he took some
ameliorative action not reflected in the transcript, we will not apply the plain error
rule or remand for any findings necessary to decide if it is applicable. Instead, in
order to simplify our analysis, we will indulge the assumption that the plain error
Mr. Rashkind: I don’t — I think you’re right.
The government’s position was essentially the same.
6
The lead dissent has difficulty confining itself to the facts in the record, as the parties agree
that we should. It almost does, but just five sentences from the end of its opinion, the dissent
says: “When a district court allows substantive, inculpatory evidence against a criminal
defendant in the absence of any counsel and in the presence of the jury . . . .” Dissenting Op. at
265. The problem with “allows” is that it implies the district court noticed defense counsel was
absent and went on. There is nothing in the record to indicate that the district court did that.
Instead, as we have pointed out, the indication is that the court did not notice counsel was absent,
although we make no assumption either way. See supra n.4.
17
Case: 12-15093 Date Filed: 04/26/2017 Page: 18 of 281
rule does not apply even though there was no contemporaneous objection. We can
indulge that assumption because even with it the result is the same.
Given that scope of review, we do agree with Roy that absent evidence of an
attempt to deliberately inject error into the record and without a waiver from the
defendant, it is a violation of the Sixth Amendment for inculpatory testimony to be
taken from a government witness without the presence of at least one of the
defendant’s counsel, regardless of whether the judge or the AUSA noticed that
counsel was not there. We do not, however, agree with Roy that prejudice is
presumed and reversal is automatic. Instead, for the reasons that follow we hold
that the harmless error rule is applicable to this brief absence of counsel from the
courtroom, and that the absence was harmless beyond a reasonable doubt in this
case.
V. Analysis: Why the Harmless Error Rule Applies
and the Rare Exceptions to It Do Not
Given our assumptions in Roy’s favor, the outcome turns on whether the
error in this case, like most constitutional errors, is one to which the harmless error
rule applies or instead is one of those rare cases where the presumption of
prejudice applies.7 If counsel’s brief absence is a type of structural error, we
7
This case does not involve one of those more common Sixth Amendment claims alleging
that counsel’s performance was outside the wide range of reasonable professional assistance and
that it prejudiced the defendant, with prejudice being defined as a reasonable probability of a
18
Case: 12-15093 Date Filed: 04/26/2017 Page: 19 of 281
presume prejudice and there will be no room for the application of the harmless
error rule. If it is not structural error, and no other rare exception requiring that
prejudice be presumed fits, the harmless error rule applies. And, as we will explain
later, the error was harmless beyond a reasonable doubt. See infra Part VI.
A. The Importance of the Harmless Error
Rule and How Pervasively It Applies
The harmless error rule serves vital interests, chief of which is conserving
scarce judicial resources by avoiding pointless retrials. Applying the rule to
determine whether error, including constitutional error, affected the result of a trial
is also essential to avoid a “sporting theory of justice” and a regime of gotcha
review. See United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 2400 (1976)
(quotation marks omitted).
“Reversal for error, regardless of its effect on the judgment, encourages
litigants to abuse the judicial process and bestirs the public to ridicule it.” Van
Arsdall, 475 U.S. at 681, 106 S. Ct. at 1436 (quotation marks omitted). The
different result but for counsel’s deficient performance. See Strickland v. Washington, 466 U.S.
668, 689–90, 694–95, 104 S. Ct. 2052, 2065–66, 2068 (1984). That type of attorney error issue
is the stuff of Strickland v. Washington and the tens of thousands of decisions that have cited,
discussed, and applied that progenitor of modern ineffective assistance law. Given the limited
knowledge we have about the circumstances involving the absence of Roy’s counsel and what, if
anything, he realized when he returned to the courtroom, and given the assumptions we have
made, see supra Part IV, we are not treating this as an attorney error case. See Vines v. United
States, 28 F.3d 1123, 1127 (11th Cir. 1994) (“Strickland assumes the presence of counsel and is
therefore inapplicable in the absence of counsel context.”). Nor do the parties treat it as one.
19
Case: 12-15093 Date Filed: 04/26/2017 Page: 20 of 281
Supreme Court has explained that the harmless error rule “promotes public respect
for the criminal process by focusing on the underlying fairness of the trial.” Neder
v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 1838 (1999) (quotation marks
omitted); see also Johnson v. United States, 520 U.S. 461, 470, 117 S. Ct. 1544,
1550 (1997) (reviewing only for plain error a violation of the Sixth Amendment
right to jury trial and deciding that “there is no basis for concluding that the error
seriously affected the fairness, integrity or public reputation of judicial
proceedings. Indeed, it would be the reversal of a conviction such as this which
would have that effect.”) (quotation marks and alterations omitted); see also 28
U.S.C. § 2111 (“On the hearing of any appeal or writ of certiorari in any case, the
court shall give judgment after an examination of the record without regard to
errors or defects which do not affect the substantial rights of the parties.”);
Shinseki v. Sanders, 556 U.S. 396, 407–08, 129 S. Ct. 1696, 1705 (2009)
(construing § 2111 “as expressing a congressional preference for determining
‘harmless error’ without the use of presumptions insofar as those presumptions
may lead courts to find an error harmful, when, in fact, in the particular case before
the court, it is not”).
We are, after all, talking about “the harmless error rule,” not “the harmless
error exception.” Because errorless trials are not expected, much less required,
harmless error analysis is the rule, not the exception. How broadly the rule applies
20
Case: 12-15093 Date Filed: 04/26/2017 Page: 21 of 281
is evident from the Supreme Court’s observation that: “Since this Court’s
landmark decision in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967), in
which we adopted the general rule that a constitutional error does not automatically
require reversal of a conviction, the Court has applied harmless-error analysis to a
wide range of errors and has recognized that most constitutional errors can be
harmless.” Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263
(1991) (emphasis added). The Court drove home that point by listing in the
Fulminante opinion 16 different constitutional violations that it had held are
subject to the harmless error rule. And the decision in Fulminante became a 17th
example by holding that admission of a coerced confession is another error that can
and should be reviewed for harmlessness. Id. at 306–09, 111 S. Ct. at 1263–64.
See infra at 76–78.
The dissenting opinion seeks to sweep away the important point that the
Supreme Court made in Fulminante when it listed 16 constitutional errors (plus the
one in that case itself) that have been held to be subject to harmless error analysis
instead of a presumption of prejudice.8 See infra at 76–77. The dissent would
replace the Supreme Court’s instruction in Fulminante about the breadth of the
harmless error rule with an alternative message that only “unimportant and
8
There are three dissenting opinions. All of our references to “the dissent” and “the
dissenting opinion” are to the principal dissenting opinion, which was authored by Judge Wilson
and joined by Judge Martin.
21
Case: 12-15093 Date Filed: 04/26/2017 Page: 22 of 281
insignificant” constitutional errors are subject to harmless error review under
Chapman. See Dissenting Op. at 221. But under Chapman constitutional errors
are not to be classified by the importance or significance of the constitutional right
that was violated but by the effect of the violation “in the setting of a particular
case.” See Chapman, 386 U.S. at 22, 87 S. Ct. at 827. That is why, as the Court’s
Fulminante list shows, the harmless error rule has been applied to all types of
constitutional errors, including: defects of every sort in jury instructions;
restrictions on the right to cross-examine adverse witnesses; improper comments
on the right to remain silent at trial; violation of the right of the defendant to be
present at trial; admission of a coerced confession; admission of evidence in
violation of the right to counsel; and denial of counsel at a preliminary hearing.
See infra at 76–77. Those violations do not involve “unimportant and
insignificant” constitutional rights, but the Court has applied the harmless error
rule to them nonetheless.
B. The Cronic Exception
For virtually every rule of law, however, there is an exception or two,
sometimes more. One of those exceptions at issue in this appeal is the Cronic
exception, which provides that prejudice is to be presumed, and therefore the
harmless error rule does not apply, when a criminal defendant has been completely
denied the right to counsel for a critical stage of the trial, which is an error that
22
Case: 12-15093 Date Filed: 04/26/2017 Page: 23 of 281
contaminates the entire proceeding. See United States v. Cronic, 466 U.S. 648,
659 & n.25, 104 S. Ct. 2039, 2047 & n.25 (1984). When an error of that
magnitude happens, we do not ask whether the error was harmless; we irrebutably
presume that it was harmful. See id.; see also Bell v. Cone, 535 U.S. 685, 695–96,
122 S. Ct. 1843, 1850–51 (2002) (noting that Cronic “identified three situations
implicating the right to counsel” in which prejudice to the defense could be
presumed). Roy’s primary contention is that his counsel’s brief absence from the
courtroom is Cronic error. It is not.
The Cronic decision limited the presumption of prejudice to cases where
defense counsel “entirely fails to subject the prosecution’s case to meaningful
adversarial testing” in the trial or where there is “the complete denial of counsel” at
a “critical stage of [the] trial.” Cronic, 466 U.S. at 659, 104 S. Ct. at 2047
(emphasis added). Roy has never contended, and could not contend, that his
counsel entirely failed to subject the prosecution’s case to meaningful testing.
Defense counsel was present during 99.6 percent of Roy’s trial, and he vigorously
represented Roy. Among other things, he cross-examined nine of the
government’s 13 witnesses, including Deputy Longson whom he cross-examined
for 45 pages of the trial transcript. Counsel also called his own competing expert
witness in an attempt to rebut Longson’s testimony. And he gave a vigorous
23
Case: 12-15093 Date Filed: 04/26/2017 Page: 24 of 281
closing argument. In sum, Roy’s counsel did “subject the prosecution’s case to
meaningful adversarial testing.” Id.
Instead of questioning the effectiveness of his representation, Roy contends
his case falls within the Cronic exception because his counsel’s brief absence
during one small part of the testimony of one of the 13 government witnesses
against him amounts to denial of counsel during a critical stage of the trial. We
turn now to the critical stage requirement that must be met before an error will be
found to fit within the Cronic exception to the prejudice requirement and the
harmless error rule. See id.
The last time that we sat en banc in a case involving a Cronic issue, we
emphasized that the exception applied “to only a very narrow spectrum of cases”
where “the defendant was in effect denied any meaningful assistance at all.” Stano
v. Dugger, 921 F.2d 1125, 1153 (11th Cir. 1991) (en banc) (emphasis added)
(quotation marks omitted); see United States v. Kaid, 502 F.3d 43, 46 (2d Cir.
2007) (expressing “reluctance to extend a rule of per se prejudice in any new
direction”) (quotation marks omitted). And we emphasized that the burden of
establishing that an error warrants Cronic’s presumption of prejudice is “a very
heavy one.” Stano, 921 F.2d at 1153 (quotation marks omitted).
The difficulty of carrying that “very heavy” burden and the “very narrow”
scope of the Cronic exception are evident from the fact that the Supreme Court has
24
Case: 12-15093 Date Filed: 04/26/2017 Page: 25 of 281
repeatedly refused to find it applicable. The Court has held that the Cronic
exception did not apply, and the usual showing of actual prejudice was required,
where trial counsel failed to present any mitigating evidence or make any final
argument during the penalty phase of a capital trial. Bell, 535 U.S. at 692–98, 122
S. Ct. at 1849–52. And the Court has held that the Cronic exception did not apply
and a showing of actual prejudice was required where trial counsel, without the
defendant’s consent, conceded that the defendant was guilty of capital murder as
part of his strategy to avoid a death sentence. Florida v. Nixon, 543 U.S. 175, 178,
190–92, 125 S. Ct. 551, 555, 562–63 (2004). Only once in the 30 years since the
Cronic decision was issued has the Supreme Court applied Cronic to presume
prejudice. See Penson v. Ohio, 488 U.S. 75, 88, 109 S. Ct. 346, 354 (1988)
(holding that “the presumption of prejudice must extend as well to the denial of
counsel on appeal” when the granting of an attorney’s motion to withdraw had left
the petitioner “entirely without the assistance of counsel on appeal”). The scope of
the Cronic exception is that narrow; the burden of showing it applies is that heavy.
Even in Cronic itself the Court did not find that the Cronic exception to the
harmless error rule applied. That case involved a woefully inexperienced, young
attorney who had been appointed to serve as counsel less than a month before trial
in a complex mail fraud case, a case that the government had investigated for over
four-and-a-half years during which it had reviewed thousands of documents.
25
Case: 12-15093 Date Filed: 04/26/2017 Page: 26 of 281
Cronic, 466 U.S. at 649, 104 S. Ct. at 2041. Despite those extreme facts, the
Supreme Court refused to presume prejudice, requiring instead that the defendant
show that he actually was prejudiced. Id. at 662–66, 104 S. Ct. at 2049–50. The
Court remanded the case for the court of appeals to determine whether the
defendant could establish deficient performance and prejudice, as required by
Strickland v. Washington. Id. at 666–67, 104 S. Ct. at 2051.
The Supreme Court’s insistence on confining the Cronic exception within
narrow boundaries is evident from the fact that in Nixon, Bell, and Cronic itself the
Court reversed the decisions of lower courts that had held the exception applied
and had presumed prejudice. See Nixon, 543 U.S. at 189–93, 125 S. Ct. at 561–
63; Bell, 535 U.S. at 688, 702, 122 S. Ct. at 1847, 1854; Cronic, 466 U.S. at 666–
67, 104 S. Ct. at 2051. And in all of those cases, the risk of prejudice to the
defendant was much greater than the risk of prejudice to Roy from his lawyer’s
seven-minute absence during a six-day trial.
One way that the Supreme Court has ensured that the Cronic exception will
remain rare, the scope of the decision will be narrow, and the burden of
establishing the exception will be heavy is by requiring that there be a complete
denial or total failure of counsel, if not at trial generally, at least at a critical stage
of the prosecution. See Cronic, 466 U.S. at 659, 104 S. Ct. at 2047 (“The
presumption that counsel’s assistance is essential requires us to conclude that a
26
Case: 12-15093 Date Filed: 04/26/2017 Page: 27 of 281
trial is unfair if the accused is denied counsel at a critical stage of his trial.”); see
also Bell, 535 U.S. at 697, 122 S. Ct. at 1851 (noting that counsel’s failure to test
the prosecution’s case “at specific points” does not rise to the level of Cronic
error).
In the Cronic opinion itself, the Court’s examples of a critical stage include
Hamilton v. Alabama, 368 U.S. 52, 54–55, 82 S. Ct. 157, 159 (1961), where
prejudice was presumed when the defendant was entirely denied any counsel
throughout all of his arraignment, and White v. Maryland, 373 U.S. 59, 59–60, 83
S. Ct. 1050, 1051 (1963), where prejudice was presumed after the defendant was
entirely denied counsel throughout all of his preliminary hearing. See Cronic, 466
U.S. at 659 n.25, 104 S. Ct. at 2047 n.25; see also Strickland v. Washington, 466
U.S. 668, 692, 104 S. Ct. 2052, 2067 (1984) (“Actual or constructive denial of the
assistance of counsel altogether is legally presumed to result in prejudice.”)
(emphasis added).
Roy’s position depends on his proposition that what took place during the
seven minutes when his counsel was out of the courtroom is unto itself a critical
stage of the trial. If the 18 answers that counsel missed hearing from one
government witness, out of a total of 2,745 answers from 13 government witnesses
during the trial, do not by themselves constitute a separate stage of the trial, Roy’s
Cronic argument fails. So Roy argues, as he must, that what occurred during those
27
Case: 12-15093 Date Filed: 04/26/2017 Page: 28 of 281
seven minutes must be considered by itself to be “a critical stage of his trial.”
Cronic, 466 U.S. at 659, 104 S. Ct. at 2047. 9
What, then, is a “critical stage” of a trial? We, like the Sixth Circuit, “would
welcome a comprehensive and final one-line definition of ‘critical stage’” for the
purposes of determining whether error is Cronic error. Van v. Jones, 475 F.3d 292,
312 (6th Cir. 2007). None exists, as that court recognized. Id. We do not,
however, need a comprehensive or pithy definition of the term to conclude that the
brief period during which Roy’s counsel was absent from the courtroom is not
itself a critical stage of the trial. If we held that seven minutes of a six day trial,
and 18 answers from one of 13 government witnesses, who gave a total of 2,745
answers during their testimony, amounts to a stage of a trial, we would have to
conclude that the presentation of the government witnesses at Roy’s trial was a
collection of 152 separate critical stages (2,745 ÷ 18 = 152.5) not even counting
other parts of the trial. If we did that, Cronic’s “very narrow” exception would be
very broad, contrary to what the Supreme Court and this Court stated. See Stano,
921 F.2d at 1153.
If 18 answers from one of 13 witnesses against a defendant were enough to
be a critical stage, what would not be? Would a single question and inculpatory
9
En Banc Br. of Appellant at 23 (“The quoted direct examination of the government expert
occurred during defense counsel’s absence. It involved the admission of inculpatory and
disputed evidence. It was, therefore, a critical stage of trial.”).
28
Case: 12-15093 Date Filed: 04/26/2017 Page: 29 of 281
answer from a government witness be enough to constitute a critical stage of the
trial? Under Roy’s extreme view it would be. He argues that: “The presentation
of inculpatory testimony by a government witness is a critical stage of trial.” En
Banc Br. of Appellant at 14. The dissenting opinion agrees with that view. If
counsel misses even one inculpatory answer from a government witness, in the
dissent’s view that’s it, irreparable error has been committed no matter what
happens in the rest of the trial. But it cannot be the law that every inculpatory
answer given by every government witness (or defense witness on cross-
examination) is a separate stage of the proceedings against the defendant. Trials
don’t consist of thousands of critical stages.
Although the brevity of counsel’s absence in this case and how little he
missed is striking, it’s not merely the fleeting nature of the absence that convinces
us that counsel was not gone during an entire “stage of [the] trial.” See Cronic,
466 U.S. at 659, 104 S. Ct. at 2047. Length alone does not always define a stage
of a trial. Depending on the circumstances, an arraignment could take 10 minutes
or less, although it is a critical stage. See Bell, 535 U.S. at 695–96, 122 S. Ct. at
1851.
The Supreme Court has instructed us that it has used the term “critical stage”
“to denote a step of a criminal proceeding, such as arraignment, that held
significant consequences for the accused.” Bell, 535 U.S. at 695–96, 122 S. Ct. at
29
Case: 12-15093 Date Filed: 04/26/2017 Page: 30 of 281
1851. And decision after decision shows that what the Court means when it does
use the term “stage” for Cronic purposes is a qualitatively distinct, discrete, and
separate phase or step of a criminal proceeding where the defendant has a right to
counsel, such as an arraignment, a post-indictment lineup, a preliminary hearing, a
plea hearing, closing arguments as a whole, or a sentence proceeding as a whole.
See Montejo v. Louisiana, 556 U.S. 778, 786, 129 S. Ct. 2079, 2085 (2009)
(describing post-indictment interrogation as a critical stage); Iowa v. Tovar, 541
U.S. 77, 87, 124 S. Ct. 1379, 1387 (2004) (“A plea hearing qualifies as a ‘critical
stage.’”); Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 1205 (1977)
(“[S]entencing is a critical stage of the criminal proceeding at which [the
defendant] is entitled to the effective assistance of counsel.”); Gilbert v. California,
388 U.S. 263, 272, 87 S. Ct. 1951, 1956 (1967) (“[A] post-indictment pretrial
lineup . . . is a critical stage of the criminal prosecution . . . .”); White, 373 U.S. at
59–60, 83 S. Ct. at 1051 (“Whatever may be the normal function of the
‘preliminary hearing’ under Maryland law, it was in this case as ‘critical’ a stage as
arraignment . . . .”); Hamilton, 368 U.S. at 53, 82 S. Ct. at 158 (describing
arraignment as “a critical stage in a criminal proceeding”).
In conformity with what the Supreme Court has done in this area, our sister
circuits generally treat “stage” in “critical stage” as meaning either a self-contained
proceeding or a discrete and separately identifiable portion of a larger proceeding.
30
Case: 12-15093 Date Filed: 04/26/2017 Page: 31 of 281
See, e.g., United States v. Ross, 703 F.3d 856, 873–74 (6th Cir. 2012) (deciding
that a competency hearing is a critical stage); McNeal v. Adams, 623 F.3d 1283,
1285, 1289 (9th Cir. 2010) (after considering several factors that might “make a
proceeding a critical stage,” holding that a hearing on a motion to compel the
defendant to provide a DNA sample is not a critical stage) (emphasis added);
McDowell v. Kingston, 497 F.3d 757, 762–63 (7th Cir. 2007) (explaining that no
Supreme Court authority indicates “that [a defendant’s] testimony, isolated from
the rest of his defense, constitutes a critical stage of the litigation,” and holding that
even the complete testimony of the defendant is not a critical stage); Harrington v.
Gillis, 456 F.3d 118, 132 (3d Cir. 2006) (noting that “an appeal is a critical stage of
criminal proceedings”) (emphasis added); United States v. Sanchez-Barreto, 93
F.3d 17, 20 (1st Cir. 1996) (noting that a “plea withdrawal hearing” is a critical
stage) (emphasis added).
Those decisions of the Supreme Court and of other circuits are consistent
with the everyday definition of “stage” as “a single step or degree in a process; a
particular phase, period, position, etc., in a process, development, or series.”
Stage, Random House Webster’s Unabridged Dictionary (2d ed. 2001) 1853–54.
In our lives, as well as throughout the law, when we refer to “stages” we do not
mean fleeting moments or small parts of events. Instead, we use the word to refer
to larger, discrete component parts of a process that share a common characteristic.
31
Case: 12-15093 Date Filed: 04/26/2017 Page: 32 of 281
For example, adolescence is a stage of life, but we would never speak or think of
every minute, hour, or day during adolescence by itself as a separate or discrete
stage of life.
The 18 questions and answers that Roy’s counsel missed do not fit any
accepted definition of “stage” or “critical stage.” They do not constitute a separate
step in the process of the trial, or a discrete phase of it. Not only are they not a
stage of the trial, those 18 questions and answers are not even an identifiable stage
of Deputy Longson’s testimony. They are just a small part of it — only three
transcript pages out of 177 total pages of his testimony. Nothing but counsel’s
absence marks the 18 questions to Longson as different from all of the others put to
him before lunch or all of those put to him after he returned to the courtroom
following lunch. They are all questions and answers of the same type as those that
preceded and followed them, and they occurred during direct examination of the
same one of the 13 government witnesses, asked by the same government lawyer.
The 18 questions and answers counsel missed are just a small part of the more than
2,500 that occurred during the six-day trial. Not only that, but all of those 18
questions were repeated after counsel returned to the courtroom.
The only defining characteristic of what took place in the trial during the
seven minutes while Roy’s counsel was absent is that it occurred while Roy’s
counsel was absent. Roy would have us define “stage” to equate with the absence
32
Case: 12-15093 Date Filed: 04/26/2017 Page: 33 of 281
of an attorney so that anything that happened in a trial during the absence of an
attorney, however brief it was, would be a stage of the trial. That definition is
hopelessly circular. Because the brief period during which Roy’s counsel was
absent is not itself a “stage of his trial,” Roy did not suffer “the complete denial of
counsel” for “a critical stage of his trial.” Cronic, 466 U.S. at 659, 104 S. Ct at
2047. For that reason, there was no Cronic error in this case.
We will discuss the Cronic “critical stage” arguments of Roy and the dissent
now. After doing that, we will turn to the related but different question of whether
a presumption of prejudice should arise when defense counsel is absent from a
substantial portion of the trial.
1. The Geders, Herring, and Brooks Decisions
The dissenting opinion relies on Geders v. United States, 425 U.S. 80, 96
S. Ct. 1330 (1976), Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550 (1975), and
Brooks v. Tennessee, 406 U.S. 605, 92 S. Ct. 1891 (1972), which it contends
involved “the denial of counsel ‘at a critical stage of . . . trial.’” Dissenting Op. at
255 & n.14 (alteration in original) (emphasis omitted) (quoting Cronic, 466 U.S. at
659, 104 S. Ct. at 2047). That interpretation ignores the unique type of
constitutional violations those cases involved and it ignores what the Court later
said about those decisions. See Perry v. Leeke, 488 U.S. 272, 279–80, 109 S. Ct.
594, 599–600 (1989).
33
Case: 12-15093 Date Filed: 04/26/2017 Page: 34 of 281
In its pre-Cronic decision of Geders, the Court applied a presumption of
prejudice to a Sixth Amendment violation that occurred when the trial court barred
defense counsel from advising or otherwise assisting his client during a 17-hour
recess. 425 U.S. at 91, 96 S. Ct. at 1337. The order had prevented the defendant
from discussing important matters with counsel, including “tactical decisions to be
made and strategies to be reviewed.” Id. at 88, 96 S. Ct. at 1335. The Geders
decision did not explicitly apply the “critical stage” rule or analysis; in fact, the
opinion does not mention the term “critical stage” or even the word “stage.”
Instead, as the Court explained later, Geders was one of a line of decisions
presuming prejudice where a defense attorney was prevented from, or impeded in,
rendering assistance of counsel to his client because of an unconstitutional statute
or court order. See Perry, 488 U.S. at 279–80, 109 S. Ct. at 599–600. Recognizing
that special subtype of Sixth Amendment violation, as the Court pointed out in
Perry, is consistent with what Strickland itself held. Id. at 279, 109 S. Ct. at 599.
While shortcomings and failures of counsel require a petitioner to show prejudice
from the deficient performance, “direct governmental interference with the right to
counsel is a different matter.” Id. The Perry Court quoted the following passage
from Strickland to drive home the point:
Government violates the right to effective assistance when it
interferes in certain ways with the ability of counsel to make
independent decisions about how to conduct the defense. See, e.g.,
Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330 (1976) (bar on
34
Case: 12-15093 Date Filed: 04/26/2017 Page: 35 of 281
attorney-client consultation during overnight recess); Herring v. New
York, 422 U.S. 853, 95 S. Ct. 2550 (1975) (bar on summation at
bench trial); Brooks v. Tennessee, 406 U.S. 605, 612–13, 92 S. Ct.
1891, 1895 (1972) (requirement that defendant be first defense
witness); Ferguson v. Georgia, 365 U.S. 570, 593–96, 81 S. Ct. 756,
768–70 (1961) (bar on direct examination of defendant).
Id. at 280, 109 S. Ct. at 599 (citations altered) (quotation marks omitted).
The statutory or court-ordered interference exception to the prejudice
requirement that was applied in Geders, Herring, and Brooks, that was recognized
in Strickland, and that was discussed in Perry, does not apply in this case and does
not govern our critical stage analysis. No statute or court-ordered bar kept Roy’s
trial counsel out of the courtroom for those seven minutes following lunch on the
second day of trial. And no statute or court order interfered with the ability of
Roy’s counsel to make independent decisions about how to conduct the defense.
2. The Gonzalez-Lopez, Woods, and Williams Decisions
The dissenting opinion also relies heavily on the Supreme Court’s decision
in United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557 (2006), which
did not involve an attorney’s brief absence from the courtroom. Instead, it
involved a complete violation of “the right of a defendant who does not require
appointed counsel to choose who will represent him.” Id. at 144, 126 S. Ct. at
2561; see id. at 143–44, 126 S. Ct. at 2561 (holding that the district court’s
erroneous rulings “violated respondent’s Sixth Amendment right to paid counsel of
his choosing”); id. at 146, 126 S. Ct. at 2562 (“[T]he right at stake here is the right
35
Case: 12-15093 Date Filed: 04/26/2017 Page: 36 of 281
to counsel of choice[.]”); id. at 147, 126 S. Ct. at 2563 (“The right to select counsel
of one’s choice, by contrast [to the right to effective assistance of counsel], has
never been derived from the Sixth Amendment’s purpose of ensuring a fair trial.”);
id. at 152, 126 S. Ct. at 2566 (“[T]he Government has conceded that the District
Court here erred when it denied respondent his choice of counsel.”).
The deprivation of the right to retained counsel of choice in Gonzalez-Lopez
was anything but momentary; it lasted longer than the trial itself. It was complete,
lasting throughout the entirety of the opening statements, the presentation of all of
the prosecution’s case, the presentation of all of the defense case, the closing
arguments, the jury instructions, the return of the verdict, and the post-verdict
proceedings. Id. at 142–44, 126 S. Ct. at 2560–61. As the Supreme Court noted,
“the deprivation of choice of counsel pervade[d] the entire trial.” Id. at 150, 126
S. Ct. at 2565. As a result, the start-to-finish “erroneous deprivation of the right to
counsel of choice” in Gonzalez-Lopez had “consequences that are necessarily
unquantifiable and indeterminate” and “unquestionably qualifies as ‘structural
error.’” Id. at 150, 126 S Ct. at 2564 (quotation marks omitted). 10
10
In its Gonzalez-Lopez opinion the Court cited Cronic only once, actually relying on Cronic
as support for the proposition that a defendant is usually required to show prejudice. See
Gonzalez-Lopez, 548 U.S. at 146, 126 S. Ct. at 2562 (“The cases the Government relies on
involve the right to the effective assistance of counsel, the violation of which generally requires a
defendant to establish prejudice. See, e.g., Strickland, 466 U.S. at 694, 104 S. Ct. 2052; Mickens
v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237 (2002); United States v. Cronic, 466 U.S. 648, 104
S. Ct. 2039 (1984).”) (citation reformatted).
36
Case: 12-15093 Date Filed: 04/26/2017 Page: 37 of 281
The Supreme Court explained in some detail why it would be impossible to
apply the harmless error rule and gauge the prejudicial effect of depriving a
defendant of the attorney he had retained and forcing him to use a different one
during the entire trial and post-trial stages:
Different attorneys will pursue different strategies with regard
to investigation and discovery, development of the theory of
defense, selection of the jury, presentation of the witnesses, and
style of witness examination and jury argument. And the
choice of attorney will affect whether and on what terms the
defendant cooperates with the prosecution, plea bargains, or
decides instead to go to trial. In light of these myriad aspects of
representation, the erroneous denial of counsel bears directly on
the “framework within which the trial proceeds,” Fulminante,
supra, at 310, 111 S. Ct. 1246 — or indeed on whether it
proceeds at all. It is impossible to know what different choices
the rejected counsel would have made, and then to quantify the
impact of those different choices on the outcome of the
proceedings. Many counseled decisions, including those
involving plea bargains and cooperation with the government,
do not even concern the conduct of the trial at all. Harmless-
error analysis in such a context would be a speculative inquiry
into what might have occurred in an alternate universe.
Id. at 150, 126 S. Ct. at 2564–65. The Court also explained the difference between
the denial of retained counsel of choice and more typical ineffective assistance
violations:
[I]f and when counsel’s ineffectiveness “pervades” a trial, it
does so (to the extent we can detect it) through identifiable
mistakes. We can assess how those mistakes affected the
outcome. To determine the effect of wrongful denial of choice
of counsel, however, we would not be looking for mistakes
committed by the actual counsel, but for differences in the
defense that would have been made by the rejected counsel —
37
Case: 12-15093 Date Filed: 04/26/2017 Page: 38 of 281
in matters ranging from questions asked on voir dire and cross-
examination to such intangibles as argument style and
relationship with the prosecutors. We would have to speculate
upon what matters the rejected counsel would have handled
differently — or indeed, would have handled the same but with
the benefit of a more jury-pleasing courtroom style or a
longstanding relationship of trust with the prosecutors. And
then we would have to speculate upon what effect those
different choices or different intangibles might have had. The
difficulties of conducting the two assessments of prejudice are
not remotely comparable.
Id. at 150–51, 126 S. Ct. at 2565. Those explanations underscore how
distinguishable the Gonzalez-Lopez case is from this one.
None of the Supreme Court’s reasoning about why it is impossible to gauge
the prejudicial impact of forcing a different attorney on the defendant throughout
the entire trial and post-trial stages of a case applies to a seven-minute absence of
counsel during a six-day trial when the missed testimony was not only transcribed
for review but was also repeated in the presence of counsel after he returned (and
as repeated was transcribed again).
The momentary absence of counsel from the courtroom in this case is
entirely different from the complete denial of counsel of choice throughout the
Gonzalez-Lopez case. A momentary absence, unlike a complete denial of counsel
of choice, does not affect the choice of “strategies with regard to investigation and
discovery, development of the theory of defense, selection of the jury, presentation
of the witnesses, and style of witness examination and jury argument.” Id. at 150,
38
Case: 12-15093 Date Filed: 04/26/2017 Page: 39 of 281
126 S. Ct. at 2564. It does not “affect whether and on what terms the defendant
cooperates with the prosecution, plea bargains, or decides instead to go to trial.”
Id. It does not require us to consider, as courts would with a complete denial of
counsel of choice, “such intangibles as argument style and relationship with the
prosecutors,” or what things the denied counsel “would have handled
differently — or indeed, would have handled the same but with the benefit of a
more jury-pleasing courtroom style or a longstanding relationship of trust with the
prosecutors.” Id. at 151, 126 S. Ct. at 2565. The denial of counsel of choice
“bears directly on the framework within which the trial proceeds — or indeed on
whether it proceeds at all.” Id. at 150, 126 S. Ct. at 2564–65 (quotation marks and
citation omitted). The momentary absence of Roy’s counsel from the courtroom
does not.
To borrow the Supreme Court’s words, “[t]he difficulties of conducting the
two assessments of prejudice are not remotely comparable.” Id. at 151, 126 S. Ct.
at 2565. They are not comparable because what Roy’s momentarily absent counsel
would have done, or should have done, had he been present are “identifiable
mistakes,” and “[w]e can assess how those mistakes affected the outcome.” Id. at
39
Case: 12-15093 Date Filed: 04/26/2017 Page: 40 of 281
150–51, 126 S. Ct. at 2565; see infra Part VI (explaining why the error was
harmless beyond a reasonable doubt in this case).11
The dissent also goes astray in its reading of Woods v. Donald, 575 U.S.
___, 135 S. Ct. 1372 (2015) (per curiam), a decision that actually reversed a grant
of habeas relief based on a lower court’s holding that Cronic error occurred when
defense counsel was absent for 10 minutes during the testimony of a prosecution
witness. See Dissenting Op. at 246. The Sixth Circuit had held that the state court
decision denying the petitioner habeas relief because of that 10-minute absence
was contrary to, or involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court within the meaning of 28 U.S.C.
§ 2254(d)(1). 135 S. Ct. at 1375. In reversing the Sixth Circuit, the Supreme
Court pointed out that none of its own holdings have addressed defense counsel’s
absence during the presentation of testimony that is irrelevant to the defendant’s
theory of the case. Id. at 1377. It did not hold or say, however, that a brief
absence during testimony that is relevant to the defendant’s theory of the case is
Cronic error. In fact, the Court cautioned that it was expressing “no view on the
merits of the underlying Sixth Amendment principle,” because “[a]ll that matters
11
How distinguishable Gonzalez-Lopez is from this case and others involving brief
absences of counsel from the courtroom is evident from the dissent’s inability to point to any
decision of any court anywhere suggesting that the holding of Gonzalez-Lopez or anything the
Supreme Court said in that case is applicable to momentary absence of counsel situations.
40
Case: 12-15093 Date Filed: 04/26/2017 Page: 41 of 281
here, and all that should have mattered to the Sixth Circuit, is that we have not held
that Cronic applies to the circumstances presented in this case.” Id. at 1378
(quotation marks omitted).
Despite that caution, the dissent insists that more mattered in the Woods
decision than the Supreme Court realized. What the Court failed to realize,
according to the dissent, is that despite its protestations to the contrary, it was
offering “valuable insight into the type of distinctions the Court may make if and
when it takes such a case on direct review.” Dissenting Op. at 246 n.11. So what
should we believe –– the Supreme Court’s emphatic statement that it was
expressing “no view on the merits of the underlying Sixth Amendment principle,”
or the dissent’s insistence that yes it was? We choose to believe the Supreme
Court meant what it said. See Mathis v. United States, 579 U.S. ___, 136 S. Ct.
2243, 2254 (2016) (“[A] good rule of thumb for reading our decisions is that what
they say and what they mean are one and the same . . . .”).
The dissent also relies on the decision in Williams v. Pennsylvania, 579
U.S. ___, 136 S. Ct. 1899 (2016). Dissenting Op. at 259–260. But that decision
dealt solely with structural error involving a biased judge. It had nothing to do
with a brief absence of defense counsel from the courtroom. To the extent that the
dissent cites it for the proposition that structural error requires reversal, the answer
is that of course it does but there was no structural error in this case.
41
Case: 12-15093 Date Filed: 04/26/2017 Page: 42 of 281
3. The Vines Decision
Except in the now-vacated panel decision in this case, we have not yet
decided whether the brief absence of counsel during the presentation of testimony
that directly inculpates the defendant is Cronic error. A couple of decades ago a
panel of this Court did decide that the absence of defense counsel while
government witnesses gave testimony that did not directly inculpate the defendant
was not Cronic error. Vines v. United States, 28 F.3d 1123, 1128 (11th Cir. 1994).
The case involved a two-defendant, two-day drug trial, and at 4:15 p.m. on the first
day counsel for Vines left “for the remainder of the day” for some undisclosed
reason. Id. at 1125. The opinion does not disclose how much of the trial day
remained when counsel left, but it does reveal that during counsel’s absence, an
FBI agent and another government witness testified. Id. at 1126. The FBI agent
testified, among other things, about how the manner of shipping that the
defendants used in that case “fit the modus operandi of contraband smugglers.” Id.
Vines was convicted on the conspiracy charge and acquitted on the
distribution charge, and he argued on appeal from the denial of his 28 U.S.C.
§ 2255 motion that the absence of his counsel during the testimony of those two
government witnesses was a Sixth Amendment violation that entitled him to have
his conviction set aside. Id. at 1126–27. After noting that the Strickland decision
applies only where counsel is present, the Court assumed, without deciding, that
42
Case: 12-15093 Date Filed: 04/26/2017 Page: 43 of 281
the absence of counsel during the taking of testimony is constitutional error. Id. at
1127–28. It addressed Vines’ argument that the absence of his counsel from the
trial was not only a Sixth Amendment violation but also Cronic error giving rise to
an irrebutable presumption of prejudice. Id. at 1127–28. The Court reasoned that
“Cronic’s presumption of prejudice applies to only a very narrow spectrum of
cases,” and concluded that Vines was not one of those rare cases. Id. at 1128 & n.8
(quotation marks omitted).
In reaching that conclusion, the Court rejected Vines’ argument “that under
Cronic the taking of evidence is a critical stage of trial per se,” and stated that “we
decline to give birth to a rule that the taking of evidence is necessarily a critical
stage of trial.” Id. at 1128. After reviewing the record, it found that “no evidence
directly inculpating Vines was presented during his counsel’s absence.” Id. The
holding of Vines fitted to the facts before the Court was that: “Where, as in this
case, no evidence directly inculpating a defendant is presented while that
defendant’s counsel is absent, we decline to hold that counsel was absent during a
critical stage of trial within the meaning of Cronic.” Id.
While panel decisions do not bind us when we sit en banc, we find
persuasive the Vines holding that the taking of testimony or other evidence that
only indirectly inculpates the defendant is not a critical stage of the trial. As the
Court said there: “While trial counsel may exercise poor judgment in absenting
43
Case: 12-15093 Date Filed: 04/26/2017 Page: 44 of 281
himself or herself from a portion of a trial, such flawed judgment does not
necessarily infect the entire trial.” Id. at 1129. Counsel’s absence was neither
Cronic error nor some other type of structural error but instead was trial error
“capable of quantitative assessment” and subject to the harmless error rule. Id.
That is all that the Vines decision did hold or could hold. It did not hold ––
and because the facts of that case did not present the issue it could not have held ––
that the taking of any testimony that does directly inculpate the defendant is a
critical stage of the trial for Cronic purposes. See Watts v. BellSouth Telecomms.,
Inc., 316 F.3d 1203, 1207 (11th Cir. 2003) (“[J]udicial decisions cannot make law
beyond the facts of the cases in which those decisions are announced.”); see also
Anders v. Hometown Mortg. Servs., Inc., 346 F.3d 1024, 1031 (11th Cir. 2003);
United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000).
4. The Decisions of Other Circuits
A handful of other circuits have addressed Cronic issues arising from
counsel missing part of a trial. Some of the cases giving rise to those issues are
more factually similar to this one than others are. And some of those decisions are
more persuasive than others.
i. The Out-of-Circuit Decisions Roy Relies On
Roy argues that some decisions from other circuits support his bold claim
that any inculpatory testimony, however brief, constitutes a critical stage of any
44
Case: 12-15093 Date Filed: 04/26/2017 Page: 45 of 281
trial regardless of the circumstances. See Burdine v. Johnson, 262 F.3d 336 (5th
Cir. 2001) (en banc); United States v. Russell, 205 F.3d 768 (5th Cir. 2000); Olden
v. United States, 224 F.3d 561 (6th Cir. 2000); Green v. Arn, 809 F.2d 1257 (6th
Cir. 1987), vacated on other grounds, 484 U.S. 806, 108 S. Ct. 52 (1987),
reinstated, 839 F.2d 300 (6th Cir. 1988). All four of those decisions are readily
distinguishable.
In two of them, Russell and Olden, counsel was absent for more than an
entire day of trial. The Fifth Circuit decided in Russell that the absence of a lawyer
for two days of his client’s trial for drug and money-laundering conspiracy was
Cronic error requiring a presumption of prejudice. See Russell, 205 F.3d at 769–
70; 772–73. During his absence counsel missed the testimony of no fewer than 18
government witnesses — not questions but witnesses — and the admission of
“numerous exhibits,” all of which went to prove the existence of the money-
laundering conspiracy. See id. at 770. Russell’s attorney did not hear a single
word of the testimony of those 18 government witnesses, nor did he have the
chance to cross-examine any of them.
The difference between that case and this one is striking. While counsel in
Russell missed two full days and all of the testimony of 18 government witnesses,
Roy’s counsel did not miss a day, or an hour, or even 10 minutes worth of
testimony of a single witness. He missed only seven minutes of the testimony of
45
Case: 12-15093 Date Filed: 04/26/2017 Page: 46 of 281
one government witness; he was present during all but three of the 177 transcript
pages of that witness’ testimony; and he heard every bit of all of the testimony of
the other 12 government witnesses. Not only that, but the Fifth Circuit in Russell
rejected the position that Roy takes in this case. It unequivocally stated: “Russell
urges this court to adopt a bright line rule that the taking of any evidence at trial in
the absence of counsel is prejudicial per se under [Cronic]. Cronic does not so
hold and we decline to fashion such a rule.” Id. at 771 (citation omitted). We
agree.
Another decision Roy relies on is Olden, where the Sixth Circuit concluded
that a defense attorney’s “excessive absence” during trial amounted to Cronic
error. Olden, 224 F.3d at 566, 568–70. Counsel was “absent on numerous
occasions during trial,” including for two days during which he missed hearing the
testimony of at least two prosecution witnesses, which incriminated his client. Id.
at 568. That is obviously different from what happened here.
In the other two out-of-circuit decisions that Roy relies on, the courts were
unable to determine exactly how long defense counsel had been absent during the
trial. In Green, which like Olden was a Sixth Circuit decision, defense counsel was
absent for at least 100 minutes of trial, during which the key government witness
against his client was cross-examined by another defendant’s attorney. See Green,
809 F.2d at 1260–61. How much more than the hour and forty minutes of that
46
Case: 12-15093 Date Filed: 04/26/2017 Page: 47 of 281
important testimony counsel missed could not be determined from the record.12
And in Burdine, another Fifth Circuit decision, the court found Cronic error
because the capital defendant’s counsel had slept through “a not insubstantial
portion of the 12 hour and 51 minute trial,” including during the prosecutor’s
presentation of evidence against the defendant. 262 F.3d at 338–40, 348–49. One
juror testified that he recalled counsel sleeping as many as 10 different times
during the short trial. Id. at 339. By contrast, seven minutes is not a substantial
portion of a six-day trial. And one absence, whether of consciousness or
physically, is not 10. It is also worth noting that the Fifth Circuit explicitly stated
12
There is some ambiguity in the Green opinion about the actual length of defense counsel’s
absence, but portions of the transcript that are quoted in that opinion indicate that he was gone
for at least an hour and forty minutes of the trial. See Green, 809 F.2d at 1260 (noting that
defense counsel for Green’s codefendants had begun cross-examining a witness at 2:00 p.m. and
by 3:40 p.m. the defendant’s trial counsel still had not returned to the courtroom).
Not only that, but Green’s counsel may have also missed other portions of the criminal
proceedings against her, including an entire hearing on a suppression motion, the government’s
closing arguments at trial, and the jury asking the judge questions that had come up during its
deliberations. See id. at 1259 n.1.
The Green court did suggest that “[t]he absence of counsel during the taking of evidence on
the defendant’s guilt is prejudicial per se” and forecloses any inquiry into harmless error. Id. at
1263. However, the court undercut that apparently categorical statement when it noted that
“some absences by a criminal defendant’s attorney might be so de minimis that there would be
no constitutional significance.” Id. at 1261. In any event, the actual holding of the Green
decision cannot be that any absence of counsel during any inculpatory testimony requires a
presumption of prejudice because those were not the facts of that case, and the holding of a case
cannot extend past its facts, as we have repeatedly held. See, e.g., Anders, 346 F.3d at 1031;
Watts, 316 F.3d at 1207; Aguillard, 217 F.3d at 1321. If the holding of Green were that the
absence of counsel during the taking of any evidence of a defendant’s guilt is “prejudicial per
se,” we would disagree for the reasons explained throughout this opinion.
47
Case: 12-15093 Date Filed: 04/26/2017 Page: 48 of 281
in Burdine that its holding was “limited to the egregious facts found” in that case.
Id. at 349.
All four of the cases on which Roy bases his argument do have one thing in
common with each other: they are all cases in which a meaningful prejudice
analysis would be difficult, if not impossible, and would consume a lot of judicial
resources. In both Russell and Olden, for example, the court would have had to
pore over two days of inculpatory testimony by multiple witnesses to even begin
the prejudice analysis. See Russell, 205 F.3d at 769–70, 772–73; Olden, 224 F.3d
at 568–69. And in Green and Burdine, the problem was even worse, because the
record in those cases did not disclose exactly when counsel was absent (or in
Burdine asleep), which adds a thick layer of speculation on top of that which is
inherent in any kind of prejudice determination. See Burdine, 262 F.3d at 339–40;
Green, 809 F.2d at 1260–62. When an appellate court knows that counsel’s
absence was substantial but cannot tell exactly what testimony or other evidence
counsel missed, the prejudice inquiry is more difficult and may be impossible.
That is not a problem here. We know exactly when Roy’s counsel was
absent. We know exactly which 18 questions and answers he missed. We know
exactly which of those 18 questions and answers were repeated after he returned to
the courtroom. And we know what counsel did, and did not do, after he heard
those questions asked and answered. We also know which counts of the
48
Case: 12-15093 Date Filed: 04/26/2017 Page: 49 of 281
indictment those questions and answers were directly related to and which ones
they were not. Because we know all of that, and given the brevity of counsel’s
absence, the prejudice inquiry in this case is not impossible; it is not even difficult.
See infra Part VI.
ii. The Out-of-Circuit Decisions That
Are More Analogous and Persuasive
The Second Circuit has refused to presume prejudice from defense counsel’s
absence in a case that is far more similar to this one than any of those that Roy
relies on. See United States v. Kaid, 502 F.3d 43 (2d Cir. 2007). In the Kaid case
several codefendants were convicted of conspiring to commit money laundering
and of trafficking in contraband cigarettes. Id. at 45. Defense counsel for one of
the codefendants, Azzeaz Saleh, had missed 20 minutes of the trial because he
misunderstood when the judge planned to resume after a lunch break. Id. at 44–45.
The trial began without him, and while he was absent the government presented
evidence that was highly inculpatory of Saleh. Id. at 45. Counsel missed the
government showing the jury a video of Saleh and his codefendants purchasing the
allegedly contraband cigarettes, and counsel missed a witness testifying that at nine
separate points the video showed Saleh. Id.
Saleh argued on appeal that he was entitled to a presumption of prejudice
because his attorney had been absent during a critical stage of the trial. Id. at 45–
46. The Second Circuit unequivocally rejected that argument. Id. at 46–47. It
49
Case: 12-15093 Date Filed: 04/26/2017 Page: 50 of 281
affirmed Saleh’s convictions after concluding that he had not shown that he was
prejudiced by his counsel’s 20-minute absence because (1) counsel had been able
to challenge the admissibility of the identification testimony the day before he was
absent from the courtroom, and (2) after counsel returned to the courtroom he had
been able to cross-examine the witness who had repeatedly identified Saleh in the
video. Id. at 45, 47.
The Second Circuit’s decision that the presumption of prejudice did not
apply in that case is important. The circumstances in Roy’s case are even stronger
for affirmance, not only because the absence in Kaid was nearly three times as long
as the absence in Roy’s case, but also because there is no indication in the Kaid
opinion that the evidence counsel missed was repeated after counsel returned to the
courtroom, as it was in Roy’s case. See generally 502 F.3d 43.
The Second Circuit in Kaid is not alone in its analysis or conclusion. In our
view, the best reasoned out-of-circuit decision holding that a brief absence of
counsel is not structural error is the Eighth Circuit’s in the Sweeney case. See
Sweeney v. United States, 766 F.3d 857 (8th Cir. 2014). In that case, defense
counsel left the courtroom and went to the restroom during the direct examination
of a key prosecution witness –– a co-conspirator who had flipped and was
providing inculpatory testimony against the defendant. Id. at 859. While counsel
was out of the courtroom, the cooperating co-conspirator witness answered 43 of
50
Case: 12-15093 Date Filed: 04/26/2017 Page: 51 of 281
the prosecutor’s questions (as compared to 18 questions in Roy’s case) covering
six transcript pages (as compared to three in Roy’s case). See id. at 859, 861;
Redacted Trial Tr. at 122–29, United States v. Sweeney, No. 06-CR-0249(PJS) (D.
Minn. July 22, 2009) (ECF No. 390). That is twice as many transcript pages of
testimony and more than twice as many questions and answers as counsel missed
in Roy’s case.
Sweeney was a 28 U.S.C. § 2255 proceeding, and the certificate of
appealability stated the issue as whether “the actual absence of counsel for a brief
period of time during the direct testimony of a government witness [was] subject to
harmless-error analysis.” Id. at 858. The parties agreed, and the Eighth Circuit
recognized, that the absence of counsel, which the judge knew about and permitted
without Sweeney’s consent, was a violation of the Sixth Amendment right to
counsel. Id. at 859–60. Sweeney argued “that in light of Cronic, the error is a
structural defect that is presumptively prejudicial and requires reversal,” while the
government countered “that because of the brevity of Sweeney’s counsel’s
absence, it amounted to nothing more than a trial error subject to a harmless-error
analysis.” Id. at 860.
In its analysis, the Eighth Circuit noted that: “The Supreme Court has
divided constitutional violations that occur during a criminal proceeding into two
categories: trial errors and structural defects.” Id. It looked to, and quoted from,
51
Case: 12-15093 Date Filed: 04/26/2017 Page: 52 of 281
Supreme Court decisions for the definition of those terms: “A ‘trial error’ is an
error that may ‘be quantitatively assessed in the context of other evidence
presented,’ and is subject to harmless-error analysis.” Id. (quoting Fulminante, 499
U.S. at 307–08, 111 S. Ct. at 1264). By contrast, a “‘structural defect’ is
something that ‘affects the framework within which the trial proceeds, rather than
simply an error in the trial process itself’ and thus ‘defies analysis by “harmless-
error” standards.’” Id. (quoting Fulminante, 499 U.S. at 309–10, 111 S. Ct. at
1265) (alterations omitted).
The Eighth Circuit pointed out that “[t]he Supreme Court has recognized
that most constitutional errors can be harmless, and that structural defects are the
exception and not the rule.” Id. (citation and quotation marks omitted). It quoted a
Supreme Court’s decision holding that “[o]nly structural defects that undermine
‘the fairness of a criminal proceeding as a whole require reversal without regard to
the mistake’s effect on the proceeding.’” Id. (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 81, 124 S. Ct. 2333, 2339 (2004)) (alterations omitted). The
harmless error rule applies to everything else, or as the Supreme Court put it in the
decision the Eighth Circuit quoted, except for defects that undermine the fairness
of the entire criminal proceeding, “relief for error is tied in some way to prejudicial
effect.” Dominguez Benitez, 542 U.S. at 81, 124 S. Ct. at 2339.
52
Case: 12-15093 Date Filed: 04/26/2017 Page: 53 of 281
The Eighth Circuit also relied on the Supreme Court’s holding in Satterwhite
that “those ‘Sixth Amendment violations that pervade the entire proceeding’
can ‘never be considered harmless.’” Id. at 860–61 (quoting Satterwhite, 486 U.S.
at 256, 108 S. Ct. at 1797) (emphasis in Sweeney). Applied to counsel absences
during trial, that holding means that those counsel absences extensive enough to
pervade the trial process and undermine the fairness of the trial as a whole amount
to Cronic or structural error. All other counsel absences are trial errors subject to
the harmless error rule. And the court concluded that “Sweeney’s counsel’s brief
absence was not a ‘complete’ absence because it only lasted three minutes,” and
“the brevity of the absence distinguishes this case from the ‘complete denial of
counsel’ discussed in Cronic.” Id. at 861 (quoting Cronic, 466 U.S. at 659, 104
S. Ct. at 2047) (emphasis in Sweeney).
In affirming the rejection of Sweeney’s Cronic claim, the Eighth Circuit
quoted part of the district court’s reasoning in that case, which is worth requoting
here. This is what the Eighth Circuit by adoption said about why the
circumstances in that case (which are materially identical to those in this case) are
well-suited for harmless error analysis:
The fact that the record demonstrates precisely what [Sweeney’s
counsel] missed while he was out of the room — and the fact that his
absence was so brief — allows the Court to confidently assess
whether Sweeney was harmed by [his counsel’s] absence. Indeed, the
Court is far better equipped to conduct a harmless-error analysis in
53
Case: 12-15093 Date Filed: 04/26/2017 Page: 54 of 281
this case than it is in other contexts, in which a substantial amount of
speculation is unavoidable.
Id. (quoting the district court) (alterations in original). The court in Sweeney knew
exactly what counsel missed because it had a transcript of the testimony taken
while he was gone, just as we do in this case.
The reasoning in Sweeney, which we adopt, dovetails with the Supreme
Court’s explanation of its decision in Satterwhite. See 486 U.S. 249, 108 S. Ct.
1792. The Sixth Amendment error in Satterwhite occurred when a psychiatrist for
the State testified at a capital sentencing proceeding based on what the defendant
had told him during an examination conducted without the knowledge of his
attorney in violation of Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866 (1981).
Satterwhite, 486 U.S. at 251–55, 108 S. Ct. at 1795–96. In determining that the
Sixth Amendment violation resulting from admission of the psychiatrist’s
testimony was not structural error but was instead trial error subject to review for
harmlessness, the Supreme Court explained:
We have permitted harmless error analysis in both capital and
noncapital cases where the evil caused by a Sixth Amendment
violation is limited to the erroneous admission of particular evidence
at trial. In Milton v. Wainwright, 407 U.S. 371, 92 S. Ct. 2174
(1972), for example, the Court held the admission of a confession
obtained in violation of Massiah v. United States, 377 U.S. 201, 84
S. Ct. 1199 (1964), to be harmless beyond a reasonable doubt. And
we have held that harmless error analysis applies to the admission of
identification testimony obtained in violation of the right to counsel at
a postindictment lineup. Moore v. Illinois, 434 U.S. 220, 98 S. Ct.
458 (1977); Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951 (1967)
54
Case: 12-15093 Date Filed: 04/26/2017 Page: 55 of 281
(capital case); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926
(1967). Just last year we indicated that harmless error analysis would
apply in a noncapital case to constitutional error in the use of a
psychological evaluation at trial. Buchanan v. Kentucky, 483 U.S.
402, 425, n.21, 107 S. Ct. 2906, 2919, n.21 (1987).
Id. at 257–58, 108 S. Ct. at 1798 (emphasis added) (citations reformatted).
The Sixth Amendment violation in Roy’s case did not occur merely because
counsel was late coming back from lunch. Tardiness does not violate the
Constitution. The Sixth Amendment violation occurred because a government
witness answered 18 questions in counsel’s absence. The constitutional error was
in admitting that particular evidence, those answers, without counsel being there.
And, as the Supreme Court held in Satterwhite and in five other decisions that it
cited, harmless error analysis applies “where the evil caused by a Sixth
Amendment violation is limited to the erroneous admission of particular evidence
at trial.” Id. at 257, 108 S. Ct. at 1798. It applies here. 13
13
Many state appellate courts have also concluded that the harmless error rule applies to the
temporary absence of defense counsel from the courtroom. See Jackson v. State, 983 So. 2d 562,
574–77 (Fla. 2008) (applying harmless error analysis to trial court’s decision to hear testimony
from the victim for purposes of sentencing the defendant while defense counsel was absent);
Hodges v. State, 116 S.W.3d 289, 292–94 (Tex. Ct. App. 2003) (applying harmless error analysis
to defense counsel’s absence during presentation of adverse testimony from a detective during
the penalty phase of a case); Wilson v. State, 764 So. 2d 813, 815–19 (Fla. 4th DCA 2000)
(applying harmless error analysis to defense counsel’s absence during jury deliberations and
proceedings involving a question from the jury); State v. Scherzer, 694 A.2d 196, 237–40 (N.J.
Super. Ct. App. Div. 1997) (applying harmless error analysis where defense counsel was absent
“from many pretrial proceedings; a portion of jury voir dire; several days of testimony during
trial, including the entire testimony of the State’s expert witness . . . ; parts of [the] codefendants’
and the prosecutor’s summations; a portion of the charge conference; some of the jury’s
questions during deliberations; and also the reading of the jury’s verdict”). In the Hodges
55
Case: 12-15093 Date Filed: 04/26/2017 Page: 56 of 281
5. The Dissent’s “Sole Defendant” Theory
The dissent attempts to distinguish the well-reasoned decisions in Kaid and
Sweeney on the ground that those cases grew out of trials with more than one
defendant, while Roy was the only defendant in this trial. See Dissenting Op. at
244–245. Indeed, at least five times the dissenting opinion appears to argue that
the issue is not whether Cronic error occurs when a defendant is without counsel in
the courtroom during the presentation of inculpatory evidence in any trial, but
instead the issue is whether it is Cronic error for that to happen in a single-
defendant trial. See Dissenting Op. at 220 (“no other defendants or defense
counsel present”), 243 (“in a single-defendant trial”), at 244 (“none [of the other
cases] involved a single defendant deprived of his sole counsel”), at 245–246 (“the
sole defendant” in “a single-defendant, single-counsel case”), at 258 (“in the trial
of a single defendant represented by a single lawyer”).
The reasoning of the Second Circuit in Kaid and the Eighth Circuit in
Sweeney applies regardless of the number of defendants on trial. Completely
lacking from the dissent’s attempt to distinguish Kaid and Sweeney is any
convincing explanation for why the issue should turn on whether other defendants
decision, the Texas Court of Appeals stated that it agreed with our decision in Vines that a
temporary absence of counsel during part of the trial does not necessarily infect the entire trial
and preclude application of the harmless error doctrine. Hodges, 116 S.W.3d at 294 n.7.
56
Case: 12-15093 Date Filed: 04/26/2017 Page: 57 of 281
represented by other counsel were also being tried. If a defendant’s right to counsel
is violated by his attorney’s brief absence from the courtroom during inculpatory
testimony against his client, there is no reason that it should matter if other
attorneys representing other defendants were in the courtroom at the time his
counsel was not there. The right violated is the right of each defendant to have
counsel representing him, not each defendant’s non-existent right to have counsel
representing his codefendants.
An attorney who represents a co-defendant has an ethical duty to zealously
advance the interests of that co-defendant within the bounds of the law, even where
those interests conflict with the interests of any other person who is on trial. He
ethically may, in keeping with his client’s best interests –– and in the finest
traditions of the Bar –– throw another defendant under the bus to help out his
client. An attorney has no ethical duty to look after, or care about, the interests of
anyone else regardless of whether their attorney is present. As the dissent states
elsewhere in its opinion, defense counsel is “both his client’s mouthpiece and his
client’s confidant.” Dissenting Op. at 264. An attorney for a co-defendant is not
another defendant’s mouthpiece and confidant. He is not, as the dissent seems to
believe, alternate defense counsel for any or all other co-defendants. Because the
presence or absence of other counsel for other defendants is legally and logically
57
Case: 12-15093 Date Filed: 04/26/2017 Page: 58 of 281
irrelevant to the Cronic or structural error issue, the Kaid and Sweeney decisions
are not distinguishable on that basis. 14
Because there is no principled way to limit an application of Cronic to
single-defendant trials, a holding in favor of Roy would have far-reaching effects.
As the dissenting opinion at the panel stage warned, if Roy’s position were
adopted:
Whatever measures a judge takes in response to today’s [panel]
ruling, it will be practically impossible to prevent presumptive
prejudice error in a large, multidefendant, long-running trial. See
Green v. Arn, 809 F.2d 1257, 1265 (6th Cir.) (Boggs, J., dissenting),
vacated and remanded on other grounds, 484 U.S. 806, 108 S. Ct. 52
(1987), reinstated on remand, 839 F.2d 300 (6th Cir. 1988) (“If a
reversal is mandated whenever counsel (even retained) is absent from
the courtroom for any significant period, we make such an escape a
sure ticket to a new trial. In multi-defendant cases, judges will be
required to keep a continual head count . . . lest cagey counsel be able
to invoke this new rule.”). After the judge, jury, prosecutors, defense
attorneys, and others have spent months in a complex trial and
verdicts of conviction have been returned, none of it will mean
anything for any defendant whose attorney can show that he was
absent or dozed off during any of the testimony from any of the many
witnesses against his client. That will be true even if the attorney
missed only a few of the thousands of questions and answers that
directly or indirectly inculpated his client during the long trial. It will
not matter, as the [panel] majority insists it does not matter in this
case, whether the inculpatory testimony that the attorney missed was
repeated in his (conscious) presence. And it will not matter in the
14
As we explain later, the dissent’s argument that the structural error inquiry varies
depending on whether the absence of counsel occurs in a single-defendant or multi-defendant
trial is also inconsistent with its argument that the absence of counsel is structural error because
counsel must continually scrutinize the faces and body language of witnesses and jurors. See
infra n.19.
58
Case: 12-15093 Date Filed: 04/26/2017 Page: 59 of 281
least why the attorney was absent or whether the judge noticed the
absence. That is the rule the [panel] majority adopts.
United States v. Roy, 761 F.3d 1285, 1323 (11th Cir.) (Ed Carnes, C.J.,
dissenting), reh’g en banc granted, opinion vacated, 580 F. App’x 715 (11th Cir.
2014) (citation reformatted).
Of course, even if a holding in favor of Roy could somehow be limited to
single-defendant trials, handing out automatic reversals anytime defense counsel
misses even a question or two still would not be cost-free. And the cost could be
significant, as the case of Manuel Noriega shows. He was the sole defendant in his
trial, which lasted for seven months. See United States v. Noriega, 117 F.3d 1206,
1209 (11th Cir. 1997); Boyd M. Johnson, III, Note, Executive Order 12,333: The
Permissibility of an American Assassination of a Foreign Leader, 25 Cornell Int’l
L.J. 401, 425 n.157 (1992) (stating that trial lasted for seven months); Noriega
Now Alone as Defendant, Chi. Trib., Sept. 5, 1991, 1991 WLNA 3826740. After
hearing evidence for seven months, the jury returned a verdict convicting him of
eight counts of racketeering, manufacturing and distributing cocaine, and traveling
in foreign commerce to promote an unlawful enterprise. See Noriega, 117 F.3d at
1209 n.1, 1210. The position of Roy and the dissent is that if it were later shown
that Noriega’s counsel had been out of the courtroom for seven minutes, or even
half a minute, during those seven months of trial and had missed any inculpatory
testimony at all, even if that testimony was repeated after counsel returned, the
59
Case: 12-15093 Date Filed: 04/26/2017 Page: 60 of 281
verdict would have to be set aside and the seven months of trial repeated with a
new jury, even if the government could show beyond any reasonable doubt that
counsel’s brief absence was harmless.
Unable to deal with the force of this single-defendant example on its
position, the dissent attempts to recast it as a “fearful[ ] query.” Dissenting Op. at
256. The point of the example is not that Manuel Noriega is a particularly bad
character as criminal defendants go. Nor is the point that if the defendant is a
really bad actor (such as someone like Roy who sexually molests a minor) we
should not do what the Constitution requires. Of course we should do what the
Constitution requires, but the question is what does it require and not require. The
Noriega example illustrates that if the Constitution required what the dissent insists
it does, it would lead to ludicrous results such as repeating a seven-month trial
merely because counsel for a sole defendant was out of the courtroom for one-half
minute, even though the only testimony taken while he was out was presented
again after he returned. The Constitution does not require such results, but the
dissent’s position would.
C. The Absence for a Substantial
Portion of the Trial Exception
Many of the problems encountered in determining whether to apply a
presumption of prejudice to a defense counsel’s absence from trial arise because
courts try to cram all absence-of-counsel situations into Cronic’s Procrustean bed
60
Case: 12-15093 Date Filed: 04/26/2017 Page: 61 of 281
or, to vary the metaphor, fail to heed Cardozo’s warning about “the repression of a
formula, the tyranny of tags and tickets.” Benjamin N. Cardozo, Mr. Justice
Holmes, 44 Harv. L. Rev. 682, 688 (1931). The formula capable of impeding
thought in this area is the critical stage one, and the tag or ticket slapped on the
result is the Cronic label. They are useful (and obligatory) where appropriate to
the factual situation, but they are problematic or worse if used where they do not
apply. The law does not countenance, much less require, absurdities. And it is
absurd to say that every absence of counsel during a critical stage, however
momentary and whatever the circumstances, requires that a presumption of
prejudice be applied. It is also absurd to say that the only absences that justify a
presumption of prejudice are those that extend throughout an entire critical stage,
such as a trial. We don’t have to choose either extreme on the spectrum.
When it comes to the absence of counsel from some of a trial, the rule is not
“any is all,” nor is it “all or nothing.” The Supreme Court has never held that any
absence at all of counsel from trial warrants a presumption of prejudice no matter
what, and it has never held that only if counsel is absent throughout the entire trial
should prejudice be presumed. Some of our sister circuits have avoided either
extreme and the absurdities they lead to by recognizing, at least implicitly, that the
Cronic critical stage standard is not the exclusive formula for determining whether
to presume prejudice from the absence of counsel. They have supplemented the
61
Case: 12-15093 Date Filed: 04/26/2017 Page: 62 of 281
critical stage standard with a substantial portion of the trial standard. Under that
standard, even if counsel is not absent throughout an entire critical stage, prejudice
should be presumed if he is absent for a substantial portion of the trial.
1. The Substantial Portion Exception
and the Cases from Which It Arose
The substantial portion exception has arisen out of cases in which defense
counsel fell asleep during the trial. Courts have recognized that, for Sixth
Amendment presumption of prejudice purposes, an attorney who is not consciously
present at trial because he is asleep is equivalent to an attorney who is not
physically present because he is outside the courtroom. See Burdine, 262 F.3d at
349 (“Unconscious counsel equates to no counsel at all.”); United States v.
DiTommaso, 817 F.2d 201, 216 (2d Cir. 1987) (“[S]leeping counsel is tantamount
to no counsel at all . . . .”); Javor v. United States, 724 F.2d 831, 834 (9th Cir.
1984) (“[U]nconscious or sleeping counsel is equivalent to no counsel at all.”).
None of the circuits has concluded that counsel dozing off momentarily or sleeping
through a few questions and answers is enough to presume prejudice instead of
permitting the government to show beyond a reasonable doubt that the lapse was
harmless.
Four of the five circuits that have addressed the issue presume prejudice if
counsel slept through a substantial portion of the trial. See United States v. Ragin,
820 F.3d 609, 619 (4th Cir. 2016) (“We agree with other circuits and hold that a
62
Case: 12-15093 Date Filed: 04/26/2017 Page: 63 of 281
defendant’s Sixth Amendment right to counsel is violated when that defendant’s
counsel is asleep during a substantial portion of the defendant’s trial [and that a
presumption of prejudice is required].”); Muniz v. Smith, 647 F.3d 619, 623 (6th
Cir. 2011) (joining the Ninth, Fifth, and Second Circuits that “have held that the
denial of counsel with presumed prejudice only occurs once counsel sleeps through
a ‘substantial portion of defendant’s trial’”) (brackets omitted); Burdine v.
Johnson, 262 F.3d 336, 348-49 (5th Cir. 2001) (en banc) (finding that “defense
counsel slept during substantial portions” of the trial and in those circumstances
“prejudice must be presumed”); Javor v. United States, 724 F.2d 831, 834–35 (9th
Cir. 1984) (“When a defendant’s attorney is asleep during a substantial portion of
his trial, the defendant has not received the legal assistance necessary [and
prejudice must be presumed].”).
The other one of the five circuits to address the sleeping lawyer situation, the
Second Circuit, did so in Tippins v.Walker, 77 F.3d 682, 685–87 (2d Cir. 1996).
There the court declined to use the “substantial portion” standard because it found
the word “substantial” to be “unhelpful” in determining when prejudice must be
presumed in a sleeping lawyer situation. Yet, in its place the court adopted the
closely analogous standard of “repeatedly unconscious” or “repeated and
prolonged lapses” in consciousness. Id. at 687, 689. Whether application of a
presumption of prejudice turns on counsel having slept during a substantial portion
63
Case: 12-15093 Date Filed: 04/26/2017 Page: 64 of 281
of the trial (as the Fourth, Fifth, Sixth, and Ninth Circuits phrase it) or on his
having slept repeatedly for prolonged periods of time (as the Second Circuit
phrases it), all five circuits to address the matter agree that more than a short
absence of consciousness due to sleep during trial is required for prejudice to be
presumed.
But what is a “substantial portion” of the trial for purposes of this standard?
The Fourth Circuit offered this guidance:
While we conclude that the manner in which [trial counsel]
slept in the instant case was substantial, we decline to define this term
for all cases. Whether a lawyer slept for a substantial portion of the
trial should be determined on a case-by-case basis, considering, but
not limited to, the length of time counsel slept, the proportion of the
trial missed, and the significance of the portion counsel slept through.
At the same time, however, while we decline to dictate precise
parameters for what must necessarily be a case-by-case assessment,
we caution district courts that the scope of our holding today should
not be limited to only the most egregious instances of attorney
slumber.
Ragin, 820 F.3d at 622 n.11 (emphasis added). The three non-exclusive factors
listed — length of time missed, proportion of trial missed, and significance of the
missed portion — are all important.
We add to the Fourth Circuit’s non-exclusive list of factors for determining
whether what counsel missed was a substantial portion of the trial another factor at
least as important as those it set out: whether the specific part of the trial that
counsel missed is known or can be determined. Do we know what testimony he
64
Case: 12-15093 Date Filed: 04/26/2017 Page: 65 of 281
did not hear because he was asleep or outside the courtroom? This factor should
bear heavily on whether to presume prejudice or give the government an
opportunity to show beyond a reasonable doubt the lack of it, because in
determining if the defense was prejudiced because of something counsel missed, it
helps a lot to know what counsel missed. The Ninth Circuit in Javor noted the
difficulty in determining prejudice with “a record which lacked any indication of
when Javor’s attorney was alert and when he was sleeping.” 724 F.3d at 833; see
also Tippins, 77 F.3d at 686 (“[I]f counsel sleeps, the ordinary analytical tools for
identifying prejudice are unavailable. The errors and lost opportunities may not be
visible in the record, and the reviewing court . . . may be forced to engage in
unguided speculation.”) (quotation marks omitted). To inform our analysis of what
it means to be absent for a substantial portion of the trial, we turn to the facts in
each of the sleeping lawyer cases to see how substantial, or how repeated and
prolonged, the absence of consciousness by counsel was in the four cases where
prejudice was presumed and in the one where it was not.15
15
The dissenting opinion insists that the substantial portion standard turns on a “rigid
comparison” and “mechanical focus,” one that looks only at the “minutes and seconds” that
defense counsel was consciously or physically absent from the courtroom. See Dissenting Op. at
250. Of course the amount of time counsel was out is relevant. Would the dissent rigidly and
mechanically have us ignore the length of time and treat one minute’s absence the same as one
day’s absence? Would it have us treat a few questions missed as equivalent to a few volumes of
testimony? Apparently the dissent would, because its position is that even a single inculpatory
answer in itself constitutes a critical stage and structural error –– that there are hundreds or even
65
Case: 12-15093 Date Filed: 04/26/2017 Page: 66 of 281
2. Application by Other Circuits of the
Substantial Portion of Trial Standard
We begin with the decision that gave birth to the substantial portion test. In
the Ninth Circuit’s Javor decision, defense counsel “was sleeping while testimony
pertaining to the petitioner was being adduced.” 724 F.2d at 834. He told a co-
defendant’s counsel that “he had missed some of the testimony and asked . . . if he
had missed anything related to the petitioner.” Id. (ellipses in original). Not only
that but “[t]he trial judge noted that Javor’s attorney was often ‘dozing’ and that
other attorneys ‘nudged’ and ‘kicked’ him to wake him up.” Id. Those facts
convinced the Ninth Circuit that counsel had been consciously absent during a
substantial portion of the trial and prejudice should be presumed.
We have already discussed the Fifth Circuit’s decision in the Burdine case.
See supra at 47. For present purposes, it is useful to recall that in Burdine defense
counsel slept repeatedly through “a not insubstantial portion of the 12 hour and 51
minute trial,” including during the prosecutor’s presentation of evidence against
thousands of separate critical stages in every trial. We would be the first circuit in the country to
adopt such an extreme position.
We disagree with the dissent’s position and agree with the five other circuits that have
adopted the substantial portion standard (counting the Second Circuit which has adopted a
materially identical standard). In doing so we recognize that the standard involves a case-by-
case inquiry and consideration of a number of non-exclusive factors. It is neither rigid nor
mechanical.
66
Case: 12-15093 Date Filed: 04/26/2017 Page: 67 of 281
the defendant. 262 F.3d at 338–40, 348–49. A juror testified to having seen
counsel asleep as many as 10 different times during the trial and for “a good
probably at least 10 minutes” on one occasion, and testimony showed that there
were “lots of incidents” of him sleeping while the prosecution was questioning
witnesses. Id. at 339. The deputy clerk, who was in the best position to observe
counsel, testified that he “was asleep for long periods of time during the
questioning of witnesses.” Id. The state collateral trial court found that “defense
counsel repeatedly dozed and/or actually slept during substantial portions of
Burdine’s capital murder trial so that defense counsel was, in effect, absent.” Id. at
340 (brackets omitted). On those facts the Fifth Circuit held that prejudice should
be presumed under the substantial portion standard but was careful to limit its
holding to “the egregious facts” in that case. Id. at 349.
In Ragin trial counsel did not dispute that he had slept. 820 F.3d at 622. In
fact, “counsel was asleep for much of Ragin’s trial.” Id. at 613. Throughout the
15-day trial, he slept “frequently . . . almost every day . . . morning and evening for
30 minutes at least at a time.” Id. at 621 (quotation marks and brackets omitted)
(ellipses in original). Some of the time he was seen “resting his head” as he slept.
Id. Finding “it impossible not to conclude that [he] slept and therefore was not
functioning as a lawyer during a substantial portion of the trial,” the Fourth Circuit
presumed prejudice. Id. at 622–23.
67
Case: 12-15093 Date Filed: 04/26/2017 Page: 68 of 281
In the Tippins case, the Second Circuit found that “counsel was unconscious
for numerous extended periods of time during which the defendant’s interests were
at stake.” 77 F.3d 685. He slept every day of the 12-day trial; he slept during
“two-thirds of the testimony” of the confidential informant who was a “critical”
prosecution witness; and he slept through “the majority” of the “damaging”
testimony of a co-defendant. Id. at 687–90 (brackets omitted). The court reporter
described counsel’s sleeping as “a continuous thing.” Id. at 688. More than one
witness actually heard him snoring. Id. at 688–89. It was on those extreme facts
that the Second Circuit found that defense counsel had not merely been inattentive
but had suffered repeated and prolonged lapses of consciousness because he slept
through much of the trial, justifying a presumption of prejudice. Id. at 687–90.
The attorney in the Muniz case “was asleep for an undetermined portion of a
single cross-examination,” although it was the cross-examination of his own client.
647 F.3d at 624. The “total cross-examination was fairly short, spanning only 26
pages of trial transcript” and “he objected near the end of [it],” leading the Sixth
Circuit to conclude that “Muniz’s lawyer therefore must have only been asleep for
a brief period.” Id. Distinguishing cases like Tippins where counsel had slept for
substantial portions of the trial, the court held that a presumption of prejudice
should not apply in that case. Id.
3. The Relationship of the Cronic Exception
and the Substantial Portion of Trial Exception
68
Case: 12-15093 Date Filed: 04/26/2017 Page: 69 of 281
When counsel is not consciously present — either because he is asleep or
physically absent –– throughout an entire discrete, critical stage of a criminal
proceeding, Cronic requires that prejudice be presumed. And as we have already
explained, see supra at 27–32, a critical stage is either a self-contained proceeding
or a discrete and separately identifiable piece of one. See, e.g., Iowa v. Tovar, 541
U.S. 77, 87, 124 S. Ct. 1379, 1387 (2004) (plea hearing); Gardner, 430 U.S. at 358,
97 S. Ct. at 1204–05 (sentence hearing); Gilbert, 388 U.S. at 272–74, 87 S. Ct. at
1956–57 (post-indictment pretrial lineup); White, 373 U.S. at 59–60, 83 S. Ct. at
1051 (preliminary hearing); Hamilton, 368 U.S. at 54, 82 S. Ct. at 158–59
(arraignment). We believe that where counsel’s absence does not extend
throughout an entire critical stage, such as the trial or all of the taking of testimony,
the more appropriate test or standard is whether counsel missed a substantial
portion of it. The sleeping lawyer cases illustrate the use of that standard, but it is
also appropriate for physical absences during part of a trial. As at least three
circuits have noted, for Sixth Amendment presumption of prejudice purposes cases
involving sleeping and physically absent counsel should be subject to the same
standard for determining whether to presume prejudice or allow the government an
opportunity to show the lack of it beyond a reasonable doubt. See Burdine, 262
F.3d at 349; DiTommaso, 817 F.2d at 216; Javor, 724 F.2d at 834. We agree.
69
Case: 12-15093 Date Filed: 04/26/2017 Page: 70 of 281
Our conclusion that the absence of an attorney from the courtroom for an
insubstantial portion of the trial does not justify a presumption of prejudice under
the Cronic critical stage exception to the harmless error rule and that the substantial
portion of trial standard is the appropriate one for those circumstances is not
inconsistent with any Supreme Court decision. The Court has never held that the
testimony of one or some witnesses is a critical stage for Cronic purposes, much
less that a small part of the testimony of a single witness is. And the Court has
never held that prejudice should be presumed if defense counsel is absent from the
courtroom for an insubstantial portion of trial or that it should not be presumed if
counsel is absent for a substantial portion of the trial. The Supreme Court has
never addressed this issue.
The substantial portion of trial standard, and the four non-exclusive factors
we have discussed for applying it, not only explains the sleeping lawyer decisions
of our sister circuits, which explicitly apply that standard, it also explains the
Russell and Olden physical absence decisions that Roy relies on. In Russell,
counsel was absent for two days of his client’s trial for conspiracy to commit drug
trafficking and money laundering, missing the testimony of at least 18 prosecution
witnesses and the admission of “numerous exhibits,” all of which went to prove
guilt. See 205 F.3d at 769–70, 772. Obviously, counsel was absent for a
substantial portion of the trial. The Olden case involved counsel’s “excessive
70
Case: 12-15093 Date Filed: 04/26/2017 Page: 71 of 281
absence” during trial, including two days during which he missed incriminating
testimony of prosecution witnesses. See 224 F.3d at 566, 568–69. Again, that was
obviously a substantial portion of the trial. The Green case involved an absence of
at least an hour and forty minutes during which a key government witness testified,
and any determination of prejudice in that case would be complicated by the fact
that exactly what other parts of the trial counsel missed could not be determined.
809 F.2d at 1259–60, 1259 n.1. That is the fourth factor of the substantial portion
standard or test, and it weighs in favor of the court’s decision to presume prejudice
in Green.
We recognize that many of the decisions about partial absences succumb to
the tyranny of tags and tickets by putting the “Cronic error” or “critical stage” label
on their analysis and conclusions instead of, or in addition to, speaking in terms of
whether the attorney was out for a substantial portion of the trial. See, e.g., Ragin,
820 F.3d at 619–20, Burdine, 262 F.3d at 338, 341. Their analysis, however,
focuses on whether counsel was mentally or physically absent for a substantial
portion of the trial. As the Fourth Circuit has suggested, the substantial portion
determination should be made on a case-by-case basis considering, among other
factors, the length of time counsel was out, the proportion of the trial missed, and
the significance of what he missed. Ragin, 820 F.3d at 622 n.11.
71
Case: 12-15093 Date Filed: 04/26/2017 Page: 72 of 281
An additional factor to be considered is whether the reviewing court can
determine when counsel was out and what he missed. While there is usually no
way to tell exactly when a dozing lawyer was “out” during the trial, see, e.g.,
Burdine, 262 F.3d at 348 n.7, determining when and for how long counsel was
physically absent is usually less difficult. The Eighth Circuit underscored that
point in its Sweeney decision. See 766 F.3d at 861 (“The fact that the record
demonstrates precisely what [Sweeney’s counsel] missed while he was out of the
room — and the fact that his absence was so brief — allows the Court to
confidently assess whether Sweeney was harmed by [his counsel’s] absence.”)
(quoting with approval the district court) (alterations in original); see also Kaid,
502 F.3d at 44–47 (refusing to presume prejudice where court knew exactly what
counsel had missed when he returned to courtroom 20 minutes late after lunch).
This case shows that as well. We know exactly when Roy’s counsel was absent
and precisely which questions were asked and answers given during that time. See
supra at 6–7.
A final consideration that courts should keep in mind in applying the
substantial portion of the trial standard is that we are not talking about whether to
presume that there was no prejudice or harm. We are talking about whether to
presume that there was prejudice or harm, which would deny the government the
opportunity to persuade the court beyond a reasonable doubt that in light of all of
72
Case: 12-15093 Date Filed: 04/26/2017 Page: 73 of 281
the evidence in the case there was no prejudice or harm. Even without a
presumption of prejudice the defendant will be granted a new trial where there is
any reasonable doubt about his having been prejudiced or harmed. 16
4. Application of the Substantial Portion
Standard to the Facts of this Case
As we have pointed out far more than once, Roy’s counsel missed only
seven minutes of a trial that lasted 1,884 minutes or 31.4 hours (not counting
recesses and jury deliberations), which is less than one-half of one percent of trial
time. He missed only 18 answers that were given by one of the government’s 13
witnesses who collectively gave a total of approximately 2,745 answers, meaning
he missed less than one percent of the total. And we know exactly which questions
and answers he missed. His physical absence was far more momentary and far less
substantial than any in the five cases that our sister circuits have decided under the
substantial portion standard. We have no trouble concluding that Roy’s counsel
did not miss a substantial portion of the trial.
16
The dissent does not face up to this important point, insisting that we are concluding “that
directly inculpatory evidence introduced against a defendant in a single-defendant, single-
counsel case while defense counsel is absent constitutes harmless trial error.” See Dissenting
Op. at 245 (emphasis omitted). That is not the issue and it is not what we are holding. What we
are holding is that the constitutional violation, like virtually all constitutional violations, is
subject to analysis under the harmless error rule. It will lead to reversal unless the government
carries its burden of proving that, when measured in light of all the evidence in the case, the
violation was harmless beyond a reasonable doubt.
73
Case: 12-15093 Date Filed: 04/26/2017 Page: 74 of 281
No presumption of prejudice is due under that exception, just as none is due
under the Cronic critical stage exception. That prejudice is not to be presumed
does not mean that there was no constitutional violation, and it does not mean there
is no possibility of the convictions being reversed. It means, instead, that the
harmless error rule applies, and his convictions should be reversed unless the
government has carried its burden of showing the error was harmless beyond a
reasonable doubt. Which it has. See infra Part VI.
D. Roy’s Speculation Arguments and the
Breadth of the Harmless Error Rule
Roy argues that the harmless error rule cannot apply because we cannot be
certain whether a brief absence of counsel during trial affected the verdict and
courts should never speculate about such things. The most that can be said for that
argument is that it is couched in good grammar and sensible syntax, but it is
unpinned from precedent and loose from logic.
To begin with, almost every determination about whether a deficiency, error,
or defect in counsel’s representation or some other aspect of the trial was
prejudicial or harmless requires “speculation” in the sense that Roy is using the
word. He is using that word to mean “deciding without knowing for certain.”
Consider what the Supreme Court said about that in the Sears capital case.
Defense counsel had found and presented some mitigating circumstance evidence
but not all that he could and should have. See Sears v. Upton, 561 U.S. 945, 945–
74
Case: 12-15093 Date Filed: 04/26/2017 Page: 75 of 281
46, 130 S. Ct. 3259, 3261 (2010). Some of the mitigating circumstance evidence
that counsel did not find and present might have had an adverse effect or it might
have had a net beneficial effect for the defense. See id. at 947–51, 130 S. Ct. at
3261–64. The state collateral court rejected Sears’ ineffective assistance claim
because he had failed to prove prejudice. Id. at 952, 130 S. Ct. at 3264–65.
In explaining its holding in that case, the state court said that “it is
impossible to know what effect a different mitigation theory would have had on the
jury.” Id. at 952, 130 S. Ct. at 3264 (alterations omitted). Its thinking was that a
court could only speculate about prejudice and speculation was not good enough so
why try. See id. at 946, 130 S. Ct. at 3261. Reversing the state court, the Supreme
Court emphatically rejected the notion that it requires too much speculation to
determine whether different evidence or a different theory would have affected a
jury’s decision in a given case. The Court explained that assessing whether the
prejudice prong of an ineffective assistance of counsel claim has been met, whether
there is a reasonable probability of a different result but for the error, “will
necessarily require a court to ‘speculate’” about the effect of the deficiency or
error. Id. at 956, 130 S. Ct. at 3266. But speculation in that broad sense, which
equates with the lack of certainty, is not impermissible; it is inevitable, the Court
noted. See id.
75
Case: 12-15093 Date Filed: 04/26/2017 Page: 76 of 281
It would be nice if there were a software program into which a trial record
could be scanned, an error could be input into the program, and the result would
pop up on screen as: “prejudicial” or “harmless.” That is not, however, the nature
of the enterprise. Prejudice inquiries require the exercise of a court’s best
judgment. All prejudice or harmlessness determinations require some measure of
estimation or of what the Supreme Court in Sears described as permissible
“speculation.” Every work day all across the country courts decide cases by
determining, to the best of their abilities, whether something that defense counsel
did, or did not do, prejudiced or harmed the defendant by adversely affecting the
result of the trial. If that is speculation, then speculation is rampant in the nation’s
courts.
We will not do what the Supreme Court reversed the state court for doing in
Sears and what Roy would have us do in this case, which is throw up our hands
and decline to make a determination about prejudice and harmlessness. See also
Sanders, 556 U.S. at 407, 129 S. Ct. at 1704–05 (“We have previously warned
against courts’ determining whether an error is harmless through the use of
mandatory presumptions and rigid rules rather than case-specific application of
judgment, based upon examination of the record.”). Certainty is illusory in human
affairs. If certainty about the lack of an error’s effect were required, virtually every
error would mandate reversal, and harmless error would be an endangered if not
76
Case: 12-15093 Date Filed: 04/26/2017 Page: 77 of 281
extinct doctrine. Yet the harmless error doctrine is alive and well. It serves vital
interests and promotes public respect for the criminal process. See Neder, 527
U.S. at 18, 119 S. Ct. at 1838; Agurs, 427 U.S. at 108, 96 S. Ct. at 2400; see also
Johnson, 520 U.S. at 470, 117 S. Ct. at 1550.
As the Supreme Court has repeatedly held, the vast majority of
constitutional errors that occur at a criminal trial, including Sixth Amendment
violations, should be examined for prejudicial effect and those errors do not require
reversal if they are harmless. And as we have mentioned, in Fulminante the Court
listed 16 of its decisions establishing this point, a list which refutes Roy’s position
16 times over:
Since this Court’s landmark decision in Chapman v. California,
386 U.S. 18, 87 S. Ct. 824 (1967), in which we adopted the general
rule that a constitutional error does not automatically require reversal
of a conviction, the Court has applied harmless-error analysis to a
wide range of errors and has recognized that most constitutional errors
can be harmless. See, e.g., Clemons v. Mississippi, 494 U.S. 738,
752–54, 110 S. Ct. 1441, 1450–51 (1990) (unconstitutionally
overbroad jury instructions at the sentencing stage of a capital case);
Satterwhite v. Texas, 486 U.S. 249, 108 S. Ct. 1792 (1988) (admission
of evidence at the sentencing stage of a capital case in violation of the
Sixth Amendment Counsel Clause); Carella v. California, 491 U.S.
263, 266, 109 S. Ct. 2419, 2421 (1989) (jury instruction containing an
erroneous conclusive presumption); Pope v. Illinois, 481 U.S. 497,
501–04, 107 S. Ct. 1918, 1921–23 (1987) (jury instruction misstating
an element of the offense); Rose v. Clark, 478 U.S. 570, 106 S. Ct.
3101 (1986) (jury instruction containing an erroneous rebuttable
presumption); Crane v. Kentucky, 476 U.S. 683, 691, 106 S. Ct. 2142,
2147 (1986) (erroneous exclusion of defendant’s testimony regarding
the circumstances of his confession); Delaware v. Van Arsdall, 475
U.S. 673, 106 S. Ct. 1431 (1986) (restriction on a defendant’s right to
77
Case: 12-15093 Date Filed: 04/26/2017 Page: 78 of 281
cross-examine a witness for bias in violation of the Sixth Amendment
Confrontation Clause); Rushen v. Spain, 464 U.S. 114, 115–18 & n.2,
104 S. Ct. 453, 454–55 & n.2 (1983) (denial of a defendant’s right to
be present at trial); United States v. Hasting, 461 U.S. 499, 103 S. Ct.
1974 (1983) (improper comment on defendant’s silence at trial, in
violation of the Fifth Amendment Self-Incrimination Clause); Hopper
v. Evans, 456 U.S. 605, 102 S. Ct. 2049 (1982) (statute improperly
forbidding trial court’s giving a jury instruction on a lesser included
offense in a capital case in violation of the Due Process Clause);
Kentucky v. Whorton, 441 U.S. 786, 99 S. Ct. 2088 (1979) (failure to
instruct the jury on the presumption of innocence); Moore v. Illinois,
434 U.S. 220, 232, 98 S. Ct. 458, 466 (1977) (admission of
identification evidence in violation of the Sixth Amendment Counsel
Clause); Brown v. United States, 411 U.S. 223, 231–32, 93 S. Ct.
1565, 1570–71 (1973) (admission of the out-of-court statement of a
nontestifying codefendant in violation of the Sixth Amendment
Counsel Clause); Milton v. Wainwright, 407 U.S. 371, 92 S. Ct. 2174
(1972) (confession obtained in violation of Massiah v. United States,
377 U.S. 201, 84 S. Ct. 1199 (1964)); Chambers v. Maroney, 399 U.S.
42, 52–53, 90 S. Ct. 1975, 1981–82 (1970) (admission of evidence
obtained in violation of the Fourth Amendment); Coleman v.
Alabama, 399 U.S. 1, 10–11, 90 S. Ct. 1999, 2003–04 (1970) (denial
of counsel at a preliminary hearing in violation of the Sixth
Amendment Confrontation Clause).
499 U.S. at 306–07, 111 S. Ct. at 1263 (citations reformatted). There is no good
reason why those 16 types of constitutional violations, some of which involve the
right to counsel, are subject to review for harmless error but the violation in this
case should not be. No less “speculation” is required to determine whether any of
those errors were prejudicial or harmless than is required to make the same
determination about counsel’s momentary absence in this case.
This point is evident from the actual holding in Fulminante itself. The issue
was whether erroneous admission of a coerced confession in violation of the Due
78
Case: 12-15093 Date Filed: 04/26/2017 Page: 79 of 281
Process Clause is reviewable for harmless error or should be presumed prejudicial.
Id. at 284–85, 111 S. Ct. at 1251. The Supreme Court recognized that “confessions
have [a] profound impact on the jury, so much so that we may justifiably doubt its
ability to put them out of mind even if told to do so.” Id. at 296, 111 S. Ct. at 1257
(quotation marks omitted). Yet the Court still held that the constitutional error of
admitting a coerced confession is subject to harmless error review. Id. at 303, 111
S. Ct. at 1261. If the erroneous admission of a confession that may have had a
“profound impact on the jury” does not warrant a presumption of prejudice, neither
does the erroneous admission of inculpatory evidence presented during counsel’s
brief absence from the courtroom. See Satterwhite, 486 U.S. at 257, 108 S. Ct. at
1798 (observing that harmless error review is permitted “where the evil caused by
a Sixth Amendment violation is limited to the erroneous admission of particular
evidence at trial”).
E. The Lost Objections, Hampered Cross-Examination,
and Lost Impeachment Arguments
1. Lost Opportunity to Object to Testimony
Roy contends that because of counsel’s seven-minute absence from the
courtroom he lost the opportunity to object to the questions that the prosecutor
asked while he was out of the courtroom, and that we cannot know if counsel
would have objected had he been present, so prejudice must be presumed. The
simple answer to that contention is that counsel did not lose the opportunity to
79
Case: 12-15093 Date Filed: 04/26/2017 Page: 80 of 281
object to those questions. He had the opportunity to object to them when he first
heard the same questions asked again immediately after he returned to the
courtroom. Because counsel did not object to any of those questions when he had
that opportunity to object, we know that he had no objection he wanted to make to
them. That proves there was no prejudice from a lost opportunity to object, if
proof is required.
The second independently adequate reason we reject Roy’s contention is that
the most a defendant suffers from a lost opportunity to object is that an objection
that should have been made was not made. That loss does not require a
presumption of prejudice because courts are fully capable of deciding, and
regularly do decide, if an attorney’s failure to object to testimony when he might
have objected is prejudicial or is harmless. There are plenty of reported decisions
doing just that and no decisions that we could find holding that courts are unable to
measure the prejudicial effect of an objection that was not made. See, e.g., Cox v.
McNeil, 638 F.3d 1356, 1364 (11th Cir. 2011) (determining whether counsel’s
failure to object to testimony of expert witness for the prosecution was prejudicial);
Dorsey v. Chapman, 262 F.3d 1181, 1186 (11th Cir. 2001) (same); Hays v.
Alabama, 85 F.3d 1492, 1495–96 (11th Cir. 1996) (determining whether counsel’s
failure to object to the introduction of uncharged criminal offenses was
prejudicial); Jones v. Dugger, 928 F.2d 1020, 1023, 1029 (11th Cir. 1991)
80
Case: 12-15093 Date Filed: 04/26/2017 Page: 81 of 281
(determining whether counsel’s failure to object to testimony of prosecution
witness was prejudicial); Howard v. Davis, 815 F.2d 1429, 1432 (11th Cir. 1987)
(determining whether counsel’s failure to object to psychiatrist’s testimony was
prejudicial); Cape v. Francis, 741 F.2d 1287, 1300 (11th Cir. 1984) (same).
As those and many other decisions show, there is nothing unusual — or
unusually difficult — about determining whether a failure to object, or a lost
opportunity to object, to testimony was prejudicial or harmless. In this case the
inquiry is particularly easy because the same questions that were asked in
counsel’s absence were repeated in his presence after he returned to the courtroom,
and he made not one objection to any of them.
Faced with all of those decisions in which courts have gauged the prejudicial
effect, if any, of an attorney’s failure to object to testimony, the dissent laments
that: “I am not so sure that a lost opportunity to object is the same thing as the
failure to object –– or so easily quantifiable. It seems to me that a lost opportunity
to object is an altogether different problem, one that requires speculation to
resolve.” Dissenting Op. at 235 n.5. But the dissent never tells us why gauging
prejudice from a lost opportunity to object is “an altogether different problem”
from gauging prejudice from an objection that counsel had an opportunity to make
but did not. The dissent gives no explanation why the difficulty in determining if
81
Case: 12-15093 Date Filed: 04/26/2017 Page: 82 of 281
the absence of an objection was prejudicial varies depending on the reason there
was no objection. No explanation is given because none exists.
The harm, if any, caused by the absence of an objection is the same
regardless of whether the reason there was no objection is that counsel was absent,
or he was distracted, or he was just negligent. Regardless of the reason there was
no objection, the jury hears the same testimony and the effect of that testimony is
the same. When it comes to an objection that was not made, prejudice is prejudice
and harmlessness is harmlessness. The ability of courts to gauge the effect of an
objection not being made is the same regardless of why it was not made. Identical
cases, involving identical evidence that was admitted without objection, should be
treated the same regardless of the reason there was no objection, and where the
lack of an objection was harmless the judgment should not be set aside.17
2. Hampered Cross-Examination and
Lost Opportunity to Assert Defenses
17
In support of its position the dissent cites White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050
(1963). That case involved the introduction at trial of the guilty plea that the defendant had
entered during a preliminary hearing without representation of counsel. Id. at 59–60, 83 S. Ct. at
1051. The Supreme Court held that a preliminary hearing where a defendant pleads guilty is a
critical stage of a trial. Id. Roy was not completely denied counsel throughout a critical stage of
the trial, such as a preliminary hearing, and he did not enter a guilty plea while he was without
counsel. Entry of a guilty plea by the defendant is not equivalent to the absence of an objection
to testimony. Cf. Florida v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 560 (2004) (“A guilty
plea . . . is an event of signal significance in a criminal proceeding.”) (citation omitted).
82
Case: 12-15093 Date Filed: 04/26/2017 Page: 83 of 281
Roy also contends that we must presume prejudice because his counsel’s
absence during seven minutes of Deputy Longson’s testimony may have hampered
counsel’s cross-examination, or may have caused counsel not to assert some
defense, or may have prevented counsel from presenting some evidence to rebut
the testimony that came in during those seven minutes. But courts regularly assess
whether a defendant has suffered prejudice from foregone cross-examination,
foregone defenses, and foregone evidence. See, e.g., Hinton v. Alabama, 571 U.S.
___, 134 S. Ct. 1081, 1088–90 (2014) (remanding for the district court to
determine whether petitioner was prejudiced by counsel’s failure to request
additional funding in order to hire an adequate expert); Harrington v. Richter, 562
U.S. 86, 110–12, 131 S. Ct. 770, 790–92 (2011) (determining whether petitioner
was prejudiced by counsel’s failure to present expert testimony on serology,
pathology, and blood spatter patterns); Roberts v. Comm’r, Ala. Dep’t of Corr.,
677 F.3d 1086, 1090–94 (11th Cir. 2012) (determining whether defendant suffered
prejudice from his attorney’s failure to raise insanity defense); Pietri v. Fla. Dep’t
of Corr., 641 F.3d 1276, 1280–84 (11th Cir. 2011) (determining whether defendant
suffered prejudice from his attorneys’ failure to raise voluntary intoxication
defense); Jackson v. Herring, 42 F.3d 1350, 1362, 1368–69 (11th Cir. 1995)
(determining whether petitioner was prejudiced by counsel’s failure to investigate
and present mitigating evidence at sentencing).
83
Case: 12-15093 Date Filed: 04/26/2017 Page: 84 of 281
This kind of prejudice inquiry is old hat for courts. We do it often, without
protesting that it is too difficult or too much trouble. It is part of our judicial duty.
And again, it is simple to do in this case because the same questions counsel
missed were repeated after he came back into the courtroom. We know what
objections he wanted to make to those questions from the objections he made to
them when they were asked in his presence: none.
3. Lost Opportunity to Impeach
Roy also complains that because of counsel’s brief absence from the
courtroom he did not hear Deputy Longson mistakenly testify that the images of
L.B. were taken on March 10, 2005 instead of March 11, 2006. As we point out
elsewhere, the difference is immaterial because L.B. was a minor (under 18 years
of age) on both dates (she was 15 years old on the earlier date and 16 years old on
the later date). See supra at 7 n.1; infra at 111–113. And there was a mountain of
other evidence proving beyond a reasonable doubt Roy’s guilt of the charges to
which those images of L.B. related. See infra at 112–113.
Roy does not dispute that the victim was a minor regardless of which date
for that particular file is used, but instead argues that if counsel had been present
and had heard Longson’s slip up about the date, he could have used that mistake in
an attempt to impeach Longson’s testimony; and because he lost the opportunity to
impeach, prejudice should be irrebuttably presumed. The problem for Roy is that
84
Case: 12-15093 Date Filed: 04/26/2017 Page: 85 of 281
courts are fully capable of deciding, and regularly do decide, if an attorney’s
failure to impeach a prosecution witness with prior inconsistent testimony or other
evidence is prejudicial or harmless. There are legions of decisions doing just that.
See, e.g., Strickler v. Greene, 527 U.S. 263, 289–96, 119 S. Ct. 1936, 1952–55
(1999) (determining that petitioner was not prejudiced by loss of opportunity to use
withheld documents to impeach a key prosecution witness); Barwick v. Sec’y, Fla.
Dep’t of Corr., 794 F.3d 1239, 1251–53 (11th Cir. 2015) (denying habeas relief in
a capital case because the petitioner had not shown prejudice from his counsel’s
failure to use a prosecution witness’ prior inconsistent testimony in another
proceeding to impeach her); Fugate v. Head, 261 F.3d 1206, 1208, 1220 (11th Cir.
2001) (determining that petitioner had not shown prejudice from his attorney’s
failure to impeach the testimony of the sole eyewitness to the murder with his prior
inconsistent statement to police); Nixon v. Newsome, 888 F.2d 112, 116–17 (11th
Cir. 1989) (determining, after “[c]onsidering all the circumstances,” that petitioner
had been prejudiced by his counsel’s failure to impeach the key prosecution
witness with her prior inconsistent testimony); Jones v. Butler, 778 F.3d 575, 584–
86 (7th Cir. 2015) (denying habeas relief on a claim involving counsel’s failure to
impeach the testimony of a prosecution witness because “[w]e cannot say that [the
witness’] testimony would have altered the outcome even if the impeachment had
been perfected”); United States v. Travillion, 759 F.3d 281, 290–93, 299 (3d Cir.
85
Case: 12-15093 Date Filed: 04/26/2017 Page: 86 of 281
2014) (denying relief on a claim involving counsel’s failure to use a prosecution
witness’ contradictory statements from an earlier trial to impeach him because the
collective evidence against the petitioner showed he was not prejudiced by that
failure, and observing that “[t]he right to a fair trial does not translate into the right
to a perfect trial”); United States v. Orr, 636 F.3d 944, 951–54 (8th Cir. 2011)
(denying relief on a claim involving counsel’s failure to impeach a prosecution
witness with her cooperation agreement and her prior inconsistent statements
because, even though counsel could have “eroded [her] credibility in the jury’s
eyes by impeaching [her],” in view of the other evidence of guilt “there is not a
reasonable probability that [the] impeachment would have manufactured
reasonable doubt in the jurors’ minds”); Moore v. Marr, 254 F.3d 1235, 1237–38,
1240–41 (10th Cir. 2001) (denying habeas relief on claim involving “counsel’s
failure to impeach a key prosecution witness” because even if “[the witness] had
been impeached we cannot conclude that the outcome would have been different”).
All of those decisions, and more like them, foreclose Roy’s argument that
prejudice should be presumed on the theory that courts are not capable of
determining whether the failure to use a particular piece of evidence to impeach
was prejudicial or instead was harmless. Courts can and do make that
determination if a failure to impeach resulted from counsel error. Yet the dissent
worries that courts are somehow not capable of making exactly the same
86
Case: 12-15093 Date Filed: 04/26/2017 Page: 87 of 281
determination if the failure to impeach occurred because counsel was unaware of
the testimony or other evidence that could have been used to impeach. See
Dissenting Op. at 235 & n.5 (“Lost opportunities matter. . . . And further, here, it
was a lost opportunity to impeach –– the effects of which could have pervaded the
witness’s entire testimony.”).
The dissent never explains why the reason that impeachment did not occur
matters in gauging the prejudicial effect, if any, of the unused impeachment. What
we said earlier about why a failure to object does not affect a court’s ability to
gauge prejudice applies with equal force to a failure to impeach. Because the
impeachment evidence the jury does not hear is the same regardless of the reason it
does not hear that evidence, the effect of the jury not hearing that evidence is the
same. It follows that the court’s ability to gauge the effect of the jury not hearing
impeachment evidence is the same as well. What matters is the prejudicial or
harmless effect of the lack of impeachment, and all of the decisions we have just
cited establish that courts are fully capable of gauging that effect and regularly do
so.
Faced with all of those decisions, the dissent simply disagrees, insisting that
“[l]ost opportunities matter,” and are all that matter, when it comes to a failure to
impeach, and if impeachment does not occur because of a lost opportunity –– as
distinguished from an opportunity that counsel had but failed to take advantage
87
Case: 12-15093 Date Filed: 04/26/2017 Page: 88 of 281
of –– prejudice cannot be measured and must be presumed. See Dissenting Op. at
230, 234–240. The distinction the dissent would have us make has no logical
basis, which coincides with the fact that it is foreclosed by at least three decades of
binding precedent.
The Supreme Court and this Court have repeatedly held that when the
government suppresses impeachment evidence depriving the defense of the
opportunity to impeach a prosecution witness, prejudice is not to be presumed but
must be shown by the defendant. See, e.g., United States v. Bagley, 473 U.S. 667,
105 S. Ct. 3375 (1985). There is a different standard when the government
deliberately uses, or fails to correct, perjury that deprives the defendant of the
opportunity to use impeachment evidence, but even then there is no automatic
reversal and the harmless error rule applies. See Agurs, 427 U.S. at 103–04, 96
S. Ct. at 2397.
In the Bagley case the government had given the defense affidavits from its
“two principal witnesses” attesting that they had not been given any rewards or
promises of reward.18 Id. at 670, 105 S. Ct. at 3377. Even though the defense
18
Actually, as the dissenting opinion in Bagley points out, those “two principal witnesses”
were the only witnesses against the defendant on the charges for which he was convicted. 473
U.S. at 685, 105 S. Ct. at 3385 (Marshall, J., joined by Brennan, J., dissenting); see also Bagley
v. Lumpkin, 798 F.2d 1297, 1299 (9th Cir. 1986) (“At trial [those two witnesses] provided the
only testimony on the controlled substance charges.”); Bagley, 473 U.S. at 671, 105 S. Ct. at
3377 (noting that the controlled substances charges were the only ones on which the defendant
88
Case: 12-15093 Date Filed: 04/26/2017 Page: 89 of 281
asked for information about any deals, promises, or inducements, the government
did not disclose that it had signed a “Contract for Purchase of Information and
Payment of Lump Sum Therefor” with the two witnesses. Id. at 669–71, 105 S. Ct.
at 3377–78. It had promised to pay the two witnesses as “vendors” an amount
described in the contract as “a sum commensurate with services and information
provided,” and they expected to be paid and were paid. Id. at 671–72, 105 S. Ct. at
3377–78. The government’s failure to disclose that evidence to the defense
deprived it of the opportunity to impeach the two government witnesses by
showing their bias or interest. Id. at 676, 105 S. Ct. at 3380.
The Ninth Circuit set aside the conviction, holding that: “the government’s
failure to provide requested Brady information to Bagley so that he could
effectively cross-examine two important government witnesses requires an
automatic reversal.” Id. at 674, 105 S. Ct. at 3379 (quoting Bagley v. Lumpkin,
719 F.2d 1462, 1464 (9th Cir. 1983)). The Supreme Court rejected the Ninth
Circuit’s automatic reversal rule and reversed its judgment. In doing so, the Court
acknowledged that impeachment evidence is covered by the Brady rule because it
is evidence favorable to the accused that “if disclosed and used effectively . . . may
was convicted). And there was no evidence to corroborate the testimony of those two witnesses.
Lumpkin, 798 F.2d at 1299 n.1.
89
Case: 12-15093 Date Filed: 04/26/2017 Page: 90 of 281
make the difference between conviction and acquittal.” Id. at 676, 105 S. Ct. at
3380. And the Court recognized that the “possibility of a reward gave [the two
witnesses] a direct, personal stake in [Bagley’s] conviction.” Id. at 683, 105 S. Ct.
at 3384. Not only that but, as the Court pointed out, “the natural effect” of the
affidavits that the government did give the defense “would be misleadingly to
induce defense counsel to believe that [the two witnesses] provided the information
in the affidavits, and ultimately their testimony at trial recounting the same
information, without any ‘inducements.’” Id. at 684, 105 S. Ct. at 3384.
Even with all of that in the case, the Supreme Court rejected an automatic
reversal rule. It held, instead, that when the government deprives a defendant of
the opportunity to impeach a witness by a misleading failure to disclose evidence
that could have been used for that purpose, the conviction is to be set aside “only if
there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine confidence in the outcome.”
Id. at 682, 105 S. Ct. at 3383 (borrowing the Strickland prejudice standard). The
requirement of prejudice, the Court explained, is “[c]onsistent with our overriding
concern with the justice of the finding of guilt.” Id. at 678, 682, 105 S. Ct. at 3381,
3383 (quotation marks omitted).
90
Case: 12-15093 Date Filed: 04/26/2017 Page: 91 of 281
The Bagley rule is still in full force and effect. Its requirement that a
defendant who has been deprived by the government of an opportunity to impeach
a witness against him must prove prejudice in order to obtain relief has been
reiterated and applied in many decisions. See, e.g., Strickler v. Greene, 527 U.S.
263, 273–75, 289–96, 119 S. Ct. 1936, 1944–45, 1952–55 (1999) (holding that a
defendant deprived of an opportunity to impeach an eyewitness by the
government’s failure to disclose documents “that cast serious doubt” on
significant portions of her testimony was not entitled to relief, because he “had not
shown that there is a reasonable probability that his conviction or [death] sentence
would have been different had these materials been disclosed”); Banks v. Dretke,
540 U.S. 668, 691, 124 S. Ct. 1256, 1272 (2004) (reiterating and applying, in a
case involving the prosecution’s failure to disclose impeachment evidence,
Bagley’s holding that an essential component of a Brady claim is that “prejudice
must have ensued”) (quotation marks omitted); Gissendaner v. Seaboldt, 735 F.3d
1311, 1322 (11th Cir. 2013) (affirming the denial of habeas relief in a capital case
where “[t]he state habeas court reasonably found that further impeachment of [the
prosecution’s key witness] based on the undisclosed statements contained in the
prosecution team’s notes would not have created a reasonable probability of a
different result in either phase of the trial”); Boyd v. Comm’r, Ala. Dep’t of Corr.,
697 F.3d 1320, 1334–35 (11th Cir. 2012) (affirming the denial of habeas relief in a
91
Case: 12-15093 Date Filed: 04/26/2017 Page: 92 of 281
capital case where the prosecution failed to disclose “statements of co-defendants
and agreements with defense witnesses, which would have cast doubt on the
prosecution’s case while bolstering [the] defense,” because of a failure “to show ‘a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different’”) (quoting Bagley, 473 U.S. at
682, 105 S. Ct. at 3383); Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271,
1292–94 (11th Cir. 2012) (affirming the denial of habeas relief in a capital case
because it is not “reasonably probable that a different outcome would have resulted
if the government had disclosed” impeachment evidence).
There is even more precedent foreclosing the dissent’s position. The
Supreme Court has not only rejected a presumption of prejudice/automatic reversal
rule where the government deprives the defense of an opportunity to impeach by
failing to disclose evidence, it has also rejected such a rule when the government
deprives the defense of that opportunity by using perjured testimony or failing to
correct what it knows is false testimony. Even in those extreme circumstances, the
defendant is not entitled to have his conviction set aside if the government shows
that the false testimony was harmless beyond a reasonable doubt. See Agurs, 427
U.S. at 97, 103, 96 S. Ct. at 2397 (“[T]he Court has consistently held that a
conviction obtained by the knowing use of perjured testimony is fundamentally
unfair, and must be set aside if there is any reasonable likelihood that the false
92
Case: 12-15093 Date Filed: 04/26/2017 Page: 93 of 281
testimony could have affected the judgment of the jury.”) (footnotes omitted);
Bagley, 473 U.S. at 678–79, 105 S. Ct. at 3381–82 (clarifying or modifying the
Agurs standard to mean that the use of false testimony is material and requires
relief “unless failure to disclose it would be harmless beyond a reasonable doubt”)
(emphasis added).
So this is where the law is on the subject of the defense being deprived of an
opportunity to impeach a government witness, including a key witness: Even
when the loss of the opportunity to impeach results from the government’s failure
to disclose evidence, there is no automatic reversal. The conviction stands unless
the defendant can show prejudice; he must show that there is a reasonable
probability of a different result if the evidence had been disclosed. And even when
the loss of opportunity to impeach involves the government’s deliberate use of
perjured testimony or failure to correct perjured testimony, there is no automatic
reversal. The conviction still stands if the government shows that the lost
opportunity to impeach caused by its misconduct was harmless beyond a
reasonable doubt.
Given that settled law, what sense would it make to hold, as the dissent
urges, that when the defendant loses an opportunity to impeach because his
attorney was briefly out of the courtroom, reversal is automatic and the harmless
error rule does not apply? Why should relief be easier to obtain in those
93
Case: 12-15093 Date Filed: 04/26/2017 Page: 94 of 281
circumstances, which are not the fault of the government, than when the loss of
opportunity to impeach involves the government’s deliberate use of false
testimony, which is “prosecutorial misconduct and, more importantly, involves ‘a
corruption of the truth-seeking function of the trial process’”? Bagley, 473 U.S. at
680, 105 S. Ct. at 3382 (quoting Agurs, 427 U.S. at 104, 96 S. Ct. at 2397). The
answer, of course, is that it should not be easier to obtain relief when the lost
opportunity to impeach does not result from serious government misconduct than
when it does. The harmless error rule should, and does, apply in both
circumstances.
4. The Fingerprint Hypothetical
The dissent poses the hypothetical of a homicide trial in which counsel is
gone for one minute during which time a government witness testifies that the
fingerprint on the murder weapon is the defendant’s. The dissent argues that “even
if the testimony is repeated and subjected to cross-examination when defense
counsel returns, there is no way to measure how much the initial opinion
influenced the jury’s consideration of the defendant’s guilt.” Dissenting Op. at
252. “Therein,” says the dissent, “lies the problem with applying a harmless-error
analysis to an absence of counsel during the admission of inculpatory evidence.”
Id. at 253. No, not really. What actually lies within that hypothetical, or within
variations of it, is proof that the dissent’s position is wrong and that harmless error
94
Case: 12-15093 Date Filed: 04/26/2017 Page: 95 of 281
analysis can be applied to temporary absences of counsel during the admission of
inculpatory evidence.
The dissent never explains why the determination of prejudice or
harmlessness from the fingerprint evidence in that hypothetical case should be
different from exactly the same determination in cases involving exactly the same
fingerprint evidence admitted as the result of other constitutional violations. In
similar situations involving the admission of incriminating evidence brought about
by different constitutional violations, the law requires that courts gauge the
prejudicial or harmless impact of the evidence, and there is no reason for not doing
that here. The ability of courts to determine the prejudicial or harmless effect of
evidence does not depend on the nature of the error involving its admission, a point
that variations of the hypothetical will demonstrate.
Let the dissent’s hypothetical be Scenario One. Scenario Two is exactly the
same trial and evidence. Except in this scenario the testimony about the fingerprint
on the murder weapon is inadmissible but comes into evidence anyway because
defense counsel negligently fails to object even though he is present at all times. It
is beyond dispute that in those circumstances reversal is not automatic but occurs
only if the defendant can show a reasonable probability of a different result if
counsel had objected as all reasonable attorneys would have. See Strickland, 466
U.S. at 691, 694, 104 S. Ct. at 2066, 2068; see also Bates v. Sec’y, Fla. Dep’t of
95
Case: 12-15093 Date Filed: 04/26/2017 Page: 96 of 281
Corr., 768 F.3d 1278, 1300 n.9 (11th Cir. 2014) (holding that defense counsel’s
failure to object to testimony did not warrant a new trial because there was no
prejudice from admission of the testimony); Dorsey v. Chapman, 262 F.3d 1181,
1186 (11th Cir. 2001) (same). The law requires that the district court, and then we
as a reviewing court, determine whether the admission of that evidence in Scenario
Two, which is the same evidence as in the dissent’s hypothetical, was prejudicial.
We could not, as the dissent suggests we should, simply quit the task by
proclaiming that “there is no way to measure how much the [admission of the
evidence] influenced the jury’s consideration of the defendant’s guilt.” Dissenting
Op. at 252.
Scenario Three is also the same trial and evidence. Except that counsel, who
is present at all times, objects to the admission of the evidence about the fingerprint
on the murder weapon because it was obtained in violation of the Fourth
Amendment, but the judge erroneously admits the evidence when he should have
excluded it. Everyone agrees that the error in admitting evidence seized in
violation of the Fourth Amendment is subject to the harmless error rule. See
Chambers v. Maroney, 399 U.S. 42, 52–53, 90 S. Ct. 1975, 1982 (1970); see also
Whiteley v. Warden, 401 U.S. 560, 569 n.13, 91 S. Ct. 1031, 1037 n.13 (1971)
(finding Fourth Amendment violation not to have been harmless). The law
requires that the district court, and then we as a reviewing court, determine whether
96
Case: 12-15093 Date Filed: 04/26/2017 Page: 97 of 281
the admission of the fingerprint evidence, which is the same evidence as in the
dissent’s hypothetical, was harmless beyond a reasonable doubt. We could not, as
the dissent suggests we should, simply quit the task by proclaiming that “there is
no way to measure how much the [admission of the evidence] influenced the jury’s
consideration of the defendant’s guilt.” See Dissenting Op. at 252. The Supreme
Court did not do that in Chambers or Whiteley.
Scenario Four is, once again, the same trial and evidence. Except the
evidence about the fingerprint on the murder weapon is admitted because with the
government’s knowledge one of its witnesses gives false testimony that prevents
counsel, who is present at all times, from discovering a Fourth Amendment
violation that would have caused the court to exclude the evidence. The Supreme
Court has held that even such a serious error involving prosecutorial misconduct
and corruption of the truth-seeking function of the trial is nonetheless subject to the
harmless error rule. See Bagley, 473 U.S. at 678–80, 105 S. Ct. at 3381–82;
Agurs, 427 U.S. at 103–04, 96 S. Ct. at 2397. The district court, and then we as a
reviewing court, would have to determine whether the admission of the evidence
was harmless beyond a reasonable doubt. We could not, as the dissent suggests we
should, simply quit the task by proclaiming that “there is no way to measure how
much the [admission of the evidence] influenced the jury’s consideration of the
97
Case: 12-15093 Date Filed: 04/26/2017 Page: 98 of 281
defendant’s guilt.” Dissenting Op. at 252. The Supreme Court did not do that in
Bagley and Agurs.
The dissent believes that its fingerprint hypothetical shows “the problem
with applying a harmless-error analysis to an absence of counsel during the
admission of inculpatory evidence.” Id. at 253. What the fingerprint hypotheticals
actually show is why prejudice should not be presumed. The law is clear that if the
hypothetical fingerprint evidence came in because of counsel’s neglect, or because
of a Fourth Amendment violation, or because of prosecutorial misconduct, we
would not presume prejudice or automatically reverse the conviction. We would
apply the harmless error rule if evidence came in because of a Fourth Amendment
violation or because of prosecutorial misconduct, and we would require the
defendant to show prejudice if the evidence came in because of trial counsel’s
neglect. It would be anomalous to presume prejudice and not inquire into
harmlessness if exactly the same fingerprint evidence came in while counsel was
briefly outside the courtroom.
5. The Lost Opportunity to Observe Witnesses and
Constantly Monitor the Faces of Jurors Argument
The dissent takes the position that if, during the presentation of any
inculpatory testimony, defense counsel cannot observe the witness’ demeanor and
the jurors’ facial expressions, irremediable error has been committed and reversal
is automatic. See Dissenting Op. at 232–233, 238–240. The conviction must be
98
Case: 12-15093 Date Filed: 04/26/2017 Page: 99 of 281
reversed, the dissent insists, even if the testimony is repeated in counsel’s presence
because by then “the element of surprise was gone,” id. at 232–233, and counsel
did not observe the witness’ demeanor and the jurors’ faces “in the first instance.”
Id. at 238.
In support of its proposition that in order to have any hope of rendering
effective assistance an attorney must be able to observe a witness’ demeanor
throughout his testimony, the dissent cites decisions about the value of factfinders
being able to observe witness demeanor (although none of the decisions say that
the factfinder must do it continuously). Id. at 232–234 (citing Anderson v.
Bessemer City, 470 U.S. 564, 575, 105 S. Ct. 1504, 1512 (1985), Dyer v.
MacDougall, 201 F.2d 265, 268–69 (2d Cir. 1952), and United States v. Mejia, 69
F.3d 309, 315 (9th Cir. 1995)). But defense counsel is not a factfinder. He is an
advocate. Unlike jurors, or judges during bench trials, defense counsel is not
charged with the responsibility of finding the facts from the testimony presented.
Counsel’s role, instead, is to represent his client zealously within the bounds of the
law before, during, and after the trial regardless of what he personally believes, or
knows, the facts to be.
The dissent presents no decisional authority for its position that in order to
render effective assistance trial counsel must watch the faces (and body language?)
of jurors as testimony is presented throughout the trial. If the premises of the
99
Case: 12-15093 Date Filed: 04/26/2017 Page: 100 of 281
dissent’s position were accepted, while testimony is being taken counsel should not
look at any documents, or at his notes, or turn his head to confer with his client or
co-counsel lest he miss an opportunity to search for clues in the facial reactions
(including pupil dilation?) of the 12 jurors (plus some alternates). According to the
dissent, if counsel fails to observe the facial expressions and body language of all
of the jurors as each and every inculpatory answer is given by a prosecution
witness, “the element of surprise [is] gone and any initial reactions to the evidence
went with it.” Dissenting Op. at 233. The dissent tells us that all is lost and
permanently lost once the jurors’ fleeting facial expressions, or the lack of them,
vanish into the mists of time. We will never know what counsel might have done
in this case, the dissent conjectures, if only he had been able to divine from the
non-verbal cues of each and every juror what they all thought concerning that less
than one-half of one percent of the total trial testimony that they first heard while
counsel was out.
Which leads to a question. The testimony that the jurors heard while
counsel was not there to study their faces included the fact that six of the images
found on his client’s computer were of a young female nude and “bound to a table
by her feet with a rope” and with “an orange cloth . . . secured around her neck
with silver duct tape.” Is there really any doubt what a reasonable juror’s reaction
to the facts contained in that testimony would be? Would any reasonable counsel
100
Case: 12-15093 Date Filed: 04/26/2017 Page: 101 of 281
have to see the jurors’ faces, the first time that testimony comes from the witness
box, to know how they felt about it?
And, while we are on the subject, unlike Janus, most lawyers cannot look in
two different directions at once. How is a lawyer supposed to keep his eyes trained
on the witness giving testimony lest he miss the opportunity to gauge the witness’
credibility, and at the same time never stop watching the faces of a dozen or more
men and women in the jury box lest he miss a chance to gauge their reaction to that
testimony? Which opportunity should he lose forever? When, if ever, can he look
down at his notes, or turn his head to confer with his client or co-counsel? And
must we bar attorneys who are blind from representing clients in the courtroom?
The dissent does not say. 19
We conclude that the brief absence of counsel from the courtroom during the
testimony of Deputy Longson was not structural error, prejudice is not to be
presumed, and the harmless error rule applies. We turn now to actually applying
the harmless error rule to the facts of this case.
19
It is interesting to note that the dissent’s position that to have any hope of rendering
effective assistance counsel must constantly scrutinize the faces and body language of witnesses
and all of the jurors is inconsistent with the dissent’s position that counsel absences during
multiple defendant trials may be okay because the attorney for a co-defendant can fill in for a
defendant’s own counsel. A counsel who is out of the courtroom cannot see the faces or body
language of witnesses or jurors regardless of what some other attorney who is in the courtroom is
doing.
101
Case: 12-15093 Date Filed: 04/26/2017 Page: 102 of 281
VI. Why the Error Was Harmless
In applying the harmless error rule, as we do here, we review the
constitutional error to determine whether it was “harmless beyond a reasonable
doubt.” Chapman, 386 U.S. at 24, 87 S. Ct. at 828.
A. As to Count 1 (Attempted Child Enticement)
The brief absence of counsel from the courtroom was harmless beyond a
reasonable doubt as to Count 1 of Roy’s conviction. See id. We know that it was
because the testimony that occurred during counsel’s absence was not about the
Count 1 charge of attempted child enticement in violation of 18 U.S.C. § 2422(b).
It was, instead, solely about the Count 2–5 charges of knowingly possessing “any
visual depiction” of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B),
(b)(2).
The Count 1 charge is legally distinct from the Count 2–5 charges, having
no element in common with them. The charge in Count 1 is also factually distinct
from the others because the child pornography that is charged in Counts 2–5 was
not even discovered until Roy’s house had been searched after he had already been
arrested on the attempted child enticement charge that is in the first count. And the
only testimony taken during the seven minutes that counsel was absent was about
the Count 2–5 charges of child pornography. No testimony or other evidence
about the Count 1 attempted child enticement charge was taken during that time.
102
Case: 12-15093 Date Filed: 04/26/2017 Page: 103 of 281
All of the evidence of Roy’s guilt on Count 1 was presented while defense counsel
was present in the courtroom; he missed not one word of it.
Roy argues that the six pornographic images of L.B. that were partially
discussed for the first time during his counsel’s brief absence, all of which were
part of the evidence of his guilt under Counts 2–5, were also relevant to Count 1.
It was relevant, he says, because he asserted an entrapment defense on Count 1,
and the government argued in its closing that the images of child pornography
discovered on Roy’s various electronic devices showed his proclivity or
predisposition for having sex with underage girls. There are two independently
adequate reasons why that theory of harm is unconvincing.
The first reason is that those same six pornographic images of L.B. were
discussed more and in much greater detail after counsel returned to the courtroom.
And those six images were admitted into evidence in counsel’s presence and
without objection only after they had been discussed more thoroughly following
counsel’s return to the courtroom. Anything that the missed testimony regarding
those six images proved was also proven by the lengthier testimony about the same
six images that counsel did not miss.
The other independently adequate reason why Roy’s possibility of prejudice
through proof of proclivity theory is unconvincing is that those six images of L.B.
that were first discussed while counsel was absent were only a fraction of the total
103
Case: 12-15093 Date Filed: 04/26/2017 Page: 104 of 281
number of pornographic still and video images of L.B. and of other underage girls
discussed and introduced during the trial. In addition to those six images of L.B.,
there were at least three other pornographic images of L.B. plus numerous
pornographic video files of her, all taken when she was underage, that were found
on Roy’s desktop computer. All of those other images of L.B. were the subject of
testimony and were introduced into evidence only after Roy’s counsel returned to
the courtroom, and all of that was done without any objection. Counting the
videos, the number of pornographic images of L.B. that were discussed only while
counsel was in the courtroom far outnumbered the ones of her discussed while he
was out (and again after he returned).
Roy’s desktop computer also contained multiple pornographic images of
underage girls other than L.B. All of those pornographic images of other minors
were testified about, and admitted into evidence, only while Roy’s counsel was
present; none of them was even mentioned during the brief time he was absent. In
addition, Deputy Longson also testified in the presence of Roy’s counsel about the
dozens of pornographic images, both of L.B. and of other underage girls, that he
had found on Roy’s laptop computer and Roy’s USB thumb drive and Roy’s
backup CD-ROM discs. Every single piece of that still image and video image
evidence of Roy’s crimes was admitted while his counsel was in the courtroom.
And it was all admitted without objection. Even without any of the initial
104
Case: 12-15093 Date Filed: 04/26/2017 Page: 105 of 281
testimony about the first six images of L.B. that were mentioned during counsel’s
brief absence, the jury was presented with overwhelming and irrefutable evidence
of Roy’s sexual interest in minor girls. His proclivity was beyond dispute.
Not only that, but when the AUSA argued against Roy’s entrapment defense
at closing, she did not tell the jury to consider only the six images of L.B. on the
desktop computer that Deputy Longson had first mentioned while defense counsel
was absent. Instead, she asked the jury to consider all of Roy’s images and videos
of child pornography, including those Roy had on the three electronic devices that
were not discussed at all until counsel returned to the courtroom. She said that
Roy’s intent in traveling to the rendezvous with the fictional daughter and mother
that led to the Count 1 charge stemmed from his sexual interest in underage girls,
which could be seen from the fact that a couple of days before “he’s accessing his
[L.B.] folder on the laptop.” (Emphasis added.) The L.B. image folder on the
laptop was not mentioned while counsel was out of the courtroom. And the AUSA
argued later: “We know he’s viewing child pornography a few days before on his
laptop, ladies and gentlemen. He’s got backup CDs of child pornography. He’s
got thumb drives of child pornography. He’s got desktops of child pornography.”
(Emphasis added.) So the argument referred to child pornography on all four
electronic devices specified in Counts 2–5, including that on the three devices
105
Case: 12-15093 Date Filed: 04/26/2017 Page: 106 of 281
(laptop, CD-ROM discs, and thumb drives) that had not been mentioned while
counsel was out of the courtroom.
For all of these reasons, the brief absence of Roy’s counsel, during which the
Count 1 attempted child enticement charge was not mentioned, was harmless
beyond a reasonable doubt as to the conviction on that count.
B. As to Counts 2–5 (Possession of Child Pornography)
For two primary reasons, we know that the error in this case was also
harmless beyond a reasonable doubt as to Counts 2–5, the charges of possession of
child pornography. First, overwhelming evidence, all of which came in while
counsel was present, proved the charges against Roy that were the subject of
Deputy Longson’s testimony during counsel’s brief absence. And second, the
testimony that Deputy Longson gave during the seven minutes that Roy’s counsel
was absent was repeated after he returned to the courtroom.
1. All of the Other Evidence of Child Pornography
The first reason that we know counsel’s seven-minute absence was harmless
is that the testimony he missed concerned only some of the child pornography
featuring L.B. and none of the child pornography featuring other minors. Roy
could have, and beyond a reasonable doubt would have, been convicted of each of
the Count 2–5 possession of child pornography charges even if no image of L.B.
had ever been mentioned or indeed had ever even existed. That is because to
106
Case: 12-15093 Date Filed: 04/26/2017 Page: 107 of 281
convict him of the four child pornography possession counts, each of which
alleged that he possessed child pornography on a particular electronic storage
device, all the prosecution had to show was that he had at least one image of child
pornography on each of the four devices. See 18 U.S.C. § 2252(a)(4)(B). It
proved much more than that.
The evidence taken while Roy’s counsel was present in the courtroom
proved beyond a reasonable doubt that Roy had multiple images and videos of
child pornography on each of the four storage devices specified in Counts 2–5.
The unrefuted evidence proved that, as charged in Count 2, Roy had on his desktop
computer five separate pornographic images of minor children other than L.B. that
had been downloaded from the Internet.20 Those five images were more than
enough to prove Roy guilty beyond a reasonable doubt of the Count 2 charge. And
all of the evidence about those five pornographic images of other minors that were
on Roy’s desktop computer came in only while counsel was present in the
courtroom.
The evidence that was submitted while counsel was in the courtroom also
overwhelmingly proved that Roy possessed child pornography on his laptop
20
Roy also had three other still images and several videos taken of L.B., which were child
pornography, stored on his desktop computer, but it is at least arguable that those images were
first mentioned while Roy’s counsel was absent. We will assume as much and disregard the
other images of L.B. on the desktop, because even if we don’t count them, the pornographic
images of other children on the desktop proved that Roy was guilty of the Count 2 charge.
107
Case: 12-15093 Date Filed: 04/26/2017 Page: 108 of 281
computer (separate from his desktop computer), as charged in Count 3. On the
laptop, in addition to copies of some or all of the pornographic photos and videos
of the underage L.B., there was a folder called “Girls.” It is undisputed that the
“Girls” folder contained more than 220 images, all of which were introduced into
evidence and at least some of which were child pornography. In particular, Deputy
Longson testified about five images of child pornography from that laptop, which
were admitted into evidence from the “Girls” folder. Any one of those five
images, or any one of the other images of child pornography stored in the “Girls”
folder, or any one of the pornographic images or videos of L.B. on Roy’s laptop
computer, was enough to prove Roy guilty beyond a reasonable doubt of the Count
3 charge involving that device. And all of the evidence about the child
pornography on Roy’s laptop computer (including the evidence about the images
of L.B. on it) came in while counsel was present in the courtroom.
Count 4 charged Roy with possessing at least one depiction of child
pornography on a USB thumb drive. Along with copies of the pornographic
images and videos of the underage L.B., there were five images of child
pornography featuring minors other than L.B. that were admitted into evidence
from Roy’s USB thumb drive. Those five images alone were more than enough to
prove Roy guilty beyond a reasonable doubt of the Count 4 charge. And every bit
108
Case: 12-15093 Date Filed: 04/26/2017 Page: 109 of 281
of that evidence about the child pornography stored on Roy’s thumb drive came in
while counsel was present in the courtroom.
As to Count 5, Deputy Longson testified that the three CD-ROM discs that
were the subject of that charge “absolutely” contained child pornography,
including duplicate or backup copies of the L.B. videos and images along with
pornographic “images of . . . minors that are not” L.B. that were also on the laptop
and desktop computers. Doc. 141 at 154, 165. Those images of child pornography
were more than enough to prove Roy guilty beyond a reasonable doubt of the
Count 5 charges. And every bit of that evidence about the child pornography on
Roy’s compact discs came in while counsel was present in the courtroom.
Roy’s counsel was in the courtroom for the presentation of all of that
evidence proving Roy’s guilt of the Count 2–5 charges. He objected to none of it.
His sole comment during that testimony was to ask whether he could review
Government’s Exhibit 76, a 110-page compilation of the images from the “Girls”
folder, before it was admitted into evidence. Id. at 145. Beyond a reasonable
doubt, Roy’s counsel’s absence during seven minutes in which none of the
evidence we have recounted in this section was submitted did not harm him on the
Count 2–5 charges. It could not have.
109
Case: 12-15093 Date Filed: 04/26/2017 Page: 110 of 281
2. The Repetition of the Missed Testimony After Counsel Returned
The second, equally compelling reason that counsel’s absence was harmless
beyond a reasonable doubt on the Count 2–5 charges is that the facts covered in the
testimony that Deputy Longson gave while Roy’s counsel was out of the
courtroom were covered again soon after Roy’s counsel returned.
Longson testified in counsel’s absence about a folder called “2006-03-11”
he had found on Roy’s desktop computer. The folder was made by a user of the
computer and contained six pornographic images. See Doc. 141 at 106–07. He
testified that the photographic images had been taken with a “Kodak v530 zoom
digital camera” and that they showed a “nude white female who was bound to a
table by her feet with rope,” with her “head covered with an orange cloth which
was secured around her neck with silver duct tape.” Id. He also testified that he
had brought to court a disc containing videos of child pornography he found on
Roy’s computer and that he had made some screenshot images from those videos.
Id. at 107–08.
Then, after Roy’s counsel returned to the courtroom, Longson repeated the
testimony that he had given in counsel’s absence. He testified about those same
images again after counsel returned, and only then were they admitted into
evidence. See id. at 108 (images “were located and recovered from the desktop
computer”); id. at 109–10 (folder was stored under “user profile Alex”); id. at 110
110
Case: 12-15093 Date Filed: 04/26/2017 Page: 111 of 281
(images were located in a “file” named “2006-03-11” and showed a “white female
who is bound to a table by her feet with a . . . rope” and wearing “an orange hood
across her head with silver duct tape secured around the neck”); id. at 131 (the
camera that made the still images was a “Kodak v530 zoom digital camera”); id. at
119–21 (discussing the pornographic videos of the then-underage L.B. found on
Roy’s computer, and the still images Longson made from them).
Roy’s counsel did not object to the admission of any of those images of
child pornography. Nor did he object to any of the testimony describing their
discovery, their location, or their provenance. With a single exception discussed
below, every bit of inculpatory testimony that had been given during counsel’s
brief absence was repeated, and a lot more was added, after counsel returned. We
know that Roy was not prejudiced by counsel’s absence because the same evidence
would have come in even if those 18 questions and answers had never occurred in
his absence –– and it did come in after he returned. We know counsel would not
have made any objections to any of that testimony or evidence if he had been
present during the seven minutes immediately after the lunch break because he did
not object to the same testimony and evidence when it was repeated soon after he
returned to the courtroom. 21
21
Roy suggests that if counsel had been present to hear the 18 questions he missed, he could
have objected to some of the questions as leading. That theory of prejudice utterly fails for two
111
Case: 12-15093 Date Filed: 04/26/2017 Page: 112 of 281
To be sure, as we have mentioned, there is one immaterial difference
between Longson’s testimony while Roy’s counsel was absent and his testimony
after Roy’s counsel came back. See supra at 7 n.1. While testifying during
counsel’s absence, Longson correctly identified the date on the “2006-03-11”
folder but incorrectly stated that the images in that folder were created “on March
the 10th, 2005, at 6:49 p.m.” Doc. 141 at 107. He repeated that assertion two
answers later, reiterating that those images were “created initially by the camera”
on “March the 10th of 2005 at 6:49 p.m.” Id. After Roy’s counsel returned,
Longson correctly testified that the images had been created on March 11, 2006,
which is what the date on the folder showed. See id. at 110–11.
Longson’s mistake during counsel’s absence did not prejudice Roy. It was
immaterial because there was no dispute that L.B. was born on May 9, 1989. That
means she was under the age of 18, and therefore a minor, on March 11, 2006
(when she was 16 years old) just as she was on March 10, 2005 (when she was 15
reasons. First, any competent lawyer can rephrase leading questions, and the transcript of the
trial leaves no doubt that the AUSA in this case was competent. It also shows that on at least a
dozen occasions during the trial when an objection for leading was sustained, the AUSA
rephrased questions and succeeded in getting the testimony she wanted into evidence.
Second, when many of the same questions were asked in defense counsel’s presence after he
returned to the courtroom, they too were leading but counsel did not object. Roy cannot explain
why his counsel did not object to the leading nature of questions asked after he returned to the
courtroom but would have objected if he had been present when the same questions were asked
in the same fashion earlier.
112
Case: 12-15093 Date Filed: 04/26/2017 Page: 113 of 281
years old). See 18 U.S.C. § 2252(a)(4)(B) (prohibiting knowing possession of
visual depictions of a “minor engaging in sexually explicit conduct”); id. § 2256(1)
(defining “minor” as “any person under the age of eighteen years”). A defendant
who possesses child pornography is just as guilty of the crime if the child is 16
years old as he is if the child is 15 years old. The defining line for the crime is the
18th birthday. And, in any event, the immaterial error was corrected in Longson’s
later testimony. 22
There is one other point to be made about the harmlessness of counsel’s
absence when Deputy Longson stated that L.B. was 15 when the pornographic
images of her in the “2006-03-11” folder were taken. The jury not only would
have convicted Roy regardless of whether it believed L.B. was 16 or 15 when
those particular pornographic images of her were taken, it also could and would
have convicted Roy even if it believed L.B. had been 18 or 80 when the images
were taken. If none of the images of L.B. existed, or even if L.B. herself never
existed, Roy’s guilt of the Count 2–5 charges would still have been proven by all
22
About Longson’s mistake in his initial testimony concerning the date those particular
images were created, the dissent argues that “[t]he significance of such an error is particularly
obvious” because Roy did not have any contact with L.B. until August of 2005, which was after
the date that Longson mistakenly stated in his initial testimony. See Dissenting Op. at 235. All
that fact makes “particularly obvious” is that the March 10, 2005 date that Longson initially
stated was mistaken, which is something no one disputes. But neither does anyone dispute that if
March 11, 2006 is the correct date, which the physical evidence and Longson’s later testimony
prove, Roy committed the crime with which he is charged because L.B. was still a minor on that
date and the images of her are pornographic.
113
Case: 12-15093 Date Filed: 04/26/2017 Page: 114 of 281
of the child pornography depicting children other than L.B. that was found on his
desktop computer, on his laptop computer, on his thumb drive, and on his three
backup CD-ROM discs. See supra Section VI.B.1.
C. The Problem Juror
In an attempt to get out from under the piles of evidence against him, Roy
argues that the jury’s inability to reach a verdict soon after deliberations began
establishes that the jury “did not find the evidence overwhelming,” and “may have
questioned” the government’s case. Not really.
Here is what the record shows. The jury retired to deliberate at 12:43 p.m.
on Thursday, June 14, 2012. At 6:30 p.m. that evening, the jury reported that it
was unable to reach a verdict. Roy’s counsel suggested an Allen charge. See
Allen v. United States, 164 U.S. 492, 501–02, 17 S. Ct. 154, 157 (1896). After
further discussion, though, and without an Allen charge being given, the jury
foreman reported that they would “like to recess for the night and try again in the
morning.” The court then gave the Allen charge anyway and let the jurors go
home for the night without further deliberations.
The problem the jury was having surfaced the next morning before
deliberations resumed. One of the jurors went to the courthouse early, sought out a
clerk, and complained about how the deliberations had been going. In the presence
of counsel for both sides, the judge questioned the juror. When the judge asked
114
Case: 12-15093 Date Filed: 04/26/2017 Page: 115 of 281
him if he wished to continue to deliberate, the juror said that given the way “the
verdict is being deliberate [sic] in the jury room, no sir.” When the judge asked
again, the juror stated: “Sir, I want to continue, but the way that it’s — the vulgar
way that it’s being done, foul way, whatever word you can use, that they are —
that is being used in the jury room to come to a verdict is — I think borders on
against the law.” When the judge explained to the juror that the choice was for
him to either rejoin the jury or the judge could remove him if he was unable to
continue, the juror said he wanted to consult with a lawyer. He explained that he
wanted a lawyer “to speak to, to see what rights I have as an American citizen,”
and “I need to know what my legal rights are when things happen within that jury
box that’s only known to the jurors but borders on a violation of the laws.”
After discussing it, the AUSA and Roy’s counsel agreed that they wanted
the problematic juror dismissed and both stated that they preferred to proceed with
the remaining 11 jurors instead of calling in the alternate juror and restarting
deliberations. Roy himself agreed to proceed with 11 jurors. The complaining
juror was removed from the jury, which resumed deliberations. Only 37 minutes
after the jury resumed deliberations that morning, it reached a verdict convicting
Roy of all five counts charged in the indictment.
This is not, as Roy asserts, the picture of a “deadlocked jury” wrestling with
the evidence. It is, instead, the picture of one juror who was disrupting the
115
Case: 12-15093 Date Filed: 04/26/2017 Page: 116 of 281
deliberations and whose statements and actions were troubling enough for both
sides to agree that he needed to be removed so that the jury could deliberate to a
verdict. Which is what the jury did soon after the problem juror was removed.
D. The Theory that the Jury Violated Its
Oath and Disobeyed Its Instructions
Unable to point to any realistic possibility of prejudice from trial counsel’s
brief absence, the dissent proffers an unsubstantiated hunch that the reason the jury
convicted Roy of the crimes he committed is not because of all the unrefuted
evidence against him on each and every count, even though that massive amount of
unrefuted evidence would have convinced any reasonable jury of his guilt beyond
any doubt. Instead, the dissent’s alternate world view is that the jury may have
convicted Roy only because it noticed that his counsel was a few minutes late
getting back to the courtroom after one break during one of the six days of trial and
unreasonably held that against Roy. Or, posits the dissent, the jury may have
thought that the judge noticed counsel’s absence (even though there is nothing in
the record to indicate that he did) and unreasonably held against Roy the judge’s
failure to intervene on his behalf. See Dissenting Op. at 236–240.
There is nothing to indicate that the jury noticed the absence of Roy’s
counsel. More fundamentally, there is no basis whatever for assuming that if the
jury had noticed, it would have held counsel’s one momentary absence against
Roy, treating it as evidence of his guilt. The dissent implies that, if the jury noticed
116
Case: 12-15093 Date Filed: 04/26/2017 Page: 117 of 281
that defense counsel was absent, it may have concluded that counsel thought Roy
was so guilty there was no point in him being in the courtroom, or perhaps it
somehow may have done “irreparable damage to the jury’s perspective of defense
counsel.” Id. at 236. The answer to that conjecture run wild is that there is no
reason at all to think any reasonable juror would draw any adverse inferences, and
there are plenty of reasons to believe that a reasonable juror would not.
To begin with, the jury saw that counsel vigorously defended Roy during
99.6 percent of the trial, missing only seven minutes because he was late returning
to the courtroom on one of the many breaks that occurred during the six day trial.
The jury knew that defense counsel believed in his role as Roy’s advocate because
it saw and heard him tenaciously defend Roy in his opening statement, throughout
the trial, and in his closing argument. The jury saw and heard counsel cross-
examine nine government witnesses, including the one who was on the stand when
he returned to the courtroom; counsel cross-examined that witness for 45 pages of
the transcript. The jury saw and heard counsel call his own competing expert
witness to testify on Roy’s behalf. It saw and heard counsel object to questions
asked by the prosecutor and make a vigorous closing argument. Throughout the
trial, the jury saw and heard counsel, in Cronic terms, “subject the prosecution’s
case to meaningful adversarial testing,” Cronic, 466 U.S. at 659, 104 S. Ct. at
117
Case: 12-15093 Date Filed: 04/26/2017 Page: 118 of 281
2047. The jury could not reasonably have concluded that defense counsel did not
believe in what he was doing as Roy’s advocate.
The same is true of the dissent’s conjecture that the jury or jurors may have
noticed that the judge was aware of counsel’s brief absence and somehow inferred
from the judge’s inaction that he thought Roy was guilty. Dissenting Op. at 239.
There is not one whit of support for that theory in the record. There is nothing to
indicate that the judge knew counsel was absent during those seven minutes, nor is
there anything to indicate that, if he did, the jury somehow was aware that he did.
In fact, the record shows that the jury had good reason to believe the judge did not
notice counsel’s absence when court resumed. This is what the judge had
instructed the jury when court recessed at the end of the first day of trial:
We will get started Monday at 9:00 o’clock. So if you are
unfamiliar with coming into the Fort Pierce area that time of day, I ask
that you give yourself a few extra moments and get here before 9:00
o’clock, 8:45, 8:50 or so, so we can get started on time. If we are
missing just one of us, you, me, the lawyers, we can’t get started. So
in order to keep the case on track time-wise and [as a] courtesy to
your fellow jurors, I would ask that you be here sometime before 9:00
o’clock so we can get started promptly at 9:00.
(Emphasis added.) Having been told by the judge on the first day that he would
not resume trial following a recess without the lawyers being present, the only
reasonable inference the jury could have drawn from the judge resuming the trial
without one of the attorneys being present following the lunch break on the second
day is that the judge did not realize the attorney wasn’t there.
118
Case: 12-15093 Date Filed: 04/26/2017 Page: 119 of 281
Nor is there any reason to believe, as the dissent conjectures, that if the
judge did notice counsel’s absence, and if the jury somehow knew he noticed it,
the jury would infer from the judge’s failure to act that he must have thought Roy
was guilty. If one is engaging in conjecture, it is just as likely the jury could have
inferred that the judge did not think that particular testimony required counsel’s
presence, or if it were required, the judge thought that the testimony could be
repeated in counsel’s presence, which is exactly what happened immediately after
counsel walked into the courtroom.
All of those reasons are enough to dispose of the dissent’s unsupported
theory of an illogical jury. But there is more reason to reject it. The standard oath
taken by every juror before a federal trial begins requires that the juror swear or
solemnly affirm that he or she “will well and truly try, and a true deliverance make
in, the case now on trial, and render a true verdict according to the law and the
evidence, so help you God” (emphasis added).23 The dissent’s position is that
instead of believing that the jurors adhered to their solemn oath to render their
verdict “according to the law and the evidence,” ample though the evidence was,
23
The Benchbook for United States District Court Judges states the oath as follows:
“Do each of you solemnly swear [or affirm] that you will well and truly try, and a true
deliverance make in, the case now on trial, and render a true verdict according to the law and the
evidence, so help you God?” Federal Judicial Center, Benchbook for U.S. District Court Judges
269 (6th ed. 2013), available at http://www.fjc.gov/public/pdf.nsf/lookup/Benchbook-US-
District-Judges-6TH-FJC-MAR-2013-Public.pdf/$file/Benchbook-US-District-Judges-6TH-FJC-
MAR-2013-Public.pdf.
119
Case: 12-15093 Date Filed: 04/26/2017 Page: 120 of 281
we should instead indulge the baseless assumption that the jurors disobeyed their
oath and convicted Roy because of what they may have imagined defense counsel
or the judge thought, assuming that the jurors noticed what there is nothing in the
record to indicate that they noticed.
And then there are the instructions the jury was given. After the jury was
sworn but before the trial began, the judge gave opening instructions that, among
other things, charged the jury that:
It will be your duty to find from the evidence what the facts are.
You and you alone are the judges of the facts. You will then have to
apply to those facts as the law, as the Court will give it to you, and
you must follow that law whether you will agree with it or not.
Nothing the Court may say or do during the course of the trial is
intended to indicate nor should be taken by you as an indication of
what your verdict should be.
At another place in those opening instructions, the judge reminded the jury that:
“You are to decide the case solely on the evidence presented here in the
courtroom.”
After all of the evidence was in, the court gave the jury closing instructions.
Near the beginning of those instructions, the court charged the jury that “Your
decision must be based only on the evidence presented here.” Later, the court
expounded on that:
As I said before, you must consider only the evidence that I
have admitted in the case. Evidence includes the testimony of
witnesses and the exhibits admitted. But anything the lawyers say is
120
Case: 12-15093 Date Filed: 04/26/2017 Page: 121 of 281
not evidence and isn’t binding on you. And you shouldn’t assume
from anything that I’ve said that I have any opinion about any factual
issue in this case. Except for my instructions to you on the law, you
should disregard anything I may have said during the trial in arriving
at your own decision about the facts. Your own recollection and
interpretation of the evidence is what matters.
The court also went into detail explaining to the jury how it should go about
considering the evidence and deciding what weight to give particular evidence and
which witnesses to believe. The court instructed the jury on the elements of the
crimes and charged it that the defendant could be found guilty only if those
elements were proven beyond a reasonable doubt. The instructions could not have
been clearer that: “The Government must prove guilt beyond a reasonable doubt.
If it fails to do so, you must find the Defendant not guilty.”
It is impossible to reconcile the dissent’s theory that the jury may have based
its verdict on something other than the evidence admitted at trial and the law that
the judge instructed it on with the specific and detailed instructions that the jury
was given. The theory works only if we assume the jurors violated their oaths,
disobeyed their instructions, and acted in a lawless fashion. The law is that we
cannot assume that and must instead assume exactly the contrary.
More than 30 years ago the Supreme Court explained that
the crucial assumption underlying the system of trial by jury is that
juries will follow the instructions given them by the trial judge. Were
this not so, it would be pointless for a trial court to instruct a jury, and
even more pointless for an appellate court to reverse a criminal
conviction because the jury was improperly instructed.
121
Case: 12-15093 Date Filed: 04/26/2017 Page: 122 of 281
Marshall v. Lonberger, 459 U.S. 422, 438 n.6, 103 S. Ct. 843, 853 n.6 (1983)
(quotation marks omitted). For that reason, the Supreme Court has repeatedly held
that we must presume that juries follow their instructions. See, e.g., Kansas v.
Carr, 577 U.S. __, 136 S. Ct. 633, 645 (2016) (“We presume the jury followed
these instructions . . . .”); Evans v. Michigan, 568 U.S. ___, 133 S. Ct. 1069, 1080
(2013) (“[A] jury is presumed to follow its instructions.”); Blueford v. Arkansas,
566 U.S. ___, 132 S. Ct. 2044, 2051 (2012) (same); Weeks v. Angelone, 528 U.S.
225, 234, 120 S. Ct. 727, 733 (2000) (same); Zafiro v. United States, 506 U.S. 534,
540, 113 S. Ct. 933, 939 (1993) (“[J]uries are presumed to follow their
instructions.”); CSX Transp., Inc. v. Hensley, 556 U.S. 838, 841, 129 S. Ct. 2139,
2141 (2009) (“[A]s in all cases, juries are presumed to follow the court’s
instructions.”); United States v. Olano, 507 U.S. 725, 740, 113 S. Ct. 1770, 1781
(1993) (“[We] presum[e] that jurors, conscious of the gravity of their task, attend
closely the particular language of the trial court’s instructions in a criminal case
and strive to understand, make sense of, and follow the instructions given them.”);
Richardson v. Marsh, 481 U.S. 200, 206–07, 107 S. Ct. 1702, 1707 (1987) (“This
accords with the almost invariable assumption of the law that jurors follow their
instructions, which we have applied in many varying contexts.”) (citation omitted);
Tennessee v. Street, 471 U.S. 409, 415, 105 S. Ct. 2078, 2082 (1985) (stating that
“the question is reduced to whether, in light of the competing values at stake, we
122
Case: 12-15093 Date Filed: 04/26/2017 Page: 123 of 281
may rely on the crucial assumption that the jurors followed the instructions given
them by the trial judge,” and answering that question in the affirmative) (quotation
marks omitted); Francis v. Franklin, 471 U.S. 307, 324 n.9, 105 S. Ct. 1965, 1976
n.9 (1985) (recognizing “the crucial assumption underlying our constitutional
system of trial by jury that jurors carefully follow instructions”).
We have obediently followed and repeated the Supreme Court’s direction
that we presume juries follow their instructions. United States v. Lopez, 649 F.3d
1222, 1237 (11th Cir. 2011) (“We presume that juries follow the instructions given
to them.”); United States v. Siegelman, 640 F.3d 1159, 1184 (11th Cir. 2011)
(same); United States v. Townsend, 630 F.3d 1003, 1013–14 (11th Cir. 2011)
(same); United States v. Almanzar, 634 F.3d 1214, 1223 (11th Cir. 2011) (same).
Despite the overwhelming evidence of Roy’s guilt, the dissent questions
whether the jury may have found him guilty because of inferences about counsel’s
brief absence or the court not stopping the proceedings if it noticed counsel’s
absence. See Dissenting Op. at 236–240. Those are the wrong questions. The
right question, as all of the cited decisions of the Supreme Court and this Court
establish, is this one: What was the jury instructed to base its verdict on? That is
the right question because “[t]he presumption that juries follow their instructions is
necessary to any meaningful search for the reason behind a jury verdict.” United
States v. Brown, 983 F.2d 201, 203 (11th Cir. 1993).
123
Case: 12-15093 Date Filed: 04/26/2017 Page: 124 of 281
The jury was instructed to base its verdict on the law contained in the
instructions the judge gave it and the evidence in the form of testimony and
exhibits admitted during the trial. It was instructed that what the lawyers said and
what the judge said or did was not evidence, and that it was to decide the facts
solely on the basis of the evidence presented in the courtroom. The jury was also
instructed that it could not and should not convict Roy unless the prosecution had
carried its burden of proving his guilt beyond a reasonable doubt. We can, should,
and must presume that the jury followed those instructions and convicted Roy
solely because his guilt was proven beyond a reasonable doubt by the evidence. 24
The dissent’s contrary theory also violates the principles the Supreme Court
instructed us about when it discussed how courts should go about determining
whether an error resulted in prejudice sufficient to justify setting aside a judgment:
In making the determination whether the specified errors
resulted in the required prejudice, a court should presume, absent
challenge to the judgment on grounds of evidentiary insufficiency,
that the judge or jury acted according to law. An assessment of the
likelihood of a result more favorable to the defendant must exclude
the possibility of arbitrariness, whimsy, caprice, “nullification,” and
the like. A defendant has no entitlement to the luck of a lawless
24
In one case where defense counsel slept “frequently . . . almost every day . . . morning and
evening for 30 minutes at least at a time” throughout the entire 15-day trial, the jurors discussed
during deliberations their observations of the attorney “resting his head.” Ragin, 820 F.3d at
613, 621–22. (internal marks and brackets omitted). But it was never clarified whether any juror
had held counsel’s dozing off against the defendant. Id. at 621 n.6. In any event, even if a juror
did do so in the Ragin case, that would not justify assuming that the jurors in this case violated
their oath and the instructions they were duty bound to follow.
124
Case: 12-15093 Date Filed: 04/26/2017 Page: 125 of 281
decisionmaker, even if a lawless decision cannot be reviewed. The
assessment of prejudice should proceed on the assumption that the
decisionmaker is reasonably, conscientiously, and impartially
applying the standards that govern the decision.
Strickland, 466 U.S. at 694–95, 104 S. Ct. at 2068 (emphasis added); see also
Brady v. Maryland, 373 U.S. 83, 90–91, 83 S. Ct. 1194, 1198 (1963) (rejecting “[a]
sporting theory of justice” that assumes the jury might have violated the judge’s
ruling and instructions). Following the Supreme Court’s instructions to us, we
must assume that the jury followed its instructions and oath.
E. Summary
The harmlessness analysis in this case is not difficult. The error that
occurred when the trial resumed before counsel returned from lunch was harmless
beyond a reasonable doubt because overwhelming evidence offered while counsel
was present went to and proved the charges in Counts 2–5, which were the only
counts relevant to the testimony given during counsel’s absence. And the same
questions were repeated and not objected-to after counsel returned to the
courtroom. There is no reasonable doubt that counsel’s brief absence was
harmless.
VII. 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
125
Case: 12-15093 Date Filed: 04/26/2017 Page: 126 of 281
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
126
Case: 12-15093 Date Filed: 04/26/2017 Page: 127 of 281
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.
127
Case: 12-15093 Date Filed: 04/26/2017 Page: 128 of 281
TJOFLAT, Circuit Judge, specially concurring:
The Court holds that the presentation of inculpatory testimony to the jury in
defense counsel’s absence deprived the accused of the right to the assistance of
counsel in violation of the Sixth Amendment.1 Normally, a defendant appealing
his conviction on the ground that he was deprived of a constitutional right would
tell us who caused the deprivation. He would point to, as relevant here, the trial
judge or his own attorney, since each owed him a duty not to interfere with his
right to the assistance of counsel.2
In this appeal, however, Roy points to no wrongdoer in particular. He
doesn’t blame the trial judge, because the trial judge did nothing to prevent his
attorney from being present when the prosecutor resumed his direct examination of
a witness whose testimony, defense counsel well knew, would be inculpatory.
Blaming the trial judge—“to say that the trial judge [had to] step in,” find the
attorney, and remind him of his obligation to his client and to the court, Mickens v.
Taylor, 535 U.S. 162, 179, 122 S. Ct. 1237, 1247, 152 L. Ed. 2d 291 (2002)
(Kennedy, J., concurring)—would be a major departure from precedent. It was not
the trial judge’s, but defense counsel’s, responsibility to appear in court on time.
1
The relevant portion of the Sixth Amendment, the Counsel Clause, provides, “In all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for
his defense.” U.S. Const. amend. VI.
2
I omit the prosecutor in resolving the causation issue because the direct examination of
Deputy Longson could not have resumed without the trial judge’s approval.
128
Case: 12-15093 Date Filed: 04/26/2017 Page: 129 of 281
But for defense counsel’s neglect of duty, the constitutional error the Court has
created would not have occurred.
But Roy does not put the blame on defense counsel. Defense counsel was
obligated under the Sixth Amendment as set out in Strickland v. Washington, 446
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to provide Roy with effective
professional assistance. This obligation governed defense counsel’s conduct out of
court as well as in court. In his opening brief in this appeal, Roy could have
argued that counsel breached his Sixth Amendment Strickland obligation by failing
to appear in court on time and thereby allowing inculpatory testimony to be taken
in his absence. 3 But he did not.
Roy did not present the argument for two reasons. First, the argument would
have failed because, as the Court’s opinion comprehensively illustrates, defense
3
Roy could have argued that counsel’s failure to appear in court on time constituted
ineffective assistance under Strickland’s performance standard and that but for the deficient
performance, there is a reasonable probability that the outcome of the trial would have been
different. Although we rarely entertain ineffective-assistance claims on direct appeal—because
the reason for counsel’s allegedly deficient performance has not been established factually—we
could have entertained Roy’s ineffective-assistance argument by assuming that counsel’s failure
to appear on time constituted deficient performance under Strickland and then determining from
the trial transcript whether such failure prejudiced Roy’s defense. The Court has already made
that determination, finding that what transpired in counsel’s absence was harmless beyond a
reasonable doubt.
It should be noted that, in theory, Roy could claim that his attorney’s performance
following his return to the courtroom was deficient under Strickland and that such deficiency
was outcome determinative. Roy has not presented that claim, but he could do so by moving the
District Court for relief under 28 U.S.C. § 2255. The filing of the motion would operate as a
waiver of Roy’s attorney–client privilege. Thus, Roy and his attorney would be subject to
examination under oath about counsel’s litigation strategy and how, according to Roy, counsel’s
conduct fell short of Strickland’s performance standard.
129
Case: 12-15093 Date Filed: 04/26/2017 Page: 130 of 281
counsel’s brief absence did not prejudice Roy’s defense. Second and relatedly, in
making the argument under Strickland, Roy would be identifying defense counsel
as the relevant actor responsible for allegedly violating his constitutional rights. 4
But by identifying defense counsel as the relevant constitutional actor, Roy would
thereby lose the opportunity to argue for a more-favorable standard of review
under a new rule of constitutional law.5
The Court vindicates Roy’s decision to forgo Strickland by creating a new
constitutional rule for the protection of the right to assistance of counsel. Under
this new rule, a Sixth Amendment violation occurs if “inculpatory testimony [is] . .
. taken from a government witness without the presence of at least one counsel
representing the defendant, regardless of whether the judge or the [prosecutor]
4
Both Roy and the Government agree that Strickland does not govern, but that,
nonetheless, there was a Sixth Amendment violation. The parties’ agreement, however, does not
cabin our authority to apply the correct legal standard. “When an issue or claim is properly
before the court, the court is not limited to the particular legal theories advanced by the parties,
but rather retains the independent power to identify and apply the proper construction of
governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S. Ct. 1711, 1718, 114
L. Ed. 2d 152 (1991).
5
At this point, I pause to note the various standards of review Roy’s claim could be
assessed under the majority’s approach, my approach, and the dissent’s approach. Under the
majority’s new rule, Chapman’s harmless-error standard applies: the Government bears the
burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt.
Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967). Under the
dissent’s view, Cronic should govern this claim, prejudice is presumed, and reversal would be
automatic. See United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984).
Under my view, Strickland should govern this claim, and therefore the defendant would bear the
burden of establishing both deficient performance and resulting prejudice to such an extent that
there is reasonable probability of a different result absent counsel’s errors. Strickland, 466 U.S.
at 687, 694, 104 S. Ct. at 2064, 2068.
130
Case: 12-15093 Date Filed: 04/26/2017 Page: 131 of 281
noticed that counsel was not there”6 (the “New Rule”). Ante at 18. Because the
defendant need not prove that the trial judge or defense counsel breached a Sixth
Amendment obligation owed to the defendant, the New Rule is a no-fault rule—at
least for purposes of this case. In future cases, the New Rule will operate as a fault
rule based on the trial judge’s conduct because trial judges have now been placed
on notice that in absence-of-counsel cases, as opposed to all other ineffective-
assistance cases, Strickland is no longer the governing law.
I write separately for several reasons. First, the New Rule cannot exist side
by side with Strickland. It would be nonsensical to entertain on direct appeal in
this case two arguments, one asserting that defense counsel did not breach a Sixth
Amendment obligation in causing inculpatory testimony to be taken in his absence,
and the other asserting that defense counsel breached his Sixth Amendment
obligation under Strickland in causing inculpatory testimony to be taken in his
absence. 7 The Court avoids the problem by eliminating the latter argument by
effectively removing defense counsel’s actions from the Sixth Amendment inquiry
6
The Court adds a caveat to the New Rule in language preceding what I have quoted.
The caveat is that the New Rule is violated “absent evidence of an attempt to deliberately inject
error into the record and without a waiver from the defendant.” Ante at 18. As I point out in
part III, this language will have no practical effect on the operation of the New Rule. The
defendant’s right to assistance of counsel will be infringed whenever the prosecution elicits
inculpatory testimony in defense counsel’s absence.
7
I say it is nonsensical, because even if the defendant argued that his counsel violated
Srtickland, under the New Rule, Strickland’s prejudice analysis is completely displaced by
Chapman’s harmless-error analysis.
131
Case: 12-15093 Date Filed: 04/26/2017 Page: 132 of 281
altogether. The Court does so by relying—in cursory fashion—on Vines v. United
States, 28 F.3d 1123, 1127 (11th Cir. 1994), a dubiously reasoned case that
provides, at best, a shaky foundation for the Court’s new rule. Moreover, in the
course of displacing Strickland, the Court disregards the Supreme Court’s recent
pronouncements in Woods v. Donald, 575 U.S. __, 135 S. Ct. 1372, l91 L. Ed. 2d
464 (2015), and Wright v. Van Patten, 552 U.S. 120, 128 S. Ct. 743, 169 L. Ed. 2d
583 (2008), both of which suggest the correct framework for assessing Roy’s
claim—it is a claim for ineffective assistance of counsel, and Strickland should
govern.
Second, in holding Strickland inapplicable, the Court materially alters the
scheme the Supreme Court has established to protect the right to the assistance of
counsel throughout the Eleventh Circuit. In the absence-of-counsel context,
defense counsel is no longer involved in the scheme. In the void created by
counsel’s irrelevance, the trial judge effectively assumes counsel’s obligation to
protect the defendant’s right to the assistance of counsel, such that the trial judge is
now held accountable for the harm defense counsel may have caused his client if
inculpatory testimony is taken during defense counsel’s absence.
Finally, I fear that the Court’s New Rule is not only misguided as a matter of
logic and precedent, but it will also cause much mischief when put into operation.
The New Rule changes the standard of review this Court applies by not only
132
Case: 12-15093 Date Filed: 04/26/2017 Page: 133 of 281
replacing Strickland with Chapman, but also by effectively setting aside plain-error
review when defense counsel fails to object to the introduction of inculpatory
testimony taken in his absence—notwithstanding the Court’s attempt to sidestep
that issue. Nor will the Court’s hinted-at suggestions for cabining the scope of the
New Rule be possible to implement in practice. I take each of these points in
sequence.
I.
A.
The Court’s statement “Strickland assumes the presence of counsel and is
therefore inapplicable in the absence of counsel context” is drawn verbatim from
Vines v. United States, 28 F.3d 1123, 1127 (11th Cir. 1994). The quoted statement
in Vines is followed by this statement: “Strickland is therefore inapplicable in this
case.” Id. Both statements are based on a passage in Siverson v. O’Leary, 764
F.2d 1208 (7th Cir. 1985), which Vines quotes in a footnote. The footnote reads in
its entirety:
The crucial premise on which the Strickland formula rests—that
counsel was in fact assisting the accused during the proceedings and
should be strongly presumed to have made tactical judgments . . . is
totally inapplicable when counsel was absent from the proceedings
and unavailable to make any tactical judgments whatsoever.
Vines, 28 F.3d at 1127 n.7 (quotation marks omitted) (quoting Siverson, 764 F.2d
at 1216).
133
Case: 12-15093 Date Filed: 04/26/2017 Page: 134 of 281
The Vines panel read Siverson as holding that a habeas petitioner’s
ineffective-assistance claim—based on his attorney’s absence—was not a
Strickland claim. See id. at 1127 & n.7. All that Siverson held, however, was that
the Strickland presumption, “[t]he crucial premise,” that counsel’s absence might
be considered sound trial strategy, is inapplicable. Siverson, 764 F.2d at 1216.
“[C]ounsel’s absence . . . was not a considered decision ‘based on strategy,’ but
was instead merely conduct ‘grounded in negligence.’” Id. at 1215 (citing Crisp v.
Duckworth, 743 F.2d 580, 587 (7th Cir. 1984)).
The Siverson and Vines courts reviewed the ineffective-assistance claims on
collateral attack.8 Vines, 28 F.3d at 1125; Siverson, 764 F.2d at 1210. What is
important to note in these two cases is that the allegedly deficient assistance of
counsel brought about by counsel’s absence was caused, as a factual matter, by the
trial judge and defense counsel, acting together, because the trial judge gave
defense counsel permission to be absent. When Siverson and Vines are closely
examined, we find in each that the trial judge’s conduct, though described by the
courts in considerable detail, was not examined under the Sixth Amendment as a
claim that the trial judge interfered with the petitioner’s right to the assistance of
counsel, because that claim was not made. See Vines, 28 F.3d at 1125–26;
8
The claim in Siverson was brought under 28 U.S.C. § 2254, and the claim in Vines was
brought under 28 U.S.C. § 2255. Vines, 28 F.3d at 1125; see Siverson, 764 F.2d at 1210, 1212.
134
Case: 12-15093 Date Filed: 04/26/2017 Page: 135 of 281
Siverson, 764 F.2d at 1210–12. The claim actually presented was that defense
counsel’s absence constituted ineffective assistance of counsel. Vines, 28 F.3d at
1125; Siverson, 764 F.2d at 1210.
The Siverson court judged counsel’s conduct using Strickland’s performance
standard. Siverson, 764 F.2d at 1213–15. Counsel was found to be negligent and
his performance constitutionally deficient. Nevertheless, the writ was denied.
Rather than considering the consequences of the attorney’s conduct under
Strickland’s prejudice standard, the Siverson court found the conduct harmless
under the stricter standard set forth in Chapman v. California, 386 U.S. 18, 24, 87
S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967), whereby the prosecution is required to
demonstrate that a constitutional error was harmless beyond a reasonable doubt.
Id. at 1215–18. The Vines panel, in turn, acknowledged explicitly that it had an
ineffective-assistance claim before it, but based on its reading of Siverson, held
Strickland’s prejudice analysis inapplicable to the factual scenario in question. Id.
at 1125, 1127. In doing so, the panel treated defense counsel’s conduct as
constitutionally irrelevant. What mattered was that trial testimony was taken in his
absence. The ineffective-assistance claim thus morphed into an assumption that
presenting trial testimony in defense counsel’s absence, in and of itself, violates the
135
Case: 12-15093 Date Filed: 04/26/2017 Page: 136 of 281
Sixth Amendment. The presumed violation went for naught, however, because the
Vines panel held that there was no prejudice shown. 9 Id. at 1130–31.
B.
A close examination of Siverson reveals why the Vines panel’s reliance on
Siverson was misguided. The defendant in Siverson stood trial on several counts,
including robbery and aggravated battery. Siverson, 764 F.2d at 1210. After the
trial concluded and the jury retired to consider its verdict, defense counsel left the
courtroom and went home, leaving a telephone number at which he could be
reached. Id. at 1210–11, 1212, 1214. He remained away throughout the jury’s
deliberations and the return of the verdict. Id. at 1210. During that time the
defendant was forced to represent himself along with the assistance of his mother.
See id. at 1211–12.
After the jury returned a verdict finding the defendant guilty on three counts,
the defendant appealed his convictions to the Illinois Appellate Court. Id. at 1212.
Among his assignments of error was the absence of his attorney, which, he said,
9
The Vines panel used yet another standard for assessing potential prejudice, that
announced by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123
L. Ed. 2d 353 (1993), several years after Siverson and Strickland were decided. Under Brecht, a
habeas petitioner on collateral review bears the burden of demonstrating that a constitutional
error at trial “had substantial and injurious effect or influence in determining the jury’s verdict.”
507 U.S. at 637, 113 S. Ct. at 1722 (quotation marks omitted) (quoting Kotteakos v. United
States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 1557 (1946)).
136
Case: 12-15093 Date Filed: 04/26/2017 Page: 137 of 281
constituted ineffective assistance of counsel. 10 Id. The Illinois Appellate Court
denied the claim and affirmed his convictions. 11 Id. The defendant then petitioned
the District Court for the Central District of Illinois for a writ of habeas corpus,
presenting the same ineffective-assistance claim he had raised in state court. Id.
After holding an evidentiary hearing, the District Court granted the petition,
concluding that defense counsel’s absence did not satisfy “minimum professional
standards.” Id. at 1212–13; Siverson v. O’Leary, 582 F. Supp. 506, 510 (C.D. Ill.
1984) (citation omitted), rev’d, 764 F.2d 1208.12 The State appealed the District
Court’s decision to the Seventh Circuit.
Prior to the Seventh Circuit’s resolution of the appeal in Siverson, the United
States Supreme Court decided Strickland. Accordingly, the Seventh Circuit began
its analysis by assessing defense counsel’s conduct under Strickland’s performance
10
The defendant did not, however, assign as error the trial judge’s approval of counsel’s
absence.
11
The Illinois Appellate Court denied the ineffective-assistance claim:
[C]ounsel’s presence in the later stages of the trial would not have altered the
outcome. And assuming the validity of the defendant’s other claims of
incompetence on the part of his attorney, we do not find that they, even taken
together, would have affected the outcome of the trial.
Siverson v. O’Leary, 582 F. Supp. 506, 510 (C.D. Ill. 1984) (alteration in original) (quotation
marks omitted) (quoting People v. Siverson, No. 15975, slip op. at A-3 (Ill. App. Ct. July 23,
1980)), rev’d, 764 F.2d 1208.
12
The District Court’s decision came 90 days before the Supreme Court decided
Strickland and Cronic. Applying the governing pre-Strickland case law, the District Court found
that defense counsel’s absence deprived the defendant of effective assistance of counsel at a
“vital stage of the proceedings” and could not “conclude that the presence of defense counsel
would not have affected the outcome of the case.” Id. at 511.
137
Case: 12-15093 Date Filed: 04/26/2017 Page: 138 of 281
standard. Siverson, 764 F.2d at 1213. The court determined that defense counsel’s
“complete absence during the jury deliberations and the return of the verdicts at
petitioner’s trial constituted ineffective assistance of counsel in violation of the
Sixth Amendment.” Id. at 1213–14. The court summed up its analysis of
counsel’s performance by stating that “[b]ecause the Constitution demands that
defense counsel at least provide assistance to the defendant during the critical
stages of the trial, we must conclude in this case that Siverson’s counsel ‘made
errors so serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.’” Id. at 1215 (quoting Strickland, 466 U.S. at
687, 104 S. Ct. at 2064).
Moving on to the prejudice analysis, however, the Seventh Circuit declined
to resolve the issue under the Strickland formulation. Id. at 1216–17. It also
refused to presume prejudice under Cronic. Id. It held instead
that the proper standard for determining the prejudice resulting from
the erroneous absence of Siverson’s counsel during jury deliberations
and the return of the verdict is the same standard that was applied to
similar errors prior to Strickland: whether the error was harmless
beyond a reasonable doubt under Chapman.
138
Case: 12-15093 Date Filed: 04/26/2017 Page: 139 of 281
Id. at 1217. 13 In conclusion, I think it obvious that the Vines panel misread
Siverson as holding that the Strickland performance standard is inapplicable in
judging attorney conduct “in the absence of counsel context.” Vines, 28 F.3d at
1127. Indeed, the Siverson court without a doubt applied Strickland’s performance
standard in assessing the professional reasonableness of counsel’s behavior in
leaving his client to fend for himself. Siverson, 764 F.2d at 1215. That said, I
move to a discussion of Vines.
C.
In Vines, two defendants stood trial on the counts of conspiring to possess
cocaine with intent to distribute and possession of cocaine with intent to distribute.
Vines, 28 F.3d at 1125. At some point after the trial was underway, Vines’s lawyer
informed the trial judge that he needed to leave the courtroom for the afternoon.
Id.
After discussing the matter with the attorneys, the trial judge informed the
jury that defense counsel had been excused for the afternoon, that the defendant
had waived defense counsel’s presence, and that the witness who would be
testifying in defense counsel’s absence would not be providing testimony relating
13
Siverson was decided shortly after Strickland was handed down by the Supreme Court.
It seems that the absence of counsel and the possibility of a constitutional violation influenced
the Seventh Circuit’s determination that Chapman was the appropriate standard for its prejudice
analysis, rather than Strickland. Regardless, we now, of course, use Strickland’s own standard
for evaluating prejudice to resolve ineffective-assistance claims.
139
Case: 12-15093 Date Filed: 04/26/2017 Page: 140 of 281
to the defendant. Id. at 1125–26; id. at 1132–33 (Birch, J., dissenting). Two
prosecution witnesses testified during defense counsel’s absence. Id. at 1126
(majority opinion).
The jury acquitted the defendant of the conspiracy charge, but found him
guilty of possession with intent to distribute. Id. He appealed his conviction,
including in his grounds for reversal the claim that his attorney’s absence while the
two witnesses testified constituted ineffective assistance of counsel. Id. We
affirmed his conviction without considering the ineffective-assistance claim on
direct review, deferring consideration of that claim for collateral review. Id. (citing
United States v. Casas, 897 F.2d 535 (11th Cir. 1990) (mem.)). The defendant
then asserted this claim in a motion filed under 28 U.S.C. § 2255. Id.
The motion was referred to a magistrate judge. Id. The judge declined to
hold an evidentiary hearing and recommended that motion be denied on the ground
that the defendant had waived his right to counsel, that no presumption of
prejudice was warranted, and that counsel’s absence had not prejudiced his
defense. Id. The District Court denied the motion for the reasons stated by the
magistrate judge, and the defendant appealed. Id. On appeal, this Court held,
based on Siverson, that Strickland was inapplicable because defense counsel was
not present when the testimony of the two witnesses was elicited. Id. at 1127.
140
Case: 12-15093 Date Filed: 04/26/2017 Page: 141 of 281
Though Strickland required defense counsel “to bring to bear such skill and
knowledge as will render the trial a reliable adversary testing process,” Strickland,
466 U.S. at 688, 104 S. Ct. at 2065, the Vines panel held that Strickland did not
apply, full stop. Vines, 28 F.3d at 1127. Therefore, counsel’s performance—as
opposed to counsel’s absence—could not, as a matter of law, have provided the
District Court a constitutional basis for granting the writ and setting aside the
defendant’s conviction. This was so even though, as a matter of fact, counsel
caused the testimony to be taken in his absence.14
“Having concluded that Vines’s temporary absence of counsel claim cannot
be analyzed under Strickland,” the court proceeded to resolve the appropriate
analytical framework for reviewing Vines’s claim that his Sixth Amendment right
to counsel was violated because his counsel was absent during the taking of
testimony. Id. at 1128. The court assumed, without deciding, that the defendant
had established constitutional error by showing that his trial counsel was absent
during the taking of testimony. Id.
14
In theory, the defendant could have claimed that the trial judge, in approving defense
counsel’s request and continuing the trial in his absence, interfered with his right to the
assistance of counsel in violation of the court’s obligation under the Sixth Amendment. Such a
claim would have been cognizable on direct appeal because the record evidencing the claim was
complete, so an evidentiary hearing would not be needed. But the defendant did not raise the
issue on direct appeal. The claim was therefore procedurally defaulted and, as such, would not
have been cognizable in the § 2255 proceeding he brought absent a showing of cause for the
default and resulting prejudice. See Martinez v. Ryan, 566 U.S. __, __, 132 S. Ct. 1309, 1316,
182 L. Ed. 2d 272 (2012).
141
Case: 12-15093 Date Filed: 04/26/2017 Page: 142 of 281
After concluding that defense counsel’s absence did not constitute structural
error for purposes of Cronic, id. at 1129, the court treated the violation as if it were
a trial error subject to harmless-error analysis review under Brecht,15 because it
determined that the presumed violation “may . . . be quantitatively assessed in the
context of other evidence presented in order to determine whether its admission
was harmless.” 16 Id. at 1129–30 (quotation marks omitted) (quoting Arizona v.
Fulminante, 499 U.S. 279, 307–08, 111 S. Ct. 1246, 1264, 113 L. Ed. 2d 302
(1991)).17 With that statement, the court proceeded to assess the harm defense
15
As mentioned above, on collateral attack a habeas petitioner bears the burden of
demonstrating that a constitutional error “had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht, 507 U.S. at 637, 113 S. Ct. at 1722 (quoting Kotteakos,
328 U.S. at 776, 66 S. Ct. at 1253).
16
Instead of searching the record for harmless error as the Court does here—that is,
without assuming hypothetically what counsel would have done had he been present—the Vines
panel effectively assumed that defense counsel was present while witnesses were testifying and
failed to perform as a reasonably competent lawyer would have performed under the Strickland
standard. Vines, 28 F.3d at 1130–31. Having assumed as much, the Vines panel then determined
that defense counsel’s deficient performance caused the defendant no prejudice.
17
The panel rejected the defendant’s argument that prejudice should be determined
under the “irrebuttable presumption” set forth in Cronic as follows:
In order to apply Cronic . . . , we must conclude that Vines’s claim falls under one
of the three circumstances Cronic enumerates as an exception to the Strickland
standard. Vines was not completely denied counsel. Rather, Vines’s counsel was
temporarily absent during a portion of the actual trial. Vines does not contend
that his trial counsel failed to subject the prosecution’s case to meaningful
adversarial testing. Thus, in order for Vines to be entitled to a presumption of
prejudice, we must conclude that Vines was denied counsel at a critical stage of
trial within the meaning of Cronic. . . . Where, as in this case, no evidence
directly inculpating a defendant is presented while that defendant’s counsel is
absent, we decline to hold that counsel was absent during a critical stage of trial
within the meaning of Cronic. Accordingly, we conclude that Vines’s counsel
was not absent during a critical stage of trial and Vines is therefore not entitled to
a presumption of prejudice under Cronic.
142
Case: 12-15093 Date Filed: 04/26/2017 Page: 143 of 281
counsel may have caused when, in violation of his Strickland obligation, he was
absent for a period of time during trial. The court found no harm. Id. at 1130–31.
In sum, all the Vines panel did to justify its conclusion that Strickland does
not apply “in the absence of counsel context,” id. at 1127, was cite the Siverson
passage described above Id. at 1127 & n.7. As a result, Vines could hardly be said
to have provided a solid foundation for the New Rule.
D.
The Vines panel, however, did not have the benefit of recent Supreme Court
decisions that provide the appropriate framework for assessing defense counsel’s
temporary absence at trial. But we do. Consequently, I am unable to see how the
majority’s holding squares with Wright v. Van Patten, 552 U.S. 120, 128 S. Ct.
743, 169 L. Ed. 2d 583 (2008), and Woods v. Donald, 575 U.S. __, 135 S. Ct.
1372, l91 L. Ed. 2d 464 (2015).18 Both cases involved the absence of defense
counsel during an important part of the criminal prosecution, at the plea hearing in
Van Patten and during trial in Woods. And in both cases, the Supreme Court held
that the relevant state court did not render a decision that was “contrary to, or
Vines, 28 F.3d at 1128 (footnote omitted).
18
Both Van Patten and Woods were brought and disposed of under 28 U.S.C. § 2254.
143
Case: 12-15093 Date Filed: 04/26/2017 Page: 144 of 281
involved an unreasonable application, of” Supreme Court precedent in assessing
defense counsel’s conduct under Strickland. 28 U.S.C. § 2254(d)(1).
In Van Patten, the defendant pled no contest to first-degree reckless
homicide. 552 U.S. at 121, 128 S. Ct. at 744. The defendant’s attorney was not
physically present during the plea hearing, but participated by speakerphone. Id.
After he was sentenced, the defendant moved the trial court to withdraw his no-
contest plea and vacate his conviction. See State v. Van Patten, No. 96-3036-CR,
1997 WL 277952, at *1 (Wis. Ct. App. May 28, 1997). He alleged that his “Sixth
Amendment right to counsel was violated when his attorney discussed the plea
offer with him by telephone and appeared at the hearing by telephone, resulting in
his incomplete understanding of the charges against him and the constitutional
rights he was waiving with his plea.” Id. The court denied his motion. The
defendant appealed, and the Wisconsin Court of Appeals affirmed. Assessing the
defendant’s Sixth Amendment claim under Strickland, the Wisconsin Court of
Appeals concluded that “[t]he record does not support, nor does Van Patten’s
appellate brief include, any argument that counsel's performance was deficient or
prejudicial.” Id. at *3. 19 The defendant then sought discretionary review in the
19
The Wisconsin Court of Appeals opinion contains no reference to Cronic or presumed
prejudice. I assume that the defendant cited Cronic for the first time in his initial § 2254 petition.
144
Case: 12-15093 Date Filed: 04/26/2017 Page: 145 of 281
Wisconsin Supreme Court, which was denied. State v. Van Patten, 576 N.W.2d
280 (Wis. 1997).
The defendant thereafter petitioned the District Court for the Eastern District
of Wisconsin for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
District Court, adopting the recommendation of a magistrate judge, denied the writ.
The defendant appealed. The Seventh Circuit concluded that the District Court got
it wrong. Van Patten v. Deppisch (Van Patten I), 434 F.3d 1038, 1042 (7th Cir.
2006). The court granted the writ, reasoning that the District Court should have
held that the Wisconsin Court of Appeals misapplied Supreme Court precedent by
assessing the defendant’s Sixth Amendment claim under Strickland instead of
under Cronic. Put another way, the Seventh Circuit decided that the “state
appellate court arrived at a decision contrary to the Supreme Court’s precedent
when it analyzed the case under Strickland” rather than Cronic, reasoning that
“[w]hen a defendant is denied assistance of counsel at a stage where he must assert
or lose certain rights or defenses, the error ‘pervade[s] the entire proceeding.’” Id.
at 1043 (second alteration in original) (quoting Satterwhite v. Texas, 486 U.S. 249,
256, 108 S. Ct. 1792, 1797, 100 L. Ed. 2d 284 (1988)).
145
Case: 12-15093 Date Filed: 04/26/2017 Page: 146 of 281
The Supreme Court reversed, 20 concluding that its precedent had never
clearly established that Cronic should replace Strickland in such a factual context.
Van Patten, 522 U.S. at 125–26, 128 S. Ct. at 746–47. The Court described
Cronic’s role vis-à-vis Strickland’s role in assessing ineffective-assistance claims
at the plea-hearing stage, proclaiming that “Strickland [] ordinarily applies.” Id. at
124, 128 S. Ct. at 745–46. The Court declared that Cronic applies when
“circumstances [exist] that are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified,” noting as an example the
complete denial of counsel. Id. at 124–25, 128 S. Ct. at 746 (alteration in original)
(quotation marks omitted) (quoting Cronic, 466 U.S. at 658, 104 S. Ct. at 2046).
After stating that its cases provided “no categorical answer to th[e] question”
whether a court should apply Cronic’s presumption of prejudice when defense
counsel participates in a plea hearing by speakerphone, the Court analyzed the
Wisconsin Court of Appeals’ decision in Van Patten I. Id. at 125, 128 S. Ct. at
746. The Wisconsin Court of Appeals held counsel’s performance by
speakerphone to be constitutionally effective; neither the magistrate judge, the
District Court, nor the Seventh Circuit disputed this conclusion; and the Seventh
20
The Supreme Court had previously vacated the Seventh Circuit’s opinion to reconsider
in light of a recent case. See Schmidt v. Van Patten, 549 U.S. 1163, 127 S. Ct. 1120, 166 L. Ed.
2d 888 (2007). On remand, the Seventh Circuit reinstated its earlier opinion. Van Patten v.
Endicott (Van Patten II), 489 F.3d 827, 828 (7th Cir. 2007).
146
Case: 12-15093 Date Filed: 04/26/2017 Page: 147 of 281
Circuit itself stated that “[u]nder Strickland, it seems clear Van Patten would have
no viable claim.” Id. at 125, 128 S. Ct. at 746–47 (quoting Van Patten I, 434 F.3d
at 1042). As for the decision of the Wisconsin Court of Appeals, the Supreme
Court held that “it cannot be said that the state court ‘unreasonabl[y] appli[ed]
clearly established Federal law.’” Id. at 126, 128 S. Ct. at 747 (alterations in
original) (quoting Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 654, 166 L.
Ed. 2d 482 (2006)).
The facts in Woods are closer to those in the present case than are the facts
in Van Patten. In Woods, five defendants were each charged with one count of
first-degree felony murder and two counts of armed robbery. 575 U.S. at __, 135
S. Ct. at 1375. While two of these defendants pled guilty to second-degree murder,
three defendants stood trial. Id. Pertinent to the alleged ineffective-assistance
claim on habeas review, the petitioner’s defense counsel was not present in the
courtroom when the prosecution introduced testimony and evidence concerning
phone records showing calls between cell phones belonging to the defendants. Id.
Having heard previously from defense counsel that he did not object to the
introduction of the phone records—with defense counsel announcing that “I don’t
have a dog in this race. It doesn’t affect me at all.”—the trial court allowed the
testimony and evidence to be taken in the attorney’s absence. Id. Defense counsel
returned to the courtroom approximately ten minutes later, at which point he
147
Case: 12-15093 Date Filed: 04/26/2017 Page: 148 of 281
advised the judge that he had no objection to the testimony having been taken in
his absence. Id.
The jury convicted the petitioner, and following sentencing, 21 he first
appealed his convictions to the Michigan Court of Appeals, arguing that his
attorney’s absence during a critical stage of his trial denied him his Sixth
Amendment right to effective assistance of counsel, under Cronic, with prejudice
to be presumed. People v. Donald, No. 275688, 2008 WL 1061551, at *1–2
(Mich. Ct. App. Apr. 10, 2008). The Court of Appeals disagreed, and applying
Strickland, held that “there [i]s no reasonable probability that the outcome of the
trial would have been different had counsel been present during the initial portion
of the testimony,” and thus the defendant was not deprived of his right to effective
assistance of counsel. Id. at *2.
After the Michigan Court of Appeals affirmed his convictions and the
Supreme Court of Michigan denied review of his application for leave to appeal
that judgment, the defendant sought federal habeas relief under 28 U.S.C. § 2254,
contending that the Michigan Court of Appeals misapplied Cronic. See Donald v.
Rapelje, No. 09-cv-11751, 2012 WL 6047130 (E.D. Mich. Dec. 5, 2012); People v.
Donald, No. 275688, 2008 WL 1061551, at *4 (Mich. Ct. App. Apr. 10, 2008);
21
The petitioner was sentenced to life imprisonment on the felony-murder conviction
and to concurrent prison terms of 10.5 to 20 years on the armed-robbery convictions. Woods,
575 U.S. __, 135 S. Ct. at 1375.
148
Case: 12-15093 Date Filed: 04/26/2017 Page: 149 of 281
People v. Donald, 76 N.W.2d 87 (Mich. 2008). The District Court agreed, holding
that the “[t]he Michigan Court of Appeals’ decision was contrary to existing
Supreme Court precedent with respect to Cronic.” Id. at *14. The court also held
that the Michigan Court of Appeals erred in its “unreasonable application of the
facts as to Strickland.” Id.
The Sixth Circuit affirmed. See Donald v. Rapelje, 580 F. App’x 277 (6th
Cir. 2014). It held that at the time the Michigan Court of Appeals decided the
petitioner’s Sixth Amendment claim, Supreme Court holdings clearly established
that “the complete denial of counsel during a critical stage of a judicial proceeding
mandates a presumption of prejudice.” Id. at 283–84 (quotation marks and
citations omitted). Moreover, the Sixth Circuit observed: “The absence or denial
of counsel need not be caused by the government to trigger a presumption of
prejudice under Cronic. A presumption of prejudice applies even where ‘the
constraints on counsel . . . are entirely self-imposed.’” Id. at 283 (quoting Cronic,
466 U.S. at 662 n.31, 104 S. Ct. at 2048 n.31). “[B]y applying Strickland, rather
than Cronic, the Michigan Court of Appeals ‘applie[d] a rule that contradicts the
governing law set forth in [Supreme Court] cases.’” Id. at 285 (second and third
alterations in original) (quoting Penry v. Johnson, 532 U.S. 782, 792, 121 S. Ct.
1910, 1918, 150 L. Ed. 2d 9 (2001)).
149
Case: 12-15093 Date Filed: 04/26/2017 Page: 150 of 281
On certiorari review, the Supreme Court stated that the issue was whether
the Michigan Court of Appeals’ decision to assess defense counsel’s absence,
under Strickland instead of Cronic, was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by” the Court’s
holdings. Woods, 575 U.S. at __, 135 S. Ct. at 1376 (quotation marks omitted)
(quoting 28 U.S.C. § 2254(d)(1)). The Court addressed the issue by observing,
first, that “[i]n the normal course, defendants claiming ineffective assistance of
counsel must satisfy the familiar framework of Strickland v. Washington, . . .
which requires a showing that ‘counsel’s performance was deficient’ and ‘that the
deficient performance prejudiced the defense.’” Id. at __, 135 S. Ct. at 1375
(quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). Under Cronic, however,
“courts may presume that a defendant has suffered unconstitutional prejudice if he
‘is denied counsel at a critical stage of his trial.’” Id. at __, 135 S. Ct. at 1375–76
(quoting Cronic, 466 U.S. at 659, 104 S. Ct. at 2047). A critical stage is one that
“held significant consequences for the accused.” Id. at __, 135 S. Ct. at 1376.
“According to the Sixth Circuit, these statements should have compelled the
Michigan court to hold that the phone call testimony was a ‘critical stage’ and that
counsel’s absence constituted per se ineffective assistance.” Id. The Court
disagreed. Cronic’s presumed-prejudice standard was inapplicable for three
reasons. First, “[w]ithin the contours of Cronic, a fairminded jurist could conclude
150
Case: 12-15093 Date Filed: 04/26/2017 Page: 151 of 281
that a presumption of prejudice is not warranted by counsel’s short absence during
testimony about other defendants where that testimony was irrelevant to the
defendant’s theory of the case.” Id. 135 S. Ct. at 1377–78. Second, “Cronic
applies in ‘circumstances that are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified,’” id. at __, 135 S. Ct. at
1378 (quoting Cronic, 466 U.S. at 658, 104 S. Ct. at 2046), and this was not such a
case. Third, the Michigan Court of Appeals’ decision was not “an unreasonable
application of [the Supreme Court’s] cases,” including Strickland. Id. at __, 135 S.
Ct. at 1377.
In Van Patten and Woods, like the case at hand, counsel’s absence was
entirely self-imposed. At issue before the Supreme Court in Van Patten and
Woods was not whether Strickland’s performance standard applied in determining
whether counsel’s absence was deficient, for the parties and the courts below
agreed that it did apply. Rather, the issue was whether Strickland or Cronic
provided the prejudice standard. The Court held that the state appellate courts’
applications of the Strickland prejudice standard did not involve an “unreasonable
application[] of clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1).
Although the Supreme Court was reviewing the state appellate courts’
decisions with § 2254 deference, based on its decisions in Van Patten and Woods, I
151
Case: 12-15093 Date Filed: 04/26/2017 Page: 152 of 281
cannot imagine the Court holding Strickland wholly inapplicable in the context
here. If Roy believed he had a meritorious denial-of-counsel argument, he should
have proceeded as the defendants in Van Patten and Woods did by asserting that he
was denied effective assistance of counsel because defense counsel breached his
Strickland obligation.
II.
The New Rule fundamentally alters the traditional scheme for assessing a
violation of an accused’s Sixth Amendment right to the assistance of counsel. This
Court today finds no one in particular at fault for violating Roy’s Sixth
Amendment right. As will be discussed, the upshot of this remarkable fact is that
we can no longer apply elementary doctrines like plain-error review and invited
error sensibly to this claim. Furthermore, the actor best positioned to avoid New
Rule violations will be the trial judge, and thus, the New Rule materially alters his
obligations at trial in future cases.
“[T]he right to the assistance of counsel has been understood to mean that
there can be no restrictions upon the function of counsel in defending a criminal
prosecution in accord with the traditions of the adversary factfinding process that
has been constitutionalized in the Sixth and Fourteenth Amendments.” Herring v.
New York, 422 U.S. 853, 857, 95 S. Ct. 2550, 2553, 45 L. Ed. 2d 593 (1975). “The
right to the assistance of counsel has thus been given a meaning that ensures to the
152
Case: 12-15093 Date Filed: 04/26/2017 Page: 153 of 281
defense in a criminal trial the opportunity to participate fully and fairly in the
adversary factfinding process.” Id. at 858, 95 S. Ct. at 2553. Under Herring and
before today, Roy could obtain relief from his convictions only if he established
that the trial judge or defense counsel denied his attorney that opportunity to
participate fully and fairly. 22
But Roy is not required to establish that anyone denied his attorney the
opportunity to participate fully and fairly in the factfinding process in order to
make out a Sixth Amendment violation. All he had to show was that inculpatory
testimony was taken in defense counsel’s absence—fault is irrelevant. The New
Rule is thus a no-fault rule. But that is so for the purposes of this case only. In all
future cases, the New Rule will be a fault rule. And the fault will lie with the trial
judge.
In future cases, the New Rule, in operation, will hold the trial judge
answerable for the self-imposed restriction defense counsel’s absence places on his
client’s right to the assistance of counsel. In doing that, the New Rule will distort
the scheme the Supreme Court has established for protecting the right to the
assistance of counsel and, I submit, will be beyond our ken to administer.
22
I omit from my discussion the actions of other government actors such as the
prosecutor because, even if the prosecutor had initiated questioning the witness on his own
without defense counsel present, the prosecutor could not have done so without the trial judge’s
approval.
153
Case: 12-15093 Date Filed: 04/26/2017 Page: 154 of 281
Prior to today under the circumstances presented here, a trial judge could not
be held responsible for infringing a defendant’s right to the assistance of counsel
unless the judge actually denied defense counsel “the opportunity to participate
fully and fairly” in the trial process.23 Id. Suppose that when the trial resumed in
this case and the prosecutor began examining Deputy Longson, the judge was
aware that Roy’s lawyer was not present and that his absence might constitute
ineffective assistance. Would the judge have a Sixth Amendment obligation to
stop the examination and have the lawyer summoned to the courtroom so he could
protect his client’s interests? Would allowing the examination to proceed deny
Roy’s attorney “the opportunity to participate fully and fairly in the trial process”?
Stated another way, would it deny Roy his right to the effective assistance of
counsel? Justice Kennedy suggested the answer to these questions is no in his
concurring opinion in Mickens v. Taylor.
The Sixth Amendment protects the defendant against an ineffective attorney.
. . . It would be a major departure to say that the trial judge must step in every time
defense counsel appears to be providing ineffective assistance, and indeed, there is
no precedent to support this proposition. As the Sixth Amendment guarantees the
23
Note that in Van Patten and Woods, the claims were not that the denial of the
assistance of counsel occurred at the hands of the trial judge. Rather, as the Sixth Circuit put it
in Woods, “the constraints on counsel . . . [we]re entirely self-imposed” by defense counsel.
Donald v. Rapelje, 580 F. App’x 277, 283 (6th Cir. 2014) (quoting Cronic, 466 U.S. at 662 n.31,
104 S. Ct. at 2048 n.31.
154
Case: 12-15093 Date Filed: 04/26/2017 Page: 155 of 281
defendant the assistance of counsel, the infringement of that right must depend on
a deficiency of the lawyer, not of the trial judge.
535 U.S. 162, 179, 122 S. Ct. 1237, 1247, 152 L. Ed. 2d 291 (2002)
(Kennedy, J., concurring) (citing Strickland, 466 U.S.at 685–86, 104 S. Ct. at
2063. 24
The New Rule will be “a major departure” in trials that begin once our
decision today is announced. The trial judge will be on notice that if inculpatory
testimony is presented while defense counsel is absent, a constitutional error will
have occurred. The judge will have constructively caused the error by failing to
prevent it. He could have ensured counsel’s appearance, but failed. On appeal, the
defendant will seize on this failure to argue that his conviction should be reversed.
Whether or not the defendant prevails will depend on the standard of review this
Court uses to assess the harm he suffered because inculpatory testimony was
received in his lawyer’s absence.
Traditionally, the standard for review for trial-court error on direct appeal
depends on whether the defendant called the error to the trial judge’s attention in a
24
The Court holds holds that “inculpatory testimony . . . taken from a government
witness” gives rise to a Sixth Amendment violation. I suggest that under the Court’s opinion any
evidence incriminating the defendant that is made part of the record during his attorney’s
absence would create a Sixth Amendment violation.
155
Case: 12-15093 Date Filed: 04/26/2017 Page: 156 of 281
timely objection so that the error might be avoided. If the defendant objects, the
district court overrules the objection, and we conclude that the court has erred, we
consider whether the error was harmless under Rule 52(a) of the Federal Rules of
Criminal Procedure25 or Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L.
Ed. 2d 705 (1967), for a constitutional error. If the defendant fails to object and we
conclude that the court erred, we would consider whether the error constituted
plain error under Rule 52(b).26 In these “absence of counsel” cases, I assume that
counsel would not have objected to an error that occurred during his absence and
conclude, as explained below, that that Rule 52(b) would be inapplicable and that
Chapman would provide the standard of review.
The constitutional error the New Rule creates will occur in one of two
scenarios. The first involves defense counsel’s absence without the court’s
25
See Fed. R. Crim. P. 52(a) (“Harmless Error. Any error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.”).
26
See Fed. R. Crim. P. 52(b) (“Plain Error. A plain error that affects substantial rights
may be considered even though it was not brought to the court’s attention.”); Molina-Martinez v.
United States, 578 U.S. __, __, 136 S. Ct. 1338, 1343, __ L. Ed. 2d __ (2016) (“First, there must
be an error that has not been intentionally relinquished or abandoned. Second, the error must be
plain—that is to say, clear or obvious. Third, the error must have affected the defendant’s
substantial rights, which in the ordinary case means he or she must ‘show a reasonable
probability that, but for the error,’ the outcome of the proceeding would have been different.
Once these three conditions have been met, the court of appeals should exercise its discretion to
correct the forfeited error if the error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” (alteration in original) (citations omitted) (first quoting
United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S. Ct. 2333, 2336, 159 L. Ed. 2d 157
(2004) and then quoting United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779, 123
L. Ed. 2d 508 (1993))).
156
Case: 12-15093 Date Filed: 04/26/2017 Page: 157 of 281
permission, as in this case. The second involves defense counsel’s absence with
the court’s permission, as in Vines.
In the first scenario, defense counsel fails to call the New Rule violation to
the trial judge’s attention after returning to the courtroom and discovering what
transpired during his absence. The defendant is convicted and on appeal he cites
the New Rule violation in arguing that his conviction should be reversed.
Although the error had not been preserved for appellate review, we do not review
the error under the plain-error doctrine. The error had already occurred, and the
trial judge was powerless to undo it. Hence, an objection would have served no
useful purpose; it would have been an exercise in futility. Our review of the harm
caused by the inculpatory testimony is conducted under the Chapman standard, not
the plain-error doctrine. 27
In the second scenario, instead of bringing the potential error to the trial
judge’s attention through an objection, defense counsel seeks permission for an
anticipated absence. The defendant is convicted and on appeal he cites the New
Rule in arguing that his conviction should be reversed. The Government, in
27
I note that the Government has not taken the position on appeal that the invited-error
doctrine should foreclose Roy’s claim. That is, in absenting himself, Roy’s attorney invited the
constitutional error he now asserts, the Government acknowledges, and the Court recognizes. In
my view, the Court’s opinion would not foreclose the Government from invoking the doctrine in
a case presenting the first scenario.
157
Case: 12-15093 Date Filed: 04/26/2017 Page: 158 of 281
response, argues that the invited-error doctrine forecloses the defendant’s
argument. 28 This response presents the following conundrum.
If the invited-error doctrine is held inapplicable, the defendant will have his
cake and eat it too. He will receive the benefit of the bargain he authorized his
lawyer to strike with the court; 29 at the same time, he will give the opportunity to
challenge as Sixth Amendment error the taking of inculpatory testimony during
defense counsel’s absence. Allowing the defendant to have his cake and eat it too
would run counter to both common sense and the weight of precedent. For this
reason, we would be inclined to hold the doctrine applicable.
28
As we have explained before,
“The doctrine of invited error is implicated when a party induces or invites the
district court into making an error.” Alabama Great Southern R. Co. v. Johnson,
140 F.2d 968, 970–71 (5th Cir. 1944). For example, a defendant can invite error
by introducing otherwise inadmissible evidence at trial or by submitting an
incorrect jury instruction to the district judge that is then given to the jury.
Generally, an appellate court will not review an error invited by a defendant, on
the rationale that the defendant should not benefit from introducing error at trial
with the intention of creating grounds for reversal on appeal.
United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998). See also Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (adopting as binding precedent the decisions of
the Fifth Circuit rendered prior to October 1, 1981).
The invited-error doctrine can be invoked to foreclose appellate consideration of a
constitutional error. See, e.g., United States v. Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005).
29
We must assume that the bargain benefited—or was at least neutral to—the defendant
because he consented to it after having been fully informed of the consequences that could result
from his lawyer’s absence. Among other things, in determining whether the defendant consented
to the bargain, the court would have explained that if inculpatory testimony were taken in
counsel’s absence, a constitutional violation would have occurred, and that, if convicted, he
could appeal his conviction and assert the violation as a ground for reversal.
158
Case: 12-15093 Date Filed: 04/26/2017 Page: 159 of 281
If we held the doctrine applicable, though, a constitutional violation
occurred with impunity. Since Strickland is inapplicable in the absent-attorney
context under the New Rule’s reasoning, the defendant could not claim in a motion
filed under 28 U.S.C. § 2255 that his attorney’s ineffective assistance, in failing to
anticipate the harm that could result from the introduction of inculpatory testimony
in his absence, caused the violation.
In sum, if we held the invited-error doctrine inapplicable, we would subject
the court to ridicule. If we held it applicable, we would have allowed a
constitutional violation to occur without redress. The conundrum I have described
is the result of our alteration—presumably, for the absence-of-counsel context
alone—of the scheme the Supreme Court has established to ensure the Sixth
Amendment’s guarantee of the assistance of counsel. The majority attempts to
minimize the mischief that alteration will cause by hinting that the New Rule will
not apply if the defendant waives counsel’s absence. See ante at 18. As I explain
below in positing the effect the New Rule will have on the trial of criminal cases—
especially multi-defendant cases—this caveat will turn out to be inoperative.
III.
The immediate reaction of the District Judges of the Eleventh Circuit will be
to reconsider the ways in which they monitor the presence of defense counsel
throughout every stage of a criminal prosecution. After reading what happened in
159
Case: 12-15093 Date Filed: 04/26/2017 Page: 160 of 281
this case, they will take whatever steps are necessary to ensure that, during every
aspect of trial, defense counsel will be present at all times. Despite close
monitoring, however, there will be times when the court becomes unaware of an
attorney’s absence—especially in a multi-defendant case.30 Although the absence
may be of short duration, it will result in a constitutional violation if, during the
absence, inculpatory testimony were taken.
There will also be times when counsel seeks leave of court to attend to
matters elsewhere, as was the case in Vines and in Woods. After receiving the
prosecutor’s assurances that no testimony, or other evidence, would be presented
during counsel’s absence that would potentially incriminate his client and having
obtained the defendant’s permission for defense counsel’s absence, the trial judge
granted defense counsel’s request.
In creating the New Rule, the Court hinted that the New Rule would not be
violated if the defendant were to waive defense counsel’s absence. Ante at 18. By
waiving the presence of defense counsel, the defendant would thereby relinquish
the right to raise a New Rule violation on appeal.
30
I vividly recall trying a 19-defendant drug-trafficking conspiracy when sitting by
designation in Brunswick, Georgia, in the early 1980s. Keeping track of the movement of 19
lawyers in the packed courtroom was no small task. I am sure there were moments when a
lawyer stepped out of the courtroom for any number of reasons—to go to the restroom, to ask the
Marshal whether a witness subpoena had been served, or to make a telephone call.
160
Case: 12-15093 Date Filed: 04/26/2017 Page: 161 of 281
That a defendant may waive the right to the presence of counsel for some
period while he is standing trial raises a question the Court’s opinion doesn’t seem
to answer: Can the trial judge find a waiver based on counsel’s representation that
his client agreed to counsel’s absence or does the trial judge have to address the
defendant directly and explain what will likely take place in counsel’s absence,
pointing out the disadvantages of not having counsel at his side?
The Fifth Circuit, drawing on the Supreme Court’s seminal decision in
Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), and the
Circuit’s decision in Ford v. Wainwright, 526 F.2d 919 (5th Cir. 1976),31 answered
that question in United States v. Russell, 205 F.3d 768 (5th Cir. 2000). As Russell
explained, the trial judge must determine whether the defendant is willing to waive
the right to counsel:
The right to counsel must be waived affirmatively and such waiver
must be understandingly, intelligently, and voluntarily done. A
waiver cannot be established through presumed acquiescence.
Furthermore, it is the “responsibility, obligation and duty of the Trial
Judge” to make this “serious determination of waiver,” and “such
determination should appear plainly on the record.” The trial court
should assist in protecting the defendant’s rights, at a minimum, by
insuring that the defendant is aware of and understands the right to
have counsel present, by explaining the meaning and consequence of
waiving the right to counsel . . . and making sure that such waiver . . .
is on the record.
31
See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (adopting
as binding precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981).
161
Case: 12-15093 Date Filed: 04/26/2017 Page: 162 of 281
Id. at 771 (citations omitted) (quoting Ford, 526 F.2d at 922).
Assuming that the trial judge adheres to this standard in deciding whether or
not the defendant has waived his right to the assistance of counsel during his
attorney’s absence, I consider the likelihood that the court would find a waiver in
either of two scenarios. One is depicted in this case, Roy, in which defense counsel
absented himself without the court’s permission. The other scenario is depicted in
Vines and Woods, in which defense counsel left the trial with the court’s
permission and the defendant’s consent.
A waiver in the Roy scenario has to be found, if at all, after the fact,
following counsel’s absence. To find a waiver, the court must find that prior to
counsel’s absence, the defendant, having been fully informed of the untoward
consequences he might suffer as the trial proceeds in counsel’s absence,
intelligently and voluntarily waived his right to counsel during that absence.
Four “parties” have an interest at stake: the trial judge, the prosecutor, the
defendant, and defense counsel. The trial judge wants to obtain a waiver, for if
upheld on appeal, the waiver would nullify the constitutional error as a ground for
reversing the defendant’s conviction, thereby avoiding a new trial. The prosecutor
162
Case: 12-15093 Date Filed: 04/26/2017 Page: 163 of 281
wants a waiver for the same reason. 32 The defendant, if informed that a
constitutional error has been committed that would inure to his benefit on appeal in
the event he is convicted, is likely to invoke the attorney–client privilege and
decline to answer the judge’s questions, which ask him to reveal what, if anything,
his attorney told him before absenting himself. Defense counsel, although not
answerable under Strickland for the harm his absence caused his client, is
answerable under Strickland for informing his client about the constitutional error
that had occurred during the absence and that a waiver would not be in his client’s
best interest. In short, in the Roy scenario, the trial judge and the prosecutor want a
waiver; the defendant and his attorney do not.
To avoid having to establish in the defendant’s appeal of his conviction that
the constitutional error was harmless beyond a reasonable doubt, the prosecutor
asks the trial judge to determine whether the defendant waived his right to counsel
prior to his attorney’s absence. 33 Assuming the judge may be willing to undertake
the task he would likely decide to question the defendant in open court rather than,
without the prosecutor, in camera. To enable the judge to proceed, the defendant
has to waive the attorney–client privilege. That cannot occur until the defendant
32
The prosecutor evidenced this concern in this case, after Roy’s attorney returned to the
courtroom. Although the prosecutor could not have anticipated the New Rule, he obviously
anticipated a potential Strickland claim based on counsel’s absence.
33
In the case at hand, the prosecutor attempted to minimize the prejudicial effects of
defense counsel’s absence by repeating his questions he had asked Deputy Longson during
counsel’s absence and obtaining the answers Longson had given.
163
Case: 12-15093 Date Filed: 04/26/2017 Page: 164 of 281
has had an opportunity to confer with his lawyer. The lawyer’s advice is key. The
lawyer recommends that the defendant not waive the attorney–client privilege. A
waiver of the attorney–client privilege could lead to the waiver of the right to
counsel during counsel’s absence, and that waiver would, in the event of a
conviction, eliminate any absence-related constitutional error as a ground for
reversing the conviction on appeal. 34 The lawyer recommends against waiving the
attorney–client privilege for another reason: the defendant’s answers to the court’s
questioning might work against counsel’s defense strategy.
In sum, in the Roy scenario, an inquiry into whether the defendant waived
his right to the assistance of counsel prior to counsel’s absence is fraught with
problems—some obvious, some hidden. I predict that the District Judges of this
Circuit will forego the inquiry altogether.
Turning to a waiver in the Vines–Woods scenario, my reading of the tea
leaves is that it will be a rare occasion, indeed, when the trial judge grants defense
counsel a leave of absence. I cannot imagine granting counsel leave in a trial
involving only one defendant. During counsel’s absence, the defendant would
simply sit still and remain silent, defenseless. And I can only imagine granting
34
Under the New Rule, Strickland’s performance standard would govern counsel’s
conduct following his absence and therefore the advice he gives his client as to whether he
should waive the attorney–client privilege. I suggest that to avoid an ineffective-assistance claim
on collateral attack, counsel would advise the defendant not to waive the privilege.
164
Case: 12-15093 Date Filed: 04/26/2017 Page: 165 of 281
counsel leave in a multi-defendant trial in extraordinary circumstances. Multi-
defendant trials invariably involve a charge of conspiracy, which means that
practically all of the evidence is admissible against all of the defendants as relevant
to prove the crime. The trial judge, when inquiring of a particular defendant as to
whether the defendant is willing to waive the right to his attorney’s presence,
would have to be clairvoyant to inform the defendant of exactly what would
transpire during his attorney’s absence. Testimony inculpating the accused could
come in unexpectedly through a co-defendant’s cross-examination of a witness, or
it could come in the form of an exhibit introduced into evidence or marked for
identification and published to the jury. A waiver of counsel’s presence that would
cover the unknown or unanticipated would be, to put it mildly, of dubious validity.
A waiver found under these circumstances would do away with the Sixth
Amendment violations that occurred in counsel’s absence. If convicted, the
defendant will raise the violations as grounds for reversal in his opening brief on
appeal. The Government will assert the waiver in its answer brief, and the
defendant in his reply brief will argue that the waiver was invalid. Our job will be
to wrestle with the waiver’s validity or, alternatively, to search the record to
165
Case: 12-15093 Date Filed: 04/26/2017 Page: 166 of 281
determine whether the constitutional violations were harmless beyond a reasonable
doubt.35
Yes, it will be a rare occasion, indeed, when a trial judge grants defense
counsel permission to absent himself from the trial proceeding. Thus, the Court’s
caveat hinting that the possibility of defendants’ waiving the presence of counsel
may mollify the effects of the New Rule rings hollow.
IV.
The New Rule modifies Strickland’s application in the Eleventh Circuit.
After today, a defendant will be unable to claim that his attorney’s absence from
the courtroom during trial fell below the standard for effective assistance of
counsel set forth in Strickland.
The New Rule relieves defense counsel of his Sixth Amendment obligation
under Strickland when absenting himself from trial. The result is that, during
counsel’s absence, the client is left standing trial alone without the right to defend
himself, which he would possess if he had chosen to represent himself. Although
he placed his client in that situation, defense counsel is not accountable under
35
Based on the procedural posture of claims that will be brought under the New Rule on
direct review, the difficulty of assessing a purported waiver’s validity may prove to be beyond
our review in the overwhelmingly majority, if not all, such cases. As Judge Birch’s dissenting
opinion in Vines suggests instead, harmless-error review under Chapman will be the norm, if not
the entire ball game. See Vines, 28 F.2d at 1137–38 (Birch, J., dissenting) (“I conclude that the
waiver issue has not been reviewed properly in the district court. Therefore, the record in this
case does not enable us to determine if Vines’s waiver of his right to counsel was knowing,
intelligent and voluntary. A remand should be required to make this determination.”).
166
Case: 12-15093 Date Filed: 04/26/2017 Page: 167 of 281
Strickland for any prejudice his client suffered during his absence. Instead, the
responsibility for the prejudice lies with the trial judge.
The responsibility lies with the trial judge because the New Rule transfers to
the trial judge defense counsel’s obligation under Strickland not to absent himself
from the trial proceeding and leave his client defenseless. The trial judge is held
responsible, as if he had committed a constitutional error, for any prejudice the
defendant suffers during counsel’s absence. If the defendant is convicted and
appeals, the trial judge will be held accountable for the prejudice, if any, in the
form of a reversal, unless the Government can convince this Court that the
prejudice was harmless beyond a reasonable doubt.
In conclusion, today’s decision rearranges the Supreme Court’s scheme for
protecting the right to the assistance of counsel in the absence-of-counsel context,
and that context alone. The framework Strickland fashioned is modified,
supplanted by a new constitutional rule that imposes accountability on the trial
judge without fault. As applied going forward, the New Rule becomes fault based
and effectively instructs trial judges that if a defendant’s lawyer is absent at any
time during the prosecution, they will have committed constitutional error.36
36
In promulgating the New Rule, we are acting as if we were exercising our supervisory
powers, but doing so unnecessarily. As the Supreme Court observed in United States v. Hasting,
“Supervisory power to reverse a conviction is not needed as a remedy when the error to which it
is addressed is harmless since by definition, the conviction would have been obtained
167
Case: 12-15093 Date Filed: 04/26/2017 Page: 168 of 281
Eighty years ago, Justice Brandeis, concurring in Ashwander v. Tennessee
Valley Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J.,
concurring), observed that the Supreme Court “will not formulate a rule of
constitutional law broader than is required by the precise facts to which it is to be
applied.” Id. at 347, 56 S. Ct. at 483 (quotation marks and citation omitted). In
this case, the New Rule is unnecessary to affirm Roy’s convictions. I would
decline Roy’s invitation, which the Government joins, to modify Strickland’s
application and create a new Sixth Amendment rule, because any error that may
have occurred was harmless beyond a reasonable doubt. In affirming his
convictions, I would explicitly state that Roy is free to pursue a Strickland
ineffective-assistance claim in the District Court in a motion filed under 28
U.S.C. § 2255.
notwithstanding the asserted error.” 461 U.S. 499, 506, 103 S. Ct. 1974, 1979, 76 L. Ed. 2d 96
(1982). In this case, since the alleged error is harmless beyond a reasonable doubt, this Court
need not make the constitutional rulings it is making.
168
Case: 12-15093 Date Filed: 04/26/2017 Page: 169 of 281
WILLIAM PRYOR, Circuit Judge, concurring:
Although I agree that we should review for harmless error and that the error
in this appeal is harmless, we have unnecessarily complicated this appeal. This
appeal does not require that we create a new test to identify structural defects. Nor
does it require that we adopt wholesale a multi-factor test that other circuits
designed to address the different problem of a sleeping lawyer. I concur in full in
Parts I, II, III, IV, VI, and VII of the majority opinion. I also concur in Parts V.A,
V.B, V.D, and V.E, except for the characterization of Cronic as an exception to the
harmless error rule instead of a kind of constitutional violation. I do not join Part
V.C.
The Sixth Amendment provides, “In all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S.
Const. Amend. VI. The Supreme Court issued two decisions on the same day
interpreting this clause: Strickland v. Washington, 466 U.S. 668 (1984), and United
States v. Cronic, 466 U.S. 648 (1984). Strickland held that ineffective assistance of
counsel, defined as performance that is both objectively unreasonable and actually
prejudicial, violates the Sixth Amendment. 466 U.S. at 688, 692. Cronic clarified
that some circumstances require no showing of actual prejudice to establish a Sixth
Amendment violation, namely those “that are so likely to prejudice the accused
that the cost of litigating their effect in a particular case is unjustified.” 466 U.S. at
169
Case: 12-15093 Date Filed: 04/26/2017 Page: 170 of 281
658. For example, we presume prejudice for (1) the “complete denial of counsel”
“at a critical stage of . . . trial,” (2) the “entire[] fail[ure] to subject the
prosecution’s case to meaningful adversarial testing,” and (3) what amounts to a
sham appointment of counsel, as in Powell v. Alabama, 287 U.S. 45 (1932).
Cronic, 466 U.S. at 659–61. Strickland is about the ineffective assistance of
counsel, and Cronic is about what amounts to no assistance of counsel at all.
The majority treats Cronic as an “exception to the harmless error rule,” see,
e.g., Maj. Op. at 26, when it actually describes “a narrow exception to the two
prong Strickland test.” Vines v. United States, 28 F.3d 1123, 1127 (11th Cir. 1994);
see also Castillo v. Fla., Sec’y of Dep’t of Corr., 722 F.3d 1281, 1286–87 (11th
Cir. 2013). Both Strickland and Cronic address whether a constitutional violation
occurred, not an exception to an ordinary standard of review. See Mickens v.
Taylor, 535 U.S. 162, 166 (2002).
I agree with the majority that a violation of the Sixth Amendment occurred
at Roy’s trial. I agree with the majority that “we are not treating this as an attorney
error case. . . . Nor do the parties treat it as one.” Maj. Op. at 19 n.7. This
conclusion makes sense because “Strickland assumes the presence of counsel.”
Vines, 28 F.3d at 1127. I also agree that Roy’s appeal does not present the kind of
extraordinary circumstances discussed in Cronic that would entitle him to a
presumption of prejudice. Counsel’s absence for seven minutes of testimony in a
170
Case: 12-15093 Date Filed: 04/26/2017 Page: 171 of 281
week-long trial, where the testimony was then repeated without objection during
counsel’s presence, is neither a complete denial of counsel for a critical stage nor
an entire failure to provide meaningful adversarial testing. Nevertheless, I also
agree with the majority that “it is a violation of the Sixth Amendment for
inculpatory testimony to be taken from a government witness without the presence
of at least one of the defendant’s counsel,” Maj. Op. at 18, because the defendant
has briefly been denied “the Assistance of Counsel for his defence,” U.S. Const.
Amend. VI.
Because the denial of Roy’s constitutional right to the assistance of counsel
is neither the kind described in Strickland nor in Cronic, we must decide whether
this violation is a trial error or a structural defect. Most constitutional errors are
trial errors: those that “occur during presentation of the case to the jury” and have
an effect that can “be quantitatively assessed in the context of other evidence
presented in order to determine whether they were harmless beyond a reasonable
doubt.” United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006) (alterations
adopted) (quoting Arizona v. Fulminante, 499 U.S. 279, 307–08 (1991)). Other
constitutional errors are structural defects, which “defy analysis by harmless-error
standards because they affect the framework within which the trial proceeds.”
Gonzalez-Lopez, 548 U.S. at 149 (alteration adopted) (internal quotation marks
omitted) (quoting Fulminante, 499 U.S. at 309–10). Structural defects are those
171
Case: 12-15093 Date Filed: 04/26/2017 Page: 172 of 281
“whose precise effects are unmeasurable, but without which a criminal trial cannot
reliably serve its function.” Sullivan v. Louisiana, 508 U.S. 275, 281 (1993).
Roy’s appeal does not present a structural defect. The brief absence of
counsel does not present the sort of pervasive, framework-shifting violation that
makes the denial of counsel of choice or the total denial of counsel structurally
defective. Gonzalez-Lopez, 548 U.S. at 150. As thoroughly explained by the
majority, the temporary absence of Roy’s counsel did not have “consequences that
are necessarily unquantifiable and indeterminate” that “unquestionably qualif[y] as
‘structural error.’” Id. (quoting Sullivan, 508 U.S. at 282). There was no systemic
breakdown in the adversarial process, and we can easily measure Roy’s prejudice.
I agree with the majority that the error here was harmless beyond a
reasonable doubt. Future violations of the Sixth Amendment based on the
temporary absence of counsel can be easily avoided: I would hope that no district
court in this Circuit would ever begin or resume a trial without defense counsel
being present. If a lawyer is late, a district court can employ other remedies to
solve that problem.
172
Case: 12-15093 Date Filed: 04/26/2017 Page: 173 of 281
JORDAN, Circuit Judge, concurring:
For me, the record drives the resolution of this case and renders largely
academic the debate about what constitutes a “critical stage” of a trial. I therefore
join the court’s opinion except for Parts V.B and V.C.3, both of which discuss
what is or is not a “critical stage.” The portions I join contain what I consider to be
the court’s two most important holdings: that there was a Sixth Amendment
violation due to defense counsel’s absence from a brief portion of the trial, and that
this constitutional error was harmless.
To recap, while Mr. Roy’s counsel was absent from the courtroom for seven
minutes, Deputy Longson answered a number of questions posed to him by the
prosecutor. Once counsel had returned, however, Deputy Longson repeated the
testimony he had given in counsel’s absence. There was one difference in the
testimony, as the court’s opinion explains, but that difference was not material. So
counsel heard essentially everything he had missed during his brief absence, chose
not to object to what he heard upon his return, and had the opportunity to cross-
examine Deputy Longson concerning the repeated testimony.
Because there was, in practical terms, a do-over after counsel returned to the
courtroom, this case is amenable to harmless error review, and there is no need (or
institutional reason) to presume prejudice. We can, without much difficulty, assess
the impact (or lack thereof) of counsel’s absence, as was done in Sweeney v.
173
Case: 12-15093 Date Filed: 04/26/2017 Page: 174 of 281
United States, 766 F.3d 857, 860–61 (8th Cir. 2014), and United States v. Kaid,
502 F.3d 43, 45-47 (2d Cir. 2007).
Another way to approach this case is to think about what might have
happened had Mr. Roy’s counsel objected, immediately upon his return to the
courtroom, to evidence being presented in his absence. The district court, I think,
would not have been compelled to grant an immediate mistrial, and could have
remedied the Sixth Amendment violation in a number of ways. For example, the
district court could have told the jurors what happened, stricken the testimony
introduced in counsel’s absence, instructed the jurors to disregard that testimony,
and allowed the prosecutor to elicit that testimony again. Or the district court
could have excused the jury, allowed the court reporter to read back the testimony
that counsel had missed, and permitted counsel to lodge any objections he wished.
Either of these two options, in my opinion, would have allowed counsel to be
prepared to question Deputy Longston and rendered the constitutional error
harmless. Here, the repetition of the missed testimony following counsel’s return
to the courtroom accomplished essentially the same thing.
But where the absence of counsel is longer, and/or where the missed
testimony is not substantially repeated or available for review prior to cross-
examination, the constitutional analysis (and the result) might well be different.
See, e.g., United States v. Russell, 205 F.3d 768, 769–70, 772–73 (5th Cir. 2000);
174
Case: 12-15093 Date Filed: 04/26/2017 Page: 175 of 281
Olden v. United States, 224 F.3d 561, 566, 568–70 (6th Cir. 2000). The same goes
for when both the defendant and his counsel are missing from the courtroom while
inculpatory testimony is presented, as the defendant’s absence adds an important
wrinkle to the analysis. Cf. Snyder v. Comm. of Massachusetts, 291 U.S. 97, 107–
08 (1934) (“So far as the Fourteenth Amendment is concerned, the presence of a
defendant is a condition of due process to the extent that a fair and just hearing
would be thwarted by his absence, and to that extent only.”); United States v.
Bowe, 221 F.3d 1183, 1189 (11th Cir. 2000) (articulating the same standard under
the Fifth Amendment). I do not read the court’s opinion to suggest otherwise.
175
Case: 12-15093 Date Filed: 04/26/2017 Page: 176 of 281
ROSENBAUM, Circuit Judge, concurring in part and concurring in the result:
In my view, the Majority opinion’s ultimate determinations that the error in
Roy’s case is subject to harmless-error review and that the error here was, in fact,
harmless beyond a reasonable doubt are correct. But I respectfully disagree with
the Majority opinion’s framework for evaluating cases raising claims involving
counsel’s absence during the taking of directly inculpatory evidence in single-
defendant trials.
Though the Majority opinion correctly acknowledges that the absence of
counsel during the taking of directly inculpatory evidence can be structural error,
see Maj. Op. at 61-72, it rejects the notion that counsel’s absence can constitute the
type of structural error known as Cronic 1 error if counsel is not gone for the
entirety of a “critical stage” of trial. Instead, the Majority asserts that we need a
new substantial-portion-of-the-trial standard, derived without reference to Cronic,
to assess whether structural error has occurred when counsel is absent for only part
of trial. I cannot agree with this conclusion. If a defendant suffers deprivation of
counsel that is “so likely to prejudice the accused that the cost of litigating [its]
effect in a particular case is unjustified,” United States v. Cronic, 466 U.S. 648,
658 (1984), then Cronic error has occurred, regardless of whether the deprivation
lasted for an entire “critical stage” of trial. As a result, we must presume prejudice.
1
United States v. Cronic, 466 U.S. 648 (1984).
176
Case: 12-15093 Date Filed: 04/26/2017 Page: 177 of 281
The Majority’s development of a new standard to supplement Cronic solves
a non-existent problem. Contrary to the Majority opinion’s contention, Cronic’s
language does not impose a repressive “formula” that makes the opinion
inapplicable in cases where counsel is absent for only part of trial. See Maj. Op. at
60. The Majority opinion proceeds on the incorrect assumption that Cronic error
occurs only when “defense counsel ‘entirely fails to subject the prosecution’s case
to meaningful adversarial testing’ in the trial or where ‘the complete denial of
counsel’ at a ‘critical stage of [the] trial’” happens. See id. at 22-23 (quoting
Cronic, 466 U.S. at 659). But these formulations are merely demonstrative
examples of “circumstances [involving denial of counsel] that are so likely to
prejudice the accused that the cost of litigating their effect in a particular case is
unjustified”—Cronic’s ultimate standard for structural error. Cronic, 466 U.S. at
658.
In evaluating a deprivation-of-counsel error, we must not lose sight of our
ultimate goal—to safeguard the adversarial process that gives a trial its basic
character. The Supreme Court did not intend Cronic to provide an exhaustive list
of specific circumstances giving rise to a presumption of prejudice. Rather, the
decision and the Supreme Court’s later jurisprudence on structural error
demonstrate that Cronic error includes any denial-of-counsel error that renders a
trial presumptively unreliable because of a breakdown of the adversarial process.
177
Case: 12-15093 Date Filed: 04/26/2017 Page: 178 of 281
See id. at 656-58. Simply put, when the absence is long enough to create a high
probability that the accused fundamentally did not receive the trial promised to him
under the Constitution, structural error occurs, and we need not conduct any search
for actual prejudice. This type of error, of course, can occur when counsel is
absent for only part of a critical stage of trial.
Nor are the differences between the Majority opinion’s approach and an
analysis under Cronic merely semantic. The Majority opinion’s departure from
Cronic imparts at least two undesirable consequences. First, the new standard that
the Majority opinion announces today—the substantial-portion-of-the-trial
standard—violates the Supreme Court’s instruction to use a categorical, rather than
case-by-case, approach to determining whether an error is structural. Indeed, the
Majority opinion’s test expressly requires case-by-case application and the
weighing of subjectively judged factors. See Maj. Op. at 70-71. This type of
inquiry defeats the purpose of review for structural error—to identify and weed out
circumstances highly likely to result in “fundamental unfairness” where finer-tooth
review will often be impractical or judicially uneconomical. It will also
necessarily cause inconsistent determinations about when structural error occurs in
absent-counsel cases.
The Majority opinion’s substantial-portion-of-the-trial standard also does not
sufficiently appreciate the fundamental nature of the absence-of-counsel error. So
178
Case: 12-15093 Date Filed: 04/26/2017 Page: 179 of 281
it relegates even lengthier absences to trial-error status, even though the role that
counsel plays at trial warrants that all but the briefest of absences in a single-
defendant trial constitute structural error.
Instead of the Majority opinion’s approach, we must evaluate whether
counsel’s absence in a single-defendant trial justifies a presumption of prejudice
without regard to whether the defendant was actually prejudiced in a given case.
We do that by making a probability assessment of when, in general, counsel’s
absence becomes long enough that it is likely to result in a breakdown in the trial
structure; create the appearance of unfairness to the jury and the public; affect
counsel’s trial strategy; and make the potential for prejudice to the defendant high
and the costs of litigating the actual effects of the denial, if even possible, not
worthwhile. When that happens, the defendant has suffered structural error under
Cronic.
Contrary to the Majority opinion’s suggestion, these factors allow hardly any
wiggle room for the absence of counsel before trial error crosses the threshold of
structural error and requires prejudice to be presumed. So structural error must be
the rule, not the exception as the Majority opinion makes it, in absent-counsel
cases.
I write separately to explain where the line must be drawn in the course of
determining whether Cronic error has occurred and why it must be ascertained
179
Case: 12-15093 Date Filed: 04/26/2017 Page: 180 of 281
without respect to whether prejudice has, in fact, occurred in a given case. The
general rule must be that counsel’s absence in a single-defendant trial is structural
error under Cronic when it renders a trial presumptively unreliable because of a
breakdown of the adversarial process—a rule that correlates with counsel’s
absence for more than ten minutes or 1% of the trial.
I. Trial error and structural error differ in important ways.
Constitutional errors fall into two categories: trial error and structural error.2
Trial error happens “during the presentation of the case to the jury[] and . . . may
therefore be quantitatively assessed in the context of other evidence.” Arizona v.
Fulminante, 499 U.S. 279, 307-08 (1991). When trial error occurs, we evaluate it
by determining whether the government has proven that the error was harmless to
the outcome, beyond a reasonable doubt. Id. “[M]ost constitutional errors” fall
into the category of trial error. United States v. Gonzalez-Lopez, 548 U.S. 140, 148
(2006) (internal quotation marks omitted).
2
In United States v. Gonzalez-Lopez, 548 U.S. 140, 159 (2006) (Alito, J., dissenting),
four dissenting Justices took issue with the Court’s division of constitutional error into the all-
inclusive categories of trial error, which always is subject to harmless-error review, and
structural error, which always results in automatic reversal. While the Court stated that its
conclusion that denial of the right to counsel of choice constitutes structural error “relie[d]
neither upon such comprehensiveness nor upon trial error as the touchstone for the availability of
harmless-error review,” the Court nonetheless responded to the dissenters’ objection by opining
that “it is hard to read [its precedent] as doing anything other than dividing constitutional error
into two comprehensive categories.” Id. at 149 n.4.
180
Case: 12-15093 Date Filed: 04/26/2017 Page: 181 of 281
Structural error, in contrast, “affect[s] the framework within which the trial
proceeds, rather than [being] simply an error in the trial process itself.”
Fulminante, 499 U.S. at 310. This type of error “necessarily render[s] a trial
fundamentally unfair.” Rose v. Clark, 478 U.S. 570, 577 (1986). For this reason,
when structural error occurs, we do not give the government a chance to try to
demonstrate beyond a reasonable doubt that the defendant was not prejudiced;
instead, we assume prejudice without actually assessing the record for it. See
generally Gonzalez-Lopez, 548 U.S. at 148.
Failure to provide the “basic protections” at trial, id.—an impartial judge,
the correct standard of proof, an impartial jury, and the assistance of counsel, see
Neder v. United States, 527 U.S. 1, 9 (1999)—results in structural error because
when any of these safeguards is missing, “a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or innocence, and no criminal
punishment may be regarded as fundamentally fair.” Rose, 478 U.S. at 577-78
(citation omitted).
The effects of the structural error can be difficult or even impossible to
quantify. Gonzalez-Lopez, 548 U.S. at 149 n.4. And even when they can be
assessed, structural error involves “‘circumstances . . . that are so likely to
prejudice the accused that the cost of litigating their effect in a particular case is
181
Case: 12-15093 Date Filed: 04/26/2017 Page: 182 of 281
unjustified.’” See Wright v. Van Patten, 552 U.S. 120, 124 (2008) (quoting
Cronic, 466 U.S. at 658).
Trial error and structural error differ in another important way as well.
While we assess harmless error on a case-by-case basis, an error that qualifies as
structural error does so categorically. As the Supreme Court has explained, “a
constitutional error is either structural or it is not,” so we do not evaluate the
specific impact of a given iteration of constitutional error upon a jury’s verdict
when we determine whether the error constitutes structural error. Neder, 527 U.S.
at 14.
II. Denial of counsel during some of the taking of inculpatory evidence in a
one-defendant trial can rise to the level of Cronic error.
Structural error can arise in different ways in the context of the denial of the
Sixth Amendment right to counsel, but the touchstone for the analysis in all cases
asks whether the denial has resulted in circumstances “so likely to prejudice the
accused that the cost of litigating [its] effect in a particular case is unjustified.”
Cronic, 466 U.S. at 658. In Cronic, the Supreme Court identified some specific
circumstances that would meet this standard to demonstrate how courts should
think about the problem.
The “[m]ost obvious” variety of Cronic error arises when “the accused is
denied counsel at a critical stage of . . . trial.” Cronic, 466 U.S. at 659. Perhaps
this manifestation of Cronic error can occur when counsel is absent for a non-de
182
Case: 12-15093 Date Filed: 04/26/2017 Page: 183 of 281
minimis part of a “critical stage” of trial.3 But even if it cannot, counsel’s absence
during a non-de minimis part of trial causes a “breakdown of the adversarial
process,” which constitutes “circumstances that are so likely to prejudice the
accused that the cost of litigating their effect in a particular case is unjustified.”
Cronic, 466 U.S. at 657-58. I explain each of these manifestations of Cronic error,
in turn, below.
A. The denial of counsel during only part of a “critical stage” can rise to
the level of Cronic error.
1. A “critical stage” is a discrete and readily identifiable, critically
important unit of trial.
I agree with the Majority that a “critical stage” cannot consist of a single
question and answer or even several questions and answers from a single witness.
Maj. Op. at 28. Rather, for the reasons the Majority opinion describes, a “critical
stage” must be a discrete and readily discernible part of the trial. See id. at 30-31.
A “critical stage” of trial also “h[olds] significant consequences for the
accused. Bell v. Cone, 535 U.S. 685, 696 (2002). For example, in discussing
Cronic error that arises when “the accused is denied counsel at a critical stage of
3
As I discuss later in this concurrence, Cronic speaks in terms of circumstances that
result in an “actual breakdown of the adversarial process” and that are “so likely to prejudice the
accused that the cost of litigating their effect in a particular case is unjustified.” 466 U.S. at 657-
68. The absence of counsel for a very brief period does not effect these consequences, so the
denial of counsel during part of a critical stage of trial that Cronic speaks of must be more than
de minimis.
183
Case: 12-15093 Date Filed: 04/26/2017 Page: 184 of 281
. . . trial,” the Supreme Court has identified as “critical stages,” among others,
arraignment, Hamilton v. Alabama, 368 U.S. 52, 54 (1961), the preliminary
hearing, White v. Maryland, 373 U.S. 59, 60 (1963), closing argument, Herring v.
New York, 422 U.S. 853, 865 (1975), and recess, Geders v. United States, 425 U.S.
80, 91 (1976).
Here, the Majority opinion does not dispute that Roy was denied counsel
while the trial court admitted directly inculpatory evidence in his counsel’s
absence. Nor does the Majority opinion appear to contend that the taking of
directly inculpatory evidence is not, as a whole, a “critical stage” of trial within the
meaning of Cronic. And it could not.
As Judge Wilson points out, it is hard to envision a stage of trial that holds
more “significant consequences” for the defendant, Bell, 535 U.S. at 696, than the
taking of directly inculpatory evidence. See Wilson Op. at 240-43; see also Perry
v. Leeke, 488 U.S. 272, 287 (1989) (Marshall, J., dissenting) (“‘[I]t is difficult to
perceive a more critical stage . . . than the taking of evidence on the defendant’s
guilt.’”) (quoting Green v. Arn, 809 F.2d 1257, 1263 (6th Cir. 1987)). In the
absence of inculpatory evidence, conviction is a legal impossibility because the
defendant is presumed innocent until a jury finds that the government has
presented sufficient evidence to establish guilt beyond a reasonable doubt. That
cannot be said of other stages of trial, such as closing argument. And though a jury
184
Case: 12-15093 Date Filed: 04/26/2017 Page: 185 of 281
can return a guilty verdict without hearing closing argument by the prosecution, we
have nonetheless held that closing arguments constitute a critical stage of trial. See
Hunter v. Moore, 304 F.3d 1066, 1069-70 (11th Cir. 2002).
2. The denial of counsel during only part of a “critical stage” can
rise to the level of Cronic error.
Though the Majority opinion does not dispute that the taking of inculpatory
evidence meets the definition of a “critical stage” of trial, it asserts that the
Supreme Court’s decision in Cronic “limited the presumption of prejudice to cases
where defense counsel” was absent “during an entire ‘stage of [the] trial.’” Maj.
Op. at 22, 29, 32 (emphasis added) (quoting Cronic, 466 U.S. at 659)). But while
the Majority opinion rejects the idea that counsel’s absence for less than an entire
critical stage can constitute Cronic error, the Majority opinion nonetheless
acknowledges that structural error can occur in those circumstances. See id. at 32-
34, 60-61.
The Supreme Court has never held that the absence of counsel for part, but
not all, of a critical stage of trial does not constitute structural error. First of all, it
is not even clear that Cronic’s language supports the Majority opinion’s reading of
Cronic to so limit the presumption of prejudice. The opinion speaks of the denial
of counsel “at a critical stage of . . . trial,” 466 U.S. at 659 (emphasis added), not
“throughout” a “critical stage.” And the denial of counsel for part of a critical
stage is nonetheless the denial of counsel “at a critical stage.”
185
Case: 12-15093 Date Filed: 04/26/2017 Page: 186 of 281
But more significantly, this language offers but one angle from which a
court can approach the problem of defining structural error in denial-of-counsel
cases. In no case where the Supreme Court has found structural error concerning
the right to counsel has the Court held that the absence of counsel for the entirety
of a critical stage is a necessary prerequisite for a finding of structural error.
Instead, the cases to which the Majority opinion refers, and some of the Supreme
Court’s descriptions of them, reflect only that those cases happened to concern
facts involving the absence of counsel throughout the entire critical stage at issue.4
Although the Supreme Court has never considered a case like Roy’s, the
Supreme Court has, at least once, effectively found structural error where the
defendant suffered a deprivation of counsel for less than the entirety of what
appears to be a “critical stage” of the proceedings. In Geders v. United States, 425
U.S. 80 (1976), the defendant was in the middle of his trial testimony when,
despite defense counsel’s objections, the court prohibited the defendant from
conferring with his counsel during a seventeen-hour overnight recess that occurred
in the ten-day trial. Id. at 88.
Without considering specific prejudice in Geders’s case in any way, the
Supreme Court reversed the defendant’s conviction because the order “impinged
4
See, e.g., Holloway v. Arkansas, 435 U.S. 475 (1978) (counsel labored under conflict of
interest throughout entire proceeding); White, 373 U.S. at 59-60 (counsel absent for an entire
preliminary hearing); Hamilton, 368 U.S. at 52 (counsel absent for entire arraignment).
186
Case: 12-15093 Date Filed: 04/26/2017 Page: 187 of 281
upon [the defendant’s] right to the assistance of counsel guaranteed by the Sixth
Amendment.” Id. at 91. As the Court explained,
recesses are often times of intensive work, with tactical
decisions to be made and strategies to be reviewed. The
lawyer may need to obtain from his client information
made relevant by the day’s testimony, or he may need to
pursue inquiry along lines not fully explored earlier. At
the very least, the overnight recess during trial gives the
defendant a chance to discuss with counsel the
significance of the day’s events.
Id. at 88. So Geders demonstrates that Cronic error can occur when a deprivation
of counsel lasts for only part of a “critical stage.”
The Majority opinion attempts to distinguish Geders in two ways. Neither is
persuasive.
First, the Majority notes that the opinion never used the terms “critical
stage” or “stage” in its analysis. Maj. Op. at 33. That’s true. Cronic had not been
decided at that time, so Geders mentions neither “critical stages” nor “structural
error.” But the Supreme Court has since indicated that it views Geders as part of
its structural-error—and particularly the Cronic variety of its structural-error—
jurisprudence.
Indeed, in Cronic itself, the Supreme Court specifically described its
reasoning in Geders as having “found constitutional error without any showing of
prejudice when counsel was either totally absent, or prevented from assisting the
accused during a critical stage of the proceeding.” Cronic, 466 U.S. at 659 n.25
187
Case: 12-15093 Date Filed: 04/26/2017 Page: 188 of 281
(emphasis added). The fact that the Court did not use the terms “critical stage” or
“stage” in Geders itself therefore does not somehow make Geders any less of an
example of a deprivation of counsel that is presumptively prejudicial despite
lasting through only part of a critical stage.
The Court’s ruling in Strickland v. Washington, 466 U.S. 668 (1984),
reinforces this point about the relationship between Geders and Cronic. Strickland
incorporates by reference Cronic’s citation to Geders when it says, “Actual or
constructive denial of the assistance of counsel altogether is legally presumed to
result in prejudice.” 466 U.S. at 692 (citing Cronic, 466 U.S. at 659 n.25 (citing
Geders, 425 U.S. at 80)). The Majority opinion cites this sentence from Strickland
and emphasizes the word “altogether” to support its theory that the Cronic
exception applies only when counsel is absent for an entire “critical stage.” See
Maj. Op. at 26-27.
But Geders plainly does not fit that bill. In light of this fact and the specific
issue that Strickland considered (ineffectiveness of counsel, not counsel’s actual
absence for any length of time), the quoted Strickland sentence does not support
the proposition that any presumptively prejudicial denial of counsel must last
throughout an entire critical stage to be structural error. Rather, the Court in
Strickland merely contrasted absent-counsel cases under Cronic with the situation
188
Case: 12-15093 Date Filed: 04/26/2017 Page: 189 of 281
where counsel is present and functioning throughout the trial but may be
ineffective in some way.
Second, the Majority opinion characterizes Geders as “one of a line of
decisions presuming prejudice where a defense attorney was prevented from, or
impeded in, rendering assistance of counsel to his client because of an
unconstitutional statute or court order.” Id. at 33-34 (citing Perry, 488 U.S. at 279-
80). This description is accurate as far as it goes, but it does not justify the
Majority opinion’s subsequent conclusion that Geders is simply a government-
impediment case. Nor does it support the Majority opinion’s position that “[t]he
. . . statutory or court-ordered interference exception to the prejudice requirement
that was applied in Geders . . . does not apply in this case,” id. at 34, even setting
aside for the moment the fact that Cronic itself cites Geders in support of its
critical-stage analysis. See Cronic, 466 U.S. at 659 n.25.
Rather, Geders demonstrates that government impediment will nearly
always, if not always, occur in some form in cases involving Cronic error. Among
other descriptions, the Supreme Court has summarized Geders as a case “where [it]
found a Sixth Amendment error without requiring a showing of prejudice” because
Geders involved a criminal defendant “who had actually . . . been denied counsel
by government action.” Bell, 535 U.S. at 696 n.3.
189
Case: 12-15093 Date Filed: 04/26/2017 Page: 190 of 281
That also happened in Roy’s case. Starting trial and taking directly
inculpatory evidence when the defendant’s counsel is absent—even
inadvertently—likewise deprives a defendant of assistance of counsel through
“government action.” It makes no difference whether the court, 5 the prosecution,6
or defense counsel bears blame for counsel’s absence.7 “Our Constitution places
in the hands of the trial judge the responsibility for safeguarding the integrity of
the jury trial,” United States v. Gainey, 380 U.S. 63, 68 (1965) (emphasis added),
which includes “the duty of seeing that the trial is conducted with solicitude for the
5
Here, the court began trial a minute earlier than the scheduled recess ended. Counsel
certainly should have been present at that point, and efficiency and promptness are praiseworthy
qualities in a district court. Nevertheless, if blame were relevant—it’s not for the reasons I have
mentioned—a court that starts trial before the end of a scheduled recess, when counsel in a
single-defendant trial is absent, is not entirely without fault in the deprivation.
6
Nevertheless, “[t]he United States Attorney is the representative not of an ordinary party
to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as
its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that
it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite
sense the servant of the law.” Berger v. United States, 295 U.S. 78, 88 (1935). Consequently,
the prosecutor has an independent responsibility to ensure that trial does not proceed when
defense counsel is not present.
7
That is not to say that counsel who is late may not be sanctioned. It is certainly fair and
appropriate for a judge to expect attorneys to be on time. When an attorney is late, the resulting
delay unnecessarily takes up the court’s precious time and unfairly impinges on the jury’s time.
Of course, sometimes circumstances beyond an attorney’s control can occur. Nothing in the
record indicates that defense counsel in Roy’s case was chronically late for trial or regularly
returned late from recesses. If it did, sanctions of some type might well be in order. But even if
they were, “[t]here are other ways to deal with the problem . . . short of” denying the defendant
his counsel during the taking of directly inculpatory evidence. Cf. Geders, 425 U.S. at 89. For
example, the court could monetarily sanction counsel outside the presence of the jury, or, if
counsel is court-appointed, the court could remove counsel from the approved Criminal Justice
Act list. But counsel’s tardiness alone cannot justify denial of a defendant’s right to counsel. Of
course, if a defendant affirmatively schemes to introduce reversible error through his counsel’s
absence, that is a different matter and may constitute a waiver of the right. The record contains
no evidence that that is the situation here.
190
Case: 12-15093 Date Filed: 04/26/2017 Page: 191 of 281
essential rights of the accused,” Glasser v. United States, 315 U.S. 60, 71 (1942),
superseded on other grounds by statute as recognized in Bourjaily v. United States,
483 U.S. 171, 181 (1987). Necessarily, then, “[t]he trial court should protect the
right of an accused to have the assistance of counsel.” Id.
This makes perfect sense: the court alone enjoys control over the trial
proceedings, including when to start, stop, and resume trial. And trial simply
cannot proceed without the court’s actions in allowing it to do so. After all, the
government, or even the defense, cannot call a witness to the stand and begin
questioning when the trial judge is not present. Because of the judge’s essential
role in convening trial, when a court conducts trial in defense counsel’s absence,
government action has necessarily deprived a defendant of his right to counsel
during trial. Inevitably, then, government impediment likely will always be
relevant in absent-counsel cases.
But government impediment alone is not enough to explain why the error in
Geders was structural. If it were, the error in Roy’s case would be structural
without regard to the length of his counsel’s absence from trial. Indeed, the
Majority probably would agree we should not conclude, based on Geders, that any
government interference with the right to counsel always triggers structural error
under any circumstances for essentially the same reasons the Majority opinion
concludes that counsel’s absence for less than a “substantial portion of the trial” is
191
Case: 12-15093 Date Filed: 04/26/2017 Page: 192 of 281
not structural. See Strickland, 466 U.S. at 686 (noting that “[g]overnment violates
the right to effective assistance when it interferes in certain ways,” but not
necessarily all ways, “with the ability of counsel to make independent decisions
about how to conduct the defense”) (emphasis added). Consequently, Geders
supports the notion that structural error—including Cronic error—can occur when
an error lasts for only part of a critical stage.
In sum, the absence of counsel during part of a “critical stage” can constitute
Cronic error.
B. “[A]n actual breakdown of the adversarial process” results in Cronic
error because the breakdown amounts to “circumstances so likely to
prejudice the accused that the cost of litigating their effect in a
particular case is unjustified.”
The question remains: how long of an absence during the taking of
inculpatory evidence can be tolerated before the absence results in “circumstances
so likely to prejudice the accused that the cost of litigating their effect in a
particular case is unjustified”?
Unfortunately, as far as I can tell, no magical formula can tell us in every
given case precisely where the breaking point is. But that does not mean we
cannot meaningfully draw a probability line. After all, when we speak of structural
error, we are talking about probabilities, not certainties. We must therefore
conduct a probability assessment without respect to the particular facts of a given
case because errors qualify as structural categorically. See Neder, 527 U.S. at 14.
192
Case: 12-15093 Date Filed: 04/26/2017 Page: 193 of 281
1. In the most basic and literal way, the denial of counsel in a
single-defendant case during the taking of directly inculpatory
evidence undermines the adversarial process itself.
To conduct our probability assessment, we begin by reviewing why the
Supreme Court delineated a category of structural errors in the first place: to make
certain that the constitutional framework of procedural protections necessary for a
fair trial remains intact. The Court was careful to note this broader goal in Cronic
itself, in the specific context of the right to counsel: “the right to the effective
assistance of counsel is recognized not for its own sake, but because of the effect it
has on the ability of the accused to receive a fair trial.” 466 U.S. at 658. So a
presumptively prejudicial error is one that is highly likely to have “some effect . . .
on the reliability of the trial process.” Id.
In other words, it is one that is highly likely to “affect[] the framework
within which the trial proceeds.” Fulminante, 499 U.S. at 310. When we speak of
this “framework,” we refer at a minimum to the anatomical features of the basic
trial the Constitution envisions, unless a defendant chooses otherwise: an impartial
jury, properly instructed on the prosecution’s burden of proving the defendant
guilty beyond a reasonable doubt, see Sullivan v. Louisiana, 508 U.S. 275 (1993);
an impartial judge, see Rose, 478 U.S. at 577 (citing Tumey v. Ohio, 273 U.S. 510
(1927)); and, of course, the “Assistance of Counsel for . . . defence,” U.S. Const.
193
Case: 12-15093 Date Filed: 04/26/2017 Page: 194 of 281
amend. VI; see Cronic, 466 U.S. at 653 n.7 (1984) (citing Gideon v. Wainwright,
372 U.S. 335, 344 (1963)).
The significance of Cronic—and the defining feature of “Cronic error”—lies
in identifying a particular way in which denial of counsel so seriously affects the
defendant’s ability to receive a fair trial that prejudice must be presumed. Under
Cronic, a denial of counsel requires the presumption of prejudice when “an actual
breakdown of the adversarial process” occurs during trial. Id. at 657-58. “[I]f the
process loses its character as a confrontation between adversaries,” id. at 656-57,
then the framework for trial envisioned by the Constitution collapses. See
Fulminante, 499 U.S. at 310; see also Framework, The American Heritage
Dictionary of English Language (4th ed. 2000) (defining “framework” as a
“structure for supporting . . . something else”).
So our line must account for the crucial role that counsel plays in our trial
framework. At no time is this role more important than during the taking of
inculpatory evidence. Indeed, the taking of inculpatory evidence is perhaps the
most critical part of the trial. Wilson Op. at 241-43. Only evidence can convict an
accused. So any tolerable absence cannot be too great before a trial loses its
structural integrity as a “trial” under our Constitution. See Cronic, 466 U.S. at
656-59.
194
Case: 12-15093 Date Filed: 04/26/2017 Page: 195 of 281
When counsel is absent for any non-de minimis period during the taking of
evidence, it is also, no doubt, obvious to the jurors and any spectating members of
the public as well. This problem likewise causes dangerous cracks in our trial’s
foundation because it conflicts with the court’s “independent interest in ensuring
that criminal trials are conducted within the ethical standards of the profession and
that legal proceedings appear fair to all who observe them.” Gonzalez-Lopez, 548
U.S. at 152 (emphasis added) (internal quotation marks omitted); see Wilson Op. at
263 (quoting Indian v. Edwards, 554 U.S. 164, 177 (2008) (citation omitted)).
A lengthy absence of counsel may, as Judge Wilson points out, see id. at
236-37, cause the jury to develop its own ideas about the significance of defense
counsel’s absence from trial—that defense counsel may not believe in the
defendant’s case, that the court thinks so little of the defendant or his counsel that
it does not deem it worthwhile to wait for counsel before beginning, that the case
itself is unimportant and not worthy of the formality otherwise attached to criminal
trials, or that any number of other unfair ideas justify resuming trial in the absence
of defense counsel. While I do not suggest that juries do not follow instructions to
consider only the admitted evidence, that does not mean that factors such as these
have no subconscious effect on their thinking. Indeed, I see no reason why these
unfair prejudices would be any less threatening to the rights of the accused than the
195
Case: 12-15093 Date Filed: 04/26/2017 Page: 196 of 281
ones that the Federal Rules of Evidence explicitly seek to avoid. See, e.g., Fed. R.
Evid. 403.
Nor does the fact that a record of what happened while our judicial structure
caved in on itself during the absence of counsel somehow remedy this framework
problem. See Maj. Op. at 64 (suggesting that the fact that what counsel missed in
his absence can be determined “should bear heavily on whether to presume
prejudice”). So in order to account for the trial-framework problem, any absence
must be brief to avoid rising to the level of Cronic error.
Yet Cronic’s use of the phrase “an actual breakdown of the adversarial
process” contemplates more than the momentary unavailability of counsel. As
Cronic explains, “The right to the effective assistance of counsel is . . . the right of
the accused to require the prosecution’s case to survive the crucible of meaningful
adversarial testing.” 466 U.S. at 656. And “meaningful adversarial testing” can
occur at trial even if counsel is absent for a brief period.
Indeed, some absences may be so short that they cannot fairly be viewed by
any measure as affecting the framework within which the trial proceeds because
defense counsel is present to provide assistance throughout literally nearly all of
trial. To take an extreme example, if counsel misses five seconds of testimony, the
trial structure itself does not collapse. Rather, the trial maintains its character as an
adversarial proceeding. Little occurs in counsel’s absence, and we can easily
196
Case: 12-15093 Date Filed: 04/26/2017 Page: 197 of 281
evaluate the significance of the five seconds’ worth of testimony taken. A jury is
similarly unlikely to draw negative inferences from such an absence. Presuming
prejudice under these circumstances makes little sense. The same is true of
slightly longer absences, up to a few minutes. For the reasons I have discussed,
though, soon after that, counsel’s absence necessarily begins to cause “an actual
breakdown of the adversarial process,” since our trial framework can withstand
one of its structural pillars missing for only so long before it starts to crumble
irreparably. See Cronic, 466 U.S. at 657-58.
2. Evaluating the effects of counsel’s absence during the taking of
inculpatory evidence at a single-defendant trial becomes
challenging or impossible the longer the absence persists.
Second, we must draw our line at a point before the absence has lasted long
enough to interfere with our ability to assess its effects. See Gonzalez-Lopez, 548
U.S. at 149 n.4 (noting that “the difficulty of assessing the effect of the error” is a
basis for identifying structural error). As with the trial framework’s tolerance of
counsel’s absence, that point arrives soon after the absence begins.
Although the Majority opinion concludes that the harm resulting from
counsel’s absence is limited to the erroneous admission of evidence, see Maj. Op.
at 54-55 (quoting Satterwhite v. Texas, 486 U.S. 249, 257-58 (1988)), that
conclusion does not recognize either the harm to the trial framework that I have
discussed above or the harm to the full scope of counsel’s representation that can
197
Case: 12-15093 Date Filed: 04/26/2017 Page: 198 of 281
occur when more than a brief absence happens.8 Judge Wilson eloquently makes
these points in his Dissent. See Wilson Op. at 238-40.
As Judge Wilson notes, see id., counsel’s responsibility during trial does not
consist solely of keeping out objectionable evidence. Defense counsel orchestrates
the entire defense, of which challenging objectionable evidence is but a single part.
8
The Majority opinion’s reliance on Fulminante, 499 U.S. at 306-07, and cases it cites to
demonstrate that the erroneous admission of evidence is subject to harmless-error review is
flawed for the same reasons. See Maj. Op. at 76-77. The kinds of error at issue in Fulminante
and the cases it cites tell us nothing about whether the absence of counsel during part of trial
constitutes structural error. Not one of the opinions identified in Fulminante indicates that
counsel was not present at the actual trial, when the challenged evidence against the defendant
was admitted. So when the errors in those cases occurred, the structural framework of the trial
was intact and counsel was aware of and able to confront the fallout from the erroneous
admission of evidence, unlike when an absence of counsel occurs in a single-defendant trial
during part of the taking of directly inculpatory evidence. The Majority opinion’s reliance on
Florida v. Nixon, 543 U.S. 175 (2004), Bell, 535 U.S. at 688, and Cronic, 466 U.S. 648, suffers
from a similar problem: counsel was present at trial when the challenged actions occurred. In
fact, it was counsel’s actions during his presence at trial that were at issue in those cases.
Similarly, counsel was present at trial when the errors happened in all of the other cases the
Majority opinion cites in support of its position that harmless-error analysis applies to the
absence-of-counsel error in all but those cases where counsel was absent for a substantial portion
of the trial. See Maj. Op. at 82-93 (citing Hinton v. Alabama, __ U.S. __, 134 S. Ct. 1081 (2014)
(per curiam); Harrington v. Richter, 562 U.S. 86 (2011); Banks v. Dretke, 540 U.S. 668 (2004);
Strickler v. Greene, 527 U.S. 263 (1999); United States v. Bagley, 473 U.S. 667 (1985); Jones v.
Butler, 778 F.3d 575 (7th Cir. 2015); Barwick v. Sec’y, Fla. Dep’t of Corr., 794 F.3d 1239 (11th
Cir. 2015); United States v. Travillion, 759 F.3d 281 (3d Cir. 2014); Gissendaner v. Seaboldt,
735 F.3d 1311 (11th Cir. 2013); Roberts v. Comm’r, Ala. Dep’t of Corr., 677 F.3d 1086 (11th
Cir. 2012); Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271 (11th Cir. 2012); Boyd v.
Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320 (11th Cir. 2012); United States v. Orr, 636 F.3d 944
(8th Cir. 2011); Pietri v. Fla. Dep’t of Corr., 641 F.3d 1276 (11th Cir. 2011); Moore v. Marr,
254 F.3d 1235 (10th Cir. 2001); Fugate v. Head, 261 F.3d 1206 (11th Cir. 2001); Jackson v.
Herring, 42 F.3d 1350 (11th Cir. 1995); Nixon v. Newsome, 888 F.2d 112 (11th Cir. 1989)).
Indeed, “[h]armless-error analysis . . . presupposes a trial, at which the defendant, represented by
counsel, may present evidence and argument before an impartial judge and jury.” Rose, 478 U.S.
at 578 (emphases added). So the error that happens when counsel is absent at trial when
evidence is entered in error is different in quality and type than the kind that happens when
counsel is present.
198
Case: 12-15093 Date Filed: 04/26/2017 Page: 199 of 281
Among other things, in the heat of trial, defense counsel must make necessary
adjustments to the defense strategy in real time, in light of the happenings in court;
tailor cross-examination of witnesses, in part, to the witnesses’ testimony on direct
examination during trial; evaluate on an ongoing basis the advisability of putting
on and the contents of any defense case, including presenting the defendant to
testify on his own behalf; determine whether to address and, if so, how to account
during closing argument for evidence admitted during trial; respond to questions
and concerns of his client; clear up any misunderstandings his client may have; and
detect and respond to cues from the jury’s demeanor. Cf., e.g., Van Patten, 552
U.S. at 127 n.* (Stevens, J., concurring). When counsel is absent, no one is doing
any of these things, and, if the absence extends for much more than a few minutes,
all of these functions can be impeded even upon counsel’s return.
The Majority opinion’s conclusion that the harm incurred during counsel’s
non-de minimis absence is limited to the erroneous admission of evidence also
ignores the realities of trial. Trial is not like a brick wall, made up of many
fungible parts that can be easily interchanged and reordered with necessarily the
same end result. Trial is a living, developing thing. See Geders, 425 U.S. at 86
(“A criminal trial does not unfold like a play with actors following a script; there is
no scenario and can be none[;] . . . complexities and contingencies [are] inherent in
199
Case: 12-15093 Date Filed: 04/26/2017 Page: 200 of 281
the adversary process.”). What happens or does not happen at one point of a trial
can deeply affect the proceedings that follow.
As a result, in a single-defendant trial, the harm from a non-de minimis
absence of counsel is not confined to a simple erroneous admission of evidence at
trial. Rather, the erroneous admission of evidence in counsel’s absence is but one
manifestation of the harms counsel’s absence inflicts in such circumstances, much
like a cough is often but one symptom of tuberculosis. Considering only the effect
of erroneously admitted evidence during counsel’s non-de minimis absence is a lot
like treating a tuberculosis patient with nothing more than cough drops.
Nor does the Majority opinion’s observation that many of the errors that
might result from counsel’s non-de minimis absence are themselves subject to
harmless-error review (including lost objections, “hampered cross-examination,”
and lost impeachment arguments) remedy the assessment problem. Maj. Op. at 73-
93. Rather, this error-by-error piecemeal analysis misses the forest for the trees: as
counsel’s absence grows longer, we cannot know the precise brew of constitutional
error that’s been allowed to ferment. The Majority opinion would have us hold the
balance of error in equipoise and analyze each particular type of error on its own.
But as the absence grows longer, there is no control for the other types of error that
occurred because of counsel’s absence. We cannot assess the magnitude of a
particular type of error in light of the rest of the evidence, as we must in harmless-
200
Case: 12-15093 Date Filed: 04/26/2017 Page: 201 of 281
error review, because in these circumstances, counsel’s absence injected an
unknowable concoction of error into the trial.
Notably, the speculation in which we must indulge when a non-de minimis
absence occurs is not the type of guided speculation we engage in under, for
example, Strickland, 9 when we evaluate whether counsel’s ineffective choice may
9
While we may assess the effect of ineffective counsel, evaluating the effect of counsel’s
absence when it rises to the level of Cronic error is another matter altogether. When counsel is
present but allegedly ineffective, a transcript of what she did or did not do exists. So we can
compare the choices she actually made against the broad spectrum of alternatives a reasonably
competent attorney could have pursued. And we have a record of what counsel actually did
during the entire trial—including not only how counsel responded to the erroneous admission of
evidence but also how counsel conducted the rest of the trial after the error occurred. Put simply,
we have the tools to allow us to evaluate the effects of the error on the actual defense, in light of
a trial record created when the proceedings met the structural definition of a constitutional
“trial.” As explained above, however, that is not the case when counsel in a single-defendant
trial is absent. Comparison of Cronic and Strickland is also useful for another reason: it vividly
demonstrates some of the other differences between the non-de minimis absent-counsel error that
makes Cronic error structural error and the ineffective assistance of counsel that makes
Strickland error trial error. In Strickland—significantly, issued on the same day as Cronic—the
Supreme Court set up a dichotomy between cases involving the “[a]ctual or constructive denial
of the assistance of counsel altogether,” see supra at 187, which fall within Cronic’s purview,
and those where counsel was present throughout trial but arguably ineffective, which the
teachings of Strickland govern. 466 U.S. at 692-93. We presume prejudice in cases involving
the “[a]ctual or constructive denial of the assistance of counsel altogether” because prejudice is
“so likely that case-by-case inquiry into prejudice is not worth the cost.” Id. at 692. And
violations in this group of cases “involve impairments of the Sixth Amendment right that are
easy to identify and . . . easy for the government to prevent.” Id. In contrast, cases where
counsel was present but arguably ineffective concern alleged errors that the government is not
responsible for, is often not able to identify while they are occurring, and is not able to prevent.
Id. at 693. And unlike error arising from the absence of counsel, alleged errors of ineffective
assistance “cannot be classified according to likelihood of causing prejudice” because they come
in so many varieties. Id. As the Court explained, “an act or omission that is unprofessional in
one case may be sound or even brilliant in another.” Id. As a result, ineffective assistance
cannot be defined precisely enough to put defense attorneys on notice of the conduct to avoid.
Id. But the court and the prosecution can easily identify and avert the taking of directly
inculpatory evidence in the absence of defense counsel in a single-defendant trial by simply
electing not to proceed without defense counsel present.
201
Case: 12-15093 Date Filed: 04/26/2017 Page: 202 of 281
have prejudiced the defendant’s case. Instead, no record exists regarding what
counsel did or did not do, and we have nothing to compare to the vast range of
choices a reasonably competent attorney could have made. We must entirely
imagine the many options available to competent counsel throughout the duration
of counsel’s absence—a task that would be sure to miss some viable alternatives.
Then we must use our imaginations to guess how each possible choice might have
caused counsel to modify his approach to the rest of the defense at trial. This is
pure speculation, three or four times removed from the circumstances
contemplated in Strickland.
Then—and only then—do we arrive at the next part of the speculation: how
counsel’s imagined Neverland 10 performance may have affected the outcome of
the trial. This is like trying to guess how going back in time would affect the
space-time continuum. 11 But our Constitution does not abide a world of imagined
10
J.M. Barrie, Peter Pan, http://www.literatureproject.com/peter-pan/peter-pan_1.htm
(last visited Apr. 13, 2017) (on file with the Eleventh Circuit Clerk’s Office).
11
See Back to the Future (1985); Back to the Future Part II (1989); Back to the Future
Part III (1990). As Christopher Lloyd’s character Dr. Emmett Brown explained in describing
the range of possible consequences, going back in time could have virtually no effect on future
events, or it could “cause a chain reaction that would unravel the very fabric of the space time
continuum, and destroy the entire universe!” Back to the Future Part II, as quoted at
http://www.imdb.com/title/tt0096874/quotes (last visited Apr. 13, 2017) (on file with the
Eleventh Circuit Clerk’s Office). For a more technical explanation of the space-time continuum,
see https://einstein.stanford.edu/content/relativity/q411.html (last visited Apr. 13, 2017) (on file
with the Eleventh Circuit Clerk’s Office).
202
Case: 12-15093 Date Filed: 04/26/2017 Page: 203 of 281
lawyers in alternative universes when it comes to a right so dear as that of
“Assistance of Counsel for [an accused’s] defence.”
Rather, our system can tolerate only a brief absence before our ability to
evaluate the effects of the absence enter this speculative realm. Nevertheless,
some absences are so brief—a few seconds or even minutes—that the effects are
not necessarily incapable of being evaluated. The types of prejudice that might
occur under these circumstances—a particularly prejudicial line of questioning, the
introduction of an especially prejudicial exhibit, an unfair characterization, etc.—
are different in kind than the subtler, more insidious harms introduced by the
longer absence of counsel in a single-defendant trial and are therefore susceptible
of harmless-error review. Counsel’s viable options for dealing with what occurred
in his absence under such circumstances are likewise far more limited than once
the absence extends much more than a few minutes. A very brief absence allows
us to identify what counsel’s options might be upon her return without resorting to
rank speculation. But the universe of options expands exponentially as the period
of absence grows.
So while cutting out the localized cancer of a very brief absence is possible,
the effects of an absence metastasize throughout the trial in ways that are no longer
readily identifiable once the length of absence lasts longer than a few minutes. As
a result, unlike with a very brief absence, the likelihood of prejudice from an
203
Case: 12-15093 Date Filed: 04/26/2017 Page: 204 of 281
absence that lasts more than a few minutes substantially increases, and the ability
to identify the resulting prejudice markedly decreases. This factor likewise
supports drawing a line that differentiates absences that are just a few minutes from
those lasting longer.
3. Because the taking of directly inculpatory evidence in counsel’s
absence in a single-defendant trial quickly becomes highly
likely to result in prejudice, and detecting the absence of
counsel in a single-defendant trial is extremely easy, the point
where it is not worth litigating the effects of this category of
error in a given case must come not long after counsel’s
absence begins.
The miniscule costs associated with setting the threshold for structural error
in absence-of-counsel cases shortly after counsel’s absence begins in a single-
defendant trial also warrants drawing a line not long after counsel’s absence
begins.
For the reasons I have already described, counsel’s absence in a single-
defendant trial during the taking of directly inculpatory evidence will quickly
introduce a significant and unquantifiable mix of prejudice into a single-defendant
trial. Yet absent defense counsel during the taking of inculpatory evidence in a
single-defendant trial is an error that is “easy to identify” and therefore “easy for
the government [including the court and the prosecution] to prevent”—not
coincidentally another hallmark of structural error. Strickland, 466 U.S. at 692.
204
Case: 12-15093 Date Filed: 04/26/2017 Page: 205 of 281
The utter lack of any defense counsel at the start of trial proceedings should be
immediately obvious to both the judge and the prosecution.
First, we are not speaking of some trivial technical requirement. We are
talking about a fundamental constitutional right that should be—and no doubt is—
always at the tops of the minds of the trial judge and the prosecution during trial:
the right to counsel. Indeed, as I have noted, the court has an affirmative
obligation to protect a defendant’s right to counsel during trial. See supra at 189-
90 (citing Gainey, 380 U.S. at 68; Glasser, 315 U.S. at 71).
Second, we are not looking for a needle in a haystack. Visually, the absence
of counsel is stunningly obvious. Detecting the absence of sole counsel in a single-
defendant trial is as straightforward as looking at the defense table. When no
defense counsel is present in the courtroom, only one person sits at the defense
table—the defendant—and counsel’s absence is conspicuous.
Third, judges can and often do ask counsel for both parties whether they are
ready to proceed before bringing in the jury. Even if a judge and prosecutor do not
notice the absence of counsel before the inquiry, the lack of a response from
defense counsel at that time would certainly alert them to counsel’s absence.
But perhaps the greatest indication that the error is “easy to identify”
consists of the fact that neither the Majority opinion nor the parties are able to cite
a single case other than Roy’s where directly inculpatory evidence was taken in the
205
Case: 12-15093 Date Filed: 04/26/2017 Page: 206 of 281
absence of sole counsel in a one-defendant trial. Simply put, this error is so
obvious that it quite literally almost never happens. 12 And because district courts
and the prosecution are so well attuned to the need for counsel’s presence in a
single-defendant trial that they are highly likely to notice counsel’s absence
immediately or, at worst, very shortly after trial resumes, drawing the structural-
error line not long after counsel’s absence begins in a single-defendant trial
imposes virtually no costs.
4. Consideration of all of the factors that cause counsel’s absence
during a single-defendant trial to merit a presumption of
prejudice supports drawing the line between trial error and
structural error at counsel’s absence that lasts for more than ten
minutes or 1% of the combined “critical stages” of trial.
All of the factors in determining when a presumption of prejudice is
appropriate in absent-counsel cases have at least one thing in common: they all
point to a very low threshold of tolerance for absence of counsel during a “critical
stage” of a one-defendant trial before the absence crosses the line from trial error
to structural error. But that threshold is not zero. Rather, for the reasons I have
explained, harmless-error analysis can effectively and appropriately be performed
when counsel’s absence lasts only a few minutes.
12
For this reason, the Majority opinion’s invocation of United States v. Noriega, 117
F.3d 1206 (11th Cir. 1997), see Maj. Op. at 58-60, actually bolsters the point. Even in seven
months of trial, the opinion does not indicate that counsel was absent for a single second of the
taking of directly inculpatory evidence.
206
Case: 12-15093 Date Filed: 04/26/2017 Page: 207 of 281
So the probability line where an absence becomes long enough to create
“circumstances that are so likely to prejudice the accused that the cost of litigating
their effect in a particular case is unjustified” must be drawn soon after counsel’s
absence spans more than a few minutes. And since this line must be ascertainable
in any case without requiring any type of actual prejudice review of the record, I
would draw the line when counsel is gone in a single-defendant trial at the lesser of
either more than ten minutes or more than 1% of the combined critical-stage
portions of trial. When ten minutes constitutes 1% or less of the combined critical
stages of trial, the period is brief enough that the admitted evidence is relatively
little, counsel can quickly and easily learn what he has missed and adjust his
strategy accordingly, and the appearance of fairness and integrity in the trial is not
undermined. A jury may reasonably infer, for example, that counsel has simply
stepped out to use the restroom or check on a witness.
Though the period where an absence truly becomes structural error is surely
greater than ten minutes or 1% of the taking of evidence, the probability of
diminishing returns from attempting to conduct a prejudice analysis begins to
increase significantly not long after counsel’s absence lasts for ten minutes or 1%
of the trial. And since we cannot identify a strict cutoff that necessarily includes
only trial errors on one side and only structural errors on the other, we must err on
the side of including some trial-error absences in the structural-error category,
207
Case: 12-15093 Date Filed: 04/26/2017 Page: 208 of 281
rather than the other way around. After all, we are discussing a constitutional
violation that is serious enough and the effects of which are difficult enough to
assess that where it is found, prejudice is presumed. And, significantly, it is an
error that is easily preventable, so the costs of setting a low threshold are
negligible.
When we apply this line to Roy’s case, we find that his case involves an
absence that does not cause a breakdown of the adversarial process or any other
damage to the fundamentally fair character of his trial. The counsel’s absence in
Roy’s case did not create “circumstances that are so likely to prejudice the accused
that the cost of litigating their effect in a particular case is unjustified.”
Roy’s counsel was absent for a total of seven minutes, so he was missing for
less than ten minutes of the total of all critical stages of trial. And as a percentage
of the total critical stages of trial, those seven minutes amounted to less than 1%.
Counsel’s absence therefore falls on the trial-error side of the error line. 13 As a
result, we conduct harmless-error review in Roy’s case.
13
Judge Wilson and Judge Martin take issue with drawing a precise, numerical line
between trial error and structural error. That is a fair point. But Cronic expressly calls for a
probability assessment. And the mere fact that the precise place to draw the line between the two
types of error may not be immediately obvious does not mean that a category of absence that
constitutes only trial error does not exist. We account for the lack of a readily discernible cutoff
by drawing a line that necessarily includes all absences that could fairly be characterized as
causing a breakdown of the adversarial process as doing so, even though it will also include
some absences that do not so qualify on that side (e.g., 11 minutes in an 8-month trial). The cost
of overinclusion in the structural-error category is, as a practical matter, extremely low, given the
208
Case: 12-15093 Date Filed: 04/26/2017 Page: 209 of 281
Nevertheless, the mere fact that a case may be susceptible of harmless-error
review does not mean, of course, that any error is necessarily harmless. To the
contrary, where harmless-error review applies, the court must be convinced that
“on the whole record . . . the error . . . [is] harmless beyond a reasonable doubt.”
Rose, 478 U.S. at 583 (citation and quotation marks omitted). If the court cannot
satisfy itself in this way—either because the record suggests that the error was not
harmless beyond a reasonable doubt or because the record as a whole does not
provide sufficient information to allow a determination to be made—even a trial-
error absence will require reversal and remand for a new trial.
But that is not the case here. As the Majority ably explains, the record here
clearly demonstrates that Roy’s counsel’s trial-error absence was harmless beyond
a reasonable doubt.
III. The fact that a brief absence of counsel during part of a “critical stage”
of a single-defendant trial quickly rises to the level of Cronic error does
not necessarily mean that the same thing is true in a multi-defendant
trial.
The Majority opinion worries that recognizing that the structural-error
threshold is low for counsel’s absence during trial in a single-defendant trial means
that the threshold must be set equivalently low in multi-defendant trials. This
fact that holding trial without defense counsel in a single-defendant case almost never happens.
See supra at 204-07.
209
Case: 12-15093 Date Filed: 04/26/2017 Page: 210 of 281
question is not before us, so I do not offer an opinion on it. Nevertheless, I express
some thoughts as to why I do not share the Majority opinion’s concerns, homing in
on the factors that determine whether an absence of counsel during a critical stage
of trial is structural error in the first place.
Beginning with the basic trial framework, when one or more defense
lawyers are present during a multi-defendant trial, the overall trial structure itself at
least arguably remains intact, even if other defense counsel are absent. That is,
some licensed attorney serves in an adversarial role against the prosecution and
might, as a practical matter, simultaneously assist in the defense of other
defendants while acting on behalf of her own client. 14 But when a single defendant
has no counsel whatsoever where directly inculpatory evidence is offered,
courtroom proceedings do not even look like a “trial” as our Constitution envisions
it, and counsel’s absence very quickly rises to the level of Cronic error. No one is
present to assist even theoretically in the accused’s defense.
Second, while the absence of a particular defendant’s attorney is still
ascertainable when multiple defendants and defense counsel are present, one
14
Of course, the Sixth Amendment entitles each defendant to his own counsel. And
where counsel labors under an actual conflict of interest at trial, that circumstance constitutes
structural error. See Satterwhite, 486 U.S. at 256-57 (citing Holloway, 435 U.S. at 490-91). But
many times, multiple defendants’ defenses are not inconsistent with one another. In addition,
counsel sometimes agree to cover for each other with their clients’ permission. When these
conditions exist, the breakdown in the trial process that might occur otherwise in a single-
defendant trial simply does not occur.
210
Case: 12-15093 Date Filed: 04/26/2017 Page: 211 of 281
defendant’s sole missing defense attorney at a table of, for example, five
defendants and seven counsel, 15 is not as visually conspicuous as a sole
defendant’s appearance all alone at the defense table during trial. As a result, the
point where the proceedings cease to appear like a constitutional trial to the jury
and public is certainly higher and, depending on the circumstances, possibly non-
existent.
Third, although the effect on the proceedings of a single defendant’s
counsel’s longer absence in a multi-defendant trial may still be challenging and
difficult to assess, at least we can review a record of how some defense counsel
reacted to the questioning, the jury, and, where applicable, the client during the
absence, so our speculation is not necessarily entirely imagined, and some form of
a Strickland-type of analysis of the present attorney’s actions may perhaps be
possible. Similarly, at least the defendant’s absent counsel can consult a
professionally trained, defense-oriented person (a defense attorney who was
present during the absence) about what transpired in his absence, so he can adjust
his defense accordingly. These things are not even possibilities where counsel is
absent for a non-de minimis portion of the taking of inculpatory evidence in a
single-defendant trial.
15
Sometimes a defendant chooses to be represented by more than one attorney.
211
Case: 12-15093 Date Filed: 04/26/2017 Page: 212 of 281
Fourth, multi-defendant trials are often significantly longer than single-
defendant trials. If counsel for more than one defendant in a multi-defendant trial
is absent for more than a brief period of the taking of directly inculpatory evidence,
the cost and effort of attempting to evaluate the record for harmless error may be
justifiable in a way that it is not many single-defendant trials.
For these reasons, I respectfully disagree with the Majority opinion that
recognizing Cronic error when counsel is briefly absent during part of a single-
defendant trial dictates that counsel’s brief—or even longer—absence in a multi-
defendant trial would then also necessarily qualify as Cronic error or some other
type of structural error.
IV. The Majority opinion’s solution for determining when counsel’s absence
during part of a “critical stage” constitutes structural error is flawed
because it is not categorical and because it sets too high a threshold for
structural error when counsel is denied during a single-defendant trial.
The Majority opinion holds that counsel’s absence during part of trial rises
to the level of structural error when counsel misses a “substantial portion of the
trial,” determined “on a case-by-case basis considering, among other factors, the
length of time counsel was out, the proportion of the trial missed, and the
significance of what he missed.” See Maj. Op. at 70-71. It further suggests
through its analysis that a “substantial portion of the trial” is a relatively long
period. In my view, both of these conclusions are inconsistent with the Supreme
Court’s jurisprudence on structural error involving the denial of counsel.
212
Case: 12-15093 Date Filed: 04/26/2017 Page: 213 of 281
First, as I have mentioned, the Supreme Court has cautioned against
“import[ing] into the initial structural-error determination (i.e., whether an error is
structural) a case-by-case approach that is more consistent with our traditional
harmless-error inquiry (i.e., whether an error is harmless). Under [the Supreme
Court’s] cases, a constitutional error is either structural or it is not.” Neder, 527
U.S. at 14 (characterizing the Supreme Court’s “traditional . . . approach to
structural errors” as “categorical”).
And this makes sense. If determining in the first place whether a type of
error was structural or trial required an analysis of actual prejudice in a given case,
it would not differ from harmless-error analysis: in any case where error was
actually assessable but was, beyond a reasonable doubt, harmless to the defendant,
the error would be harmless, and in any case where the prejudice inflicted by the
error was either not assessable or demonstrably resulted in prejudice to the
defendant, the error would be harmful.
But that’s not how the dichotomy between structural error and trial error
works. Rather, structural-error jurisprudence recognizes fundamental errors and
requires us to make a probability determination that the existence of that type of
error in general creates “‘circumstances . . . that are so likely to prejudice the
accused that the cost of litigating their effect in a particular case is unjustified.’”
Van Patten, 552 U.S. at 124 (quoting Cronic, 466 U.S. at 658). Engaging in any
213
Case: 12-15093 Date Filed: 04/26/2017 Page: 214 of 281
attempt to calculate the actual prejudicial effects of a type of error to determine
whether, in a given case, it qualifies as structural in nature defeats the purpose of
categorizing particular types of errors as structural.
The Majority opinion’s solution to when structural error occurs, however,
expressly calls for “case-by-case . . . consider[ation], [accounting for,] among
other factors, the length of time counsel was out, the proportion of the trial missed,
and the significance of what he missed.” Maj. Op. at 71 (emphasis added). This
approach necessarily requires the court to conduct some type of individualized
assessment of prejudice in a given case to determine whether the error as presented
in that case constitutes structural error, even though the Supreme Court has warned
against delineating the parameters of a category of structural error by assessing the
evidence adduced in a particular case.
Besides this problem, the Majority opinion’s approach employs a balancing
test, so it will necessarily yield conflicting results concerning whether an absence
qualifies as structural error, depending on who applies the test, how the judge
construes each factor, and how she or he weighs the test’s factors. For example,
what length of absence is too long and how do we decide? What proportion of trial
is too great? How do we judge the “significance of what [counsel] missed”? Is
determining the “significance of what [counsel] missed” some form of a mini-
harmless-error inquiry? How do we balance the four expressly named
214
Case: 12-15093 Date Filed: 04/26/2017 Page: 215 of 281
considerations against each other? What other factors should be considered, and
how are they weighed in the balance?
And since knowing what counsel missed is “at least as important” a factor as
the other three and “should bear heavily on whether to presume prejudice,” see id.
at 64, does it outweigh a longer absence that comprises a good percentage of the
trial? Different judges applying the substantial-portion-of-the-trial factors will, of
course, arrive at different conclusions about whether structural error has occurred
in any given case—a red flag that the line for structural error has not been
categorically drawn.
Nor does the Majority opinion’s application of the substantial-portion-of-
the-trial test to Roy’s facts provide much guidance. Instead, it simply observes that
we know what counsel missed and reduces counsel’s absence to numbers:
Roy’s counsel missed only seven minutes of a trial that
lasted 1,884 minutes or 31.4 hours (not counting recesses
and jury deliberations), which is less than one-half of one
percent of trial time. He missed only 18 answers that
were given by one of the government’s 13 witnesses who
collectively gave a total of approximately 2,745 answers,
meaning he missed less than one percent of the total.
And we know exactly which questions and answers he
missed. His physical absence was far more momentary
and far less substantial than any in the five cases that our
sister circuits have decided under the substantial portion
standard. We have no trouble concluding that Roy’s
counsel did not miss a substantial portion of the trial.
Id. at 72-73.
215
Case: 12-15093 Date Filed: 04/26/2017 Page: 216 of 281
Other than the fact that the Majority opinion adjudged Roy’s counsel’s
absence “far more momentary and far less substantial than any in the five cases
that our sister circuits have decided under the substantial portion standard,” we
don’t know how the Majority weighed the factors against each other; how
“miss[ing] only 18 answers that were given by one of the government’s 13
witnesses who collectively gave a total of approximately 2,745 answers, meaning
he missed less than one percent of the total,” tells us the “significance of what
[counsel] missed” any more than the number of minutes missed and the percentage
of trial missed; what other factors we should consider when conducting this
analysis; or when the fact that a record of what counsel missed exists ceases to
support harmless-error review. And in the cavernous abyss between Roy’s 7-
minute absence and the other circuits’ substantial-portion-of-the trial cases, where
the attorney slept for either more than a day or slept repeatedly for several minutes
at a time throughout the entire trial, we don’t know where a trial-error absence
becomes a structural-error absence.
The Majority opinion’s substantial-portion-of-the-trial test also suffers from
another problem: it significantly undervalues the right to counsel during trial, so it
sets the bar too high for when counsel’s absence crosses the threshold from trial
error to structural error. As I have previously explained, the right to counsel
during trial is essential under our system of justice, and it does not take long for
216
Case: 12-15093 Date Filed: 04/26/2017 Page: 217 of 281
counsel’s absence from part of trial to create serious, exponentially multiplying
problems “that are so likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified.” See supra at 194-205; Cronic, 466 U.S.
at 658. For this reason, only a brief absence can be tolerated in a single-defendant
trial before the likelihood of prejudice greatly outweighs the benefits of attempting
to engage in a prejudice analysis.
The Majority opinion turns the significance of the right to counsel during a
single-defendant trial upside down, essentially creating a rule under which
counsel’s absence—even for long periods—constitutes nothing more than trial
error, except in the most extreme circumstances. But the right to counsel—
particularly during trial—is absolutely fundamental to our system of justice. A
single-defendant trial where counsel is absent for more than a very brief period
inflicts great damage upon our system of justice; it is antithetical to it, to our sense
of fairness, and to the reliability of any resulting verdict. Does the fact that we
know what happened when counsel was gone somehow negate the deleterious
effects on the trial framework of a long absence that comprises a good percentage
of the trial? I think not.
And because of the ease with which defense-counsel absences in a single-
defendant trial can and should be prevented, even less justification exists for
tolerating anything more than counsel’s very brief absence. Since the substantial-
217
Case: 12-15093 Date Filed: 04/26/2017 Page: 218 of 281
portion-of-the-trial test that the Majority opinion adopts today to determine
whether an attorney’s absence qualifies as structural error does not sufficiently
value the right to counsel during a single-defendant trial, I respectfully disagree
with that standard.
V. Conclusion
So I end where I began. I concur in the Majority’s conclusion that the error
in this case was harmless because it was not long enough to rise to the level of
Cronic error, and the record shows it to have been harmless beyond a reasonable
doubt.
But in a single-defendant trial, the non-de minimis absence of counsel
creates “circumstances that are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified.” It collapses the
constitutional framework of the trial; is easily identifiable and preventable by the
court and the government; introduces an unknowable mix of error into the trial that
is so likely to prejudice a defendant that assessing its effects in any given case is
not worthwhile; and renders the trial process unreliable amounts to structural error
under Cronic. Based on these considerations, I would draw the line between trial-
error absences and structural-error absences at the point where an absence lasts for
more than ten minutes or 1% of the total “critical stages” of trial. In my view, this
approach comports with Cronic, the categorical nature of structural error as the
218
Case: 12-15093 Date Filed: 04/26/2017 Page: 219 of 281
Supreme Court has explained it, and the importance of the right to counsel during
trial..
219
Case: 12-15093 Date Filed: 04/26/2017 Page: 220 of 281
WILSON, Circuit Judge, dissenting:
The Constitution guarantees criminal defendants a fair trial. That guarantee
does not require a perfect trial—it simply demands a trial that affords defendants a
few basic protections. The most critical of those protections is the right to counsel.
See United States v. Cronic, 466 U.S. 648, 654, 104 S. Ct. 2039, 2044 (1984) (“Of
all the rights that an accused person has, the right to be represented by counsel is
by far the most pervasive for it affects his ability to assert any other rights he may
have.” (internal quotation marks omitted)). “The very premise of our adversary
system of criminal justice is that partisan advocacy on both sides of a case will best
promote the ultimate objective that the guilty be convicted and the innocent go
free.’” Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 2555 (1975).
Absent defense counsel, the trial process transforms from an adversarial
search for truth to a one-sided prosecutorial campaign. Such a proceeding is
incompatible with the Constitution’s commitment to due process. “While a
criminal trial is not a game in which the participants are expected to enter the ring
with a near match in skills, neither is it a sacrifice of unarmed prisoners to
gladiators.” Cronic, 466 U.S. at 657, 104 S. Ct. at 2046 (internal quotation marks
omitted).
In stark contrast to the adversarial process and attendant protections
demanded by the Constitution, the trial here proceeded while the defendant’s sole
220
Case: 12-15093 Date Filed: 04/26/2017 Page: 221 of 281
counsel was absent. The defendant sat alone at counsel’s table in the presence of
the jury; defense counsel was nowhere to be seen. There were no other defendants
or defense counsel present. Nonetheless, the trial judge reconvened the
proceedings earlier than scheduled, and the skilled prosecutor introduced the
testimony of the government’s key witness—a law enforcement computer
forensics expert—with the defendant still alone at counsel’s table. The testimony
was directly inculpatory, used to convict the defendant of federal felony charges
and to sentence him to life in prison.
This type of one-sided proceeding is an affront to the integrity of our system
and a violation of the defendant’s rights to a fair trial and to counsel.
Correlatively, such a serious constitutional error is unique in that it alters the
structure of the trial itself, resulting in consequences that are both immeasurable
and likely extremely prejudicial. For that reason, I believe the error amounts to
structural error, requiring automatic reversal and new, constitutionally-compliant
proceedings. The Constitution does not demand that the defendant go free—rather,
it demands that, prior to being deprived of his liberty, the defendant receive a trial
with the basic protections to which he is entitled.
The Majority, however, does not view the circumstances here as so serious a
constitutional violation and so damaging a blow to the integrity of the trial process
as I do. The disagreement between the Majority and myself centers on the scope
221
Case: 12-15093 Date Filed: 04/26/2017 Page: 222 of 281
of structural error and what constitutes Cronic error. A constitutional violation is a
structural error if the violation undermines the basic guarantee of fairness, resulting
in a strong potential for prejudice and immeasurable effects. Cronic error is a
specific type of structural error—it arises when a defendant is denied counsel at a
“critical stage” of the proceedings.
I believe that the denial of counsel during the introduction of inculpatory
evidence by a key prosecution witness constitutes structural error. The guiding
structural-error criteria, as well as Cronic, lead me to this conclusion. By calling
such an error harmless trial error, the Majority affirmatively holds that the
introduction of inculpatory evidence in counsel’s absence is an “unimportant and
insignificant” constitutional error. See Chapman v. California, 386 U.S. 18, 22, 87
S. Ct. 824, 827 (1967). The Majority reaches this conclusion by improperly
performing the structural-error analysis required under Supreme Court precedents.
Because the Majority’s analysis departs from those precedents and reaches a result
at odds with the basic premises of the Constitution, I respectfully dissent.
I.
The combined force of the Fifth and Sixth Amendments of the United States
Constitution guarantees all federal criminal defendants the right to a fair trial.
Under the Fifth Amendment, a fair process is required before a defendant’s liberty
can be taken away. When a trial court impedes a defendant’s ability to obtain the
222
Case: 12-15093 Date Filed: 04/26/2017 Page: 223 of 281
“guiding hand of counsel at every step in the proceedings against him,” it violates
the due process guarantee of the Fifth Amendment. See Brooks v. Tennessee, 406
U.S. 605, 612, 92 S. Ct. 1891, 1895 (1972) (quoting Powell v. Alabama, 287 U.S.
45, 69, 53 S. Ct. 55, 64 (1932)). Furthermore, the Supreme Court has repeatedly
emphasized the fundamental nature of the Sixth Amendment right to counsel—it is
this right that preserves the defendant’s other rights and the integrity of the judicial
system itself. See, e.g., Cronic, 466 U.S. at 656, 104 S. Ct. at 2045; Kaley v.
United States, 571 U.S. __, __, 134 S. Ct. 1090, 1107 (2014) (Roberts, C.J.,
dissenting) (“In many ways, [the Sixth Amendment right to counsel] is the most
precious right a defendant has, because it is his attorney who will fight for the
other rights the defendant enjoys.”); see also Stano v. Dugger, 921 F.2d 1125,
1170–71 (11th Cir. 1991) (en banc) (Tjoflat, J., dissenting) (“[T]he right to counsel
is a fundamental component of the criminal justice system” because counseled
representation protects “the very integrity of our system—its fairness, its accuracy
as a truth-seeking process, and thus its ability to accord justice.”).
A criminal defendant who has been denied counsel cannot—by that very
measure—have received a fair trial because “lawyers in criminal courts are
necessities, not luxuries.” Gideon v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792,
796 (1963). The Constitution calls on the courts to vigilantly ensure that this right
is upheld, and we, as judges, must “indulge every reasonable presumption against
223
Case: 12-15093 Date Filed: 04/26/2017 Page: 224 of 281
waiver” of the right. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023
(1938). Indeed, “the right to the assistance of counsel has been understood to
mean that there can be no restrictions upon the function of counsel in defending a
criminal prosecution in accord with the traditions of the adversary factfinding
process that has been constitutionalized.” Herring, 422 U.S. at 857, 95 S. Ct. at
2553.
The admission of inculpatory evidence against a defendant while his counsel
is absent violates these fundamental rights. The core issue presented here is
whether that constitutional violation is structural or trial error. The Supreme Court
has held that all criminal defendants are entitled to a trial free from error that calls
into question the fairness of the proceeding because such an error strikes a blow to
the framework—the structure—of the proceeding itself. See Cronic, 466 U.S. at
657–58, 104 S. Ct. at 2046. This type of constitutional error, known as “structural
error,” occurs when there are “circumstances that are so likely to prejudice the
accused that the cost of litigating their effect in a particular case is unjustified,” id.
at 658, 104 S. Ct. at 2046, or when the effects of the error defy assessment absent
impermissible speculation, see United States v. Gonzalez-Lopez, 548 U.S. 140,
148, 126 S. Ct. 2557, 2564 (2006); Sullivan v. Louisiana, 508 U.S. 275, 281–82,
113 S. Ct. 2078, 2083 (1993) (noting that structural errors are “necessarily
unquantifiable and indeterminate”).
224
Case: 12-15093 Date Filed: 04/26/2017 Page: 225 of 281
When structural error occurs, the courts must presume prejudice and reverse
for a new trial. See Cronic, 466 U.S. at 659 & n.25, 104 S. Ct. at 2047 & n.25
(“[Structural error is] constitutional error of the first magnitude and no amount of
showing of want of prejudice w[ill] cure it.” (internal quotation marks omitted)).
Automatic reversal is required because “there are some constitutional rights so
basic to a fair trial that their infraction” infects the entire trial process and “can
never be treated as harmless error.” Chapman, 386 U.S. at 23, 87 S. Ct. at 827–28;
accord Brecht v. Abrahamson, 507 U.S. 619, 629–30, 113 S. Ct. 1710, 1717
(1993). This does not mean a trial on the whole must be unfair for an error to be
structural; rather, structural error exists when the defendant has been denied “a
particular guarantee of fairness.” See Gonzalez-Lopez, 548 U.S. at 146, 126 S. Ct.
at 2562.1
1
Gonzalez-Lopez involved the absence of a particular guarantee of fairness—the right to
have counsel of one’s choosing at trial. The Court held that the denial of the defendant’s choice
of counsel resulted in a structural defect in the proceedings, requiring vacatur of the conviction.
Gonzalez-Lopez, 548 U.S. at 152, 126 S. Ct. at 2566. In determining that the denial of counsel of
one’s choosing implicates the constitutional guarantee of fairness, the Supreme Court indicated
that counsel need not be entirely deprived in order to trigger the Sixth Amendment’s protection.
Consequently, Gonzalez-Lopez provides important foundation for this case: if the
guarantee-of-fairness consideration was relevant where some counsel was present, just not the
one chosen by the defendant, then surely here, where the defendant had no counsel present to
protect his constitutional rights, the same guarantee-of-fairness consideration applies. Further,
the defendant in this case selected a particular counsel to represent him, and then the court
proceeded without that counsel. Thus, the denial of the defendant’s counsel at trial ipso facto
denied the defendant the right to have present the counsel that he chose. For these reasons, the
circumstances constituting structural error and requiring reversal in Gonzalez-Lopez are
sufficiently analogous to the circumstances presented in this case. Cf. Wright v. Van Patten, 552
225
Case: 12-15093 Date Filed: 04/26/2017 Page: 226 of 281
The Supreme Court has identified several sets of circumstances that
constitute structural error, including the provision of an erroneous reasonable-
doubt instruction, the denial of the right of self-representation, and the denial of the
right to a public trial. See, e.g., Sullivan, 508 U.S. at 280–81, 113 S. Ct. at 2082;
McKaskle v. Wiggins, 465 U.S. 168, 177–78 & n.8, 104 S. Ct. 944, 950–51 & n.8
(1984); Waller v. Georgia, 467 U.S. 39, 49 & n.9, 104 S. Ct. 2210, 2217 & n.9
(1984). In addition, in Cronic, the Court held that the denial of counsel at a
“critical stage” of trial amounts to structural error. See 466 U.S. at 659, 104 S. Ct.
at 2047. The potential for prejudice when counsel is denied during a critical stage
is so great that fairness demands automatic reversal.
This case involves an important type of structural error—the denial of
counsel. 2 See Gonzalez-Lopez, 548 U.S. at 149, 126 S. Ct. at 2564. As noted
above, structural-error analysis turns on the potential for prejudice and whether the
U.S. 120, 125, 128 S. Ct. 743, 746 (2008) (per curiam) (citing Gonzalez-Lopez in describing
Cronic structural error).
2
From the outset, the Majority mischaracterizes the error here as the erroneous admission
of particular evidence at trial, which is an error amenable to harmless-error review. See, e.g.,
Satterwhite v. Texas, 486 U.S. 249, 257, 108 S. Ct. 1792, 1798 (1988). But the general
admissibility of evidence introduced during defense counsel’s absence is not the issue. Instead,
the issue is that a criminal defendant’s sole defense counsel was absent while inculpatory
evidence was admitted to the jury. Those are the circumstances that violated the defendant’s
constitutional rights here; those are the circumstances that create “a serious risk of injustice.”
See Cronic, 466 U.S. at 656, 659 n.25, 104 S. Ct. at 2045, 2047 n.25. Thus, Satterwhite’s rule
does not apply because the nature of the harm is not limited to the specific evidence that was
erroneously introduced. See Rosenbaum, J., concurring, at 196–97.
226
Case: 12-15093 Date Filed: 04/26/2017 Page: 227 of 281
effect of an error is readily assessable. Considering these factors, the absence of
the defendant’s sole counsel during the introduction of inculpatory evidence
undoubtedly constitutes structural error. But, perhaps even more telling, Cronic
also specifically requires a finding that the denial of counsel in these circumstances
amounts to structural error.
A.
The defendant in this case was denied his right to counsel while the jury
heard directly inculpatory evidence, depriving him of a core constitutional
guarantee. As the jury watched, the court departed from the traditional trial
framework of a defendant having counsel by his side while the prosecution offers
evidence against him. Under these circumstances, the denial of counsel yields
strong potential prejudice and the effects of the error are “necessarily
unquantifiable and indeterminate”—gauging the effect requires speculation. Thus,
the circumstances in this case “unquestionably qualif[y] as structural error.” Cf.
Gonzalez-Lopez, 548 U.S. at 149, 126 S. Ct. at 2564 (internal quotation marks
omitted). I broadly address the potential for prejudice and speculative nature of the
effects of this error before turning to the facts of the proceedings below.
A number of Supreme Court cases addressing structural error caused by the
absence of counsel demonstrate that the potential for or likelihood of prejudice is
key to determining which errors are structural. For example, in Hamilton v.
227
Case: 12-15093 Date Filed: 04/26/2017 Page: 228 of 281
Alabama, the Court held that counsel’s absence during the defendant’s arraignment
was structural error. 368 U.S. 52, 54–55, 82 S. Ct. 157, 158–59 (1961). In
reaching this determination, the Court did not require that the defendant provide
any evidence that his plea would have been different had counsel been present; that
is, the Court did not consider whether the defendant was actually prejudiced by
counsel’s absence. Reversal was automatic. Id. at 55, 82 S. Ct. at 159. Likewise,
in White v. Maryland, the Supreme Court automatically reversed the lower court
because the prosecution introduced evidence at trial of a guilty plea that the
defendant entered before he was appointed counsel. 373 U.S. 59, 59–60, 83 S. Ct.
1050, 1051 (1963) (per curiam).
These cases make clear that the potential for prejudice is what results in
structural error. 3 Actual prejudice is not required. In Hamilton, the defendant
never indicated that the presence of counsel at the arraignment actually would have
changed the outcome, and the Court did not analyze this possibility. In White, the
potential for prejudice was sufficient to vacate the conviction, even though the
potential prejudice—admission into evidence of the guilty plea—could have been
3
The importance of the potential for prejudice inquiry also manifests in structural error
cases outside of the denial-of-counsel context. Most recently, in a recusal case, the Supreme
Court indicated that even a “potential for” or “risk of” bias was enough to constitute structural
error. See Williams v. Pennsylvania, 579 U.S. ___, ___, 136 S. Ct. 1899, 1905–07 (2016)
(noting that “the decision [of a prosecutor] to pursue the death penalty is a critical choice in the
adversary process” and reversing based on the risk of bias when a non-recused judge who served
as the supervising prosecutor participates in the subsequent judicial proceedings).
228
Case: 12-15093 Date Filed: 04/26/2017 Page: 229 of 281
mitigated by counsel’s presence and the opportunity to cross-examine. White is
especially informative for what it ultimately found violative of the right to counsel.
There, the potential prejudice arose from the creation of inculpatory evidence in
counsel’s absence.
If the absence of counsel during the creation of inculpatory evidence was
considered structural error in White, it is also structural error for a court to allow
the admission of inculpatory evidence in counsel’s absence. In both
circumstances, the potential for prejudice arises from the potential for the jury to
hear inculpatory evidence in violation of the defendant’s right to counsel. There is
extreme potential for prejudice against a defendant who is left without counsel as
the prosecution presents the jury with incriminating evidence for its consideration.
If allowing a criminal defendant to “stand alone”—in this defendant’s case, truly,
entirely alone—against the government while the prosecution elicits incriminating
testimony does not constitute a structural defect in the proceedings, it is difficult to
envision what would. See United States v. Wade, 388 U.S. 218, 226–27, 87 S. Ct.
1926, 1932 (1967) (“[I]n addition to counsel’s presence at trial, the accused is
guaranteed that he need not stand alone against the State at any stage of the
prosecution, formal or informal, in court or out, where counsel’s absence might
derogate from the accused’s right to a fair trial.” (footnote omitted)). These
“circumstances . . . are so likely to prejudice the accused that the cost of litigating
229
Case: 12-15093 Date Filed: 04/26/2017 Page: 230 of 281
their effect in a particular case is unjustified.” See Cronic, 466 U.S. at 658, 104
S. Ct. at 2046.
The Supreme Court has also indicated that where the impact of a serious
constitutional defect is subject to pure speculation, the defect constitutes structural
error. See Gonzalez-Lopez, 548 U.S. at 149 n.4, 126 S. Ct. at 2564 n.4 (rejecting
the use of a “single, inflexible criterion” for determining structural error and
instead finding that structural error occurred in light of the pure speculation
involved in determining what would have happened but for the error); see also
Satterwhite, 486 U.S. at 256, 108 S. Ct. at 1797 (stating that when “the scope of a
violation . . . cannot be discerned from the record, any inquiry into its effect on the
outcome of the case would be purely speculative”); Holloway v. Arkansas, 435
U.S. 475, 490–91, 98 S. Ct. 1173, 1181–82 (1978).
Thus, a key distinction between trial error and structural error is that the
latter occurs where the effect of the error is “necessarily unquantifiable and
indeterminate.” See Sullivan, 508 U.S. at 281–82, 113 S. Ct. at 2083. This is why
structural errors are markedly different from trial errors, which can be
“quantitatively assessed.” Id.; see also Arizona v. Fulminante, 499 U.S. 279, 308,
111 S. Ct. 1246, 1264 (1991). Given the “myriad aspects of representation,” there
are numerous unknowable possibilities that may have been permitted or prevented
230
Case: 12-15093 Date Filed: 04/26/2017 Page: 231 of 281
by the participation of an attorney during the prosecution’s introduction of
inculpatory evidence. Cf. Gonzalez-Lopez, 548 U.S. at 150, 126 S. Ct. at 2564.
The admission of inculpatory evidence against the defendant in a criminal
trial while counsel is absent from the courtroom is not a trivial error; we cannot
simply review the remainder of the evidence against the defendant to determine
whether the outcome of the trial would have been different. The absence of
counsel under such circumstances has unquantifiable effects on the jury’s
perceptions of the defendant and counsel’s ability to marshal an adequate defense.
“Harmless-error analysis in such a context would be a speculative inquiry into
what might have occurred in an alternate universe.” See id., 126 S. Ct. at 2565.
We cannot know what defense counsel would have said or done had he been
present the first time around; nor can we ascertain with any degree of certainty
how the prosecution’s approach or the witness’s answers might have changed if
defense counsel had been present and able to participate in the process. We are
therefore not able to accurately assess the impact counsel’s absence had on the
proceedings. As the Majority points out, maybe it had no impact; but it is just as
likely that it had a significant negative impact. Either way, we are forced to
speculate. This problem is sufficient on its own to find structural error. See id. at
149 n.4, 126 S. Ct. at 2564 n.4 (“[H]ere, as we have done in the past, we rest our
231
Case: 12-15093 Date Filed: 04/26/2017 Page: 232 of 281
conclusion of structural error upon the difficulty of assessing the effect of the
error.”).
Turning to the facts of this case, there is no question that defense counsel’s
absence during the introduction of directly inculpatory evidence raised substantial
potential for prejudice, the full extent of which is immeasurable. A law
enforcement expert testified for the prosecution during defense counsel’s absence,
answering inculpatory questions about where the photographs of the underage
victim were found and providing graphic descriptions of the images. Specifically,
the expert testified that the photos of the minor were taken on “March the 10th,
2005, at 6:49 p.m.” He repeated that assertion again during counsel’s absence,
reiterating that the photos were “created initially by the camera” on “March the
10th of 2005 at 6:49 p.m.” The expert also detailed the location of the files on the
defendant’s computer, including descriptions of directories, subdirectories, and
sub-subdirectories, as well as the categorization of those files. In asking the expert
about the files, the prosecutor called them “notable images,” and the expert
substantiated that characterization by mirroring the characterization in his answer
and providing a detailed description of the content of the photos. Finally, the
expert opined on the date of the images’ creation and the date they were uploaded
to the computer.
232
Case: 12-15093 Date Filed: 04/26/2017 Page: 233 of 281
This testimony went straight to the heart of one crime for which the
defendant was tried (possession of child pornography) and supported an inference
that the defendant would have been predisposed to commit the other crime
(enticement of a minor). Critically, after defense counsel returned, the expert
testified that the photos had been created on “March 11, 2006,” contrary to the
testimony he gave while counsel was absent. These circumstances are instructive
as to both the potential for prejudice at an “inculpatory evidence” stage and the
speculation required to assess the effect of this error.
The fact that the trial proceeded without the defendant’s sole counsel present
raises a slew of highly prejudicial circumstances. Most immediately, and as a
practical matter, defense counsel lost the opportunity to observe the witness’s
testimony firsthand, which limited his ability to assess (1) the witness’s demeanor
when giving the testimony, (2) the jurors’ demeanors when hearing the witness’s
testimony, and (3) the jurors’ reactions to the evidence admitted. Cf. Anderson v.
Bessemer City, 470 U.S. 564, 575, 105 S. Ct. 1504, 1512 (1985) (noting that only
those who have the opportunity to observe witness testimony firsthand “can be
aware of the variations in demeanor and tone of voice that bear so heavily on the
listener’s understanding of and belief in what is said”). The jurors’ reaction to
testimony is incredibly important to inform defense counsel’s strategy decisions
moving forward. Here, defense counsel missed the jurors’ initial reactions to the
233
Case: 12-15093 Date Filed: 04/26/2017 Page: 234 of 281
introduction of inculpatory evidence and thus lost a key opportunity to assess his
client’s case in response. That the evidence was resubmitted to the jury
immediately after defense counsel arrived does not assuage the error; the element
of surprise was gone and any initial reactions to the evidence went with it.
Moreover, this lost opportunity impacted not only the immediate steps counsel
took following the reintroduction of this evidence in his presence but also the
approach he took thereafter. See Gonzalez-Lopez, 548 U.S. at 150, 126 S. Ct. at
2564 (describing the “myriad aspects of representation” the participation of an
attorney entails). And the re-introduction of the same evidence gave the
prosecution the advantage of repetition, thereby emphasizing that inculpatory
evidence.
Furthermore, witness demeanor may be dispositive for a jury. In the words
of Judge Learned Hand, “[t]he carriage, behavior, bearing, manner, and appearance
of a witness—in short, his ‘demeanor’—is a part of the evidence. The words used
are by no means all that we rely on in making up our minds about the truth of a
question . . . .” Dyer v. MacDougall, 201 F.2d 265, 268–69 (2d Cir. 1952).
Indeed, we regularly recognize and defer to “the whole nexus of sense impressions
which [the jury] get[s] from a witness,” and thus generally affirm findings of fact
by a jury “on the hypothesis that this part of the evidence may have turned the
scale.” Id. at 269. These are “matters that cannot be gleaned from a written
234
Case: 12-15093 Date Filed: 04/26/2017 Page: 235 of 281
transcript.” See United States v. Mejia, 69 F.3d 309, 315 (9th Cir. 1995) (noting
that some of the benefits of live testimony include the ability “to see the witness’s
physical reactions to questions, to assess the witness’s demeanor, and to hear the
tone of the witness’s voice”).
Even more troubling, in this particular case, the introduction of testimony in
counsel’s absence prevented defense counsel from impeaching a key government
witness’s credibility. During defense counsel’s absence, the law enforcement
expert stated that the date on the camera was 2005. Later, he said it was 2006.
Regardless of whether the expert misrepresented or misspoke, if counsel had been
there in the first instance, he could have attacked the witness’s credibility on cross-
examination. However, during cross-examination, defense counsel did not
mention the discrepancy between the expert’s first statement and his second. It is,
at the very least, reasonable to conclude that counsel’s failure to cross-examine the
expert about this mistake occurred because counsel was unaware of the
discrepancy. Counsel was not present when the expert first said 2005 and the
expert never repeated that inconsistent statement. 4
4
That defense counsel received a report including the apparently erroneous date prior to
trial does not mitigate the problem of defense counsel’s absence when this evidence was
introduced live. Defense counsel could not know what the expert witness was going to say until
he said it; thus, the inconsistencies in the live testimony remain problematic. Moreover,
impeachment of live testimony has an unparalleled effect on trial proceedings.
235
Case: 12-15093 Date Filed: 04/26/2017 Page: 236 of 281
Contrary to the Majority’s view, the effects of a lost opportunity to impeach
are not perfectly quantifiable. Lost opportunities matter.5 See Geders v. United
States, 425 U.S. 80, 91, 96 S. Ct. 1330, 1336–37 (1976) (reversing without inquiry
into prejudice because counsel was denied the opportunity to confer with his client
during a recess); Herring, 422 U.S. at 865, 95 S. Ct. at 2556–57 (reversing without
inquiry into prejudice because trial judge’s order denying counsel the opportunity
to make a summation at close of bench trial denied defendant assistance of
counsel). We are left to wonder whether the credibility of the witness may have
been impeached with regard to the photo dates, and what would have happened
had the jury had the benefit of this impeachment.
The significance of such an error is particularly obvious in this case: the
defendant did not have contact with the victim until at least August of 2005,
months after the date the expert initially claimed the photo was taken. Attacking
credibility is one of the best tactics a defense attorney may have to undermine a
witness’s testimony. When an attorney demonstrates that a witness has made an
5
The Majority claims that “there is nothing unusual—or unusually difficult—about
determining whether a failure to object, or a lost opportunity to object, to testimony was
prejudicial or harmless.” See Maj. Op. at 81. I am not so sure that a lost opportunity to object is
the same thing as the failure to object—or so easily quantifiable. It seems to me that a lost
opportunity to object is an altogether different problem, one that requires speculation to resolve.
I also note that the Majority cites no case law supporting that a lost opportunity to object is in
fact readily calculable. The cases cited instead deal with the more readily assessable failure to
object, which, of course, lends itself to the deficient-performance analysis not at issue here. And
further, here, it was a lost opportunity to impeach—the effects of which could have pervaded the
witness’s entire testimony.
236
Case: 12-15093 Date Filed: 04/26/2017 Page: 237 of 281
inconsistent statement, it allows the attorney to argue to the jury that other things
the witness said might not have been trustworthy or reliable either. Accordingly,
the admission of inculpatory evidence in the absence of defense counsel in this
case critically impaired the defendant’s right to present a defense, particularly the
right to challenge the credibility of an important government witness. See
Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923 (1967).
Moreover, defense counsel’s absence during the introduction of inculpatory
evidence not only affected counsel’s ability to advocate for his client but also
potentially prejudiced the defendant’s case by the appearance that the absence
presented to the jury. I question what the jurors must have thought when they saw
the district court commence proceedings without defense counsel present. The
spectacle of the defendant seated alone at counsel table while, on the other side, the
attorney for the government elicits inculpatory evidence from a witness must have
been a lopsided sight indeed. It may have led the jurors to conclude that the
defendant’s own advocate did not believe that the defendant’s case was
worthwhile. And it may have made the jurors see the trial judge as presuming the
defendant was guilty. After all, if the judge does not care whether defense counsel
is there, why should the jury?
Reinitiating the trial without defense counsel present also may have done
irreparable damage to the jury’s perspective of defense counsel. It is well-
237
Case: 12-15093 Date Filed: 04/26/2017 Page: 238 of 281
documented that jurors’ perceptions of attorneys influence verdicts. In this case,
there is no positive association that could come from defense counsel not being
present when the government elicited incriminating testimony from a key witness.
Faced with these considerations, how can we quantify and dismiss as
harmless beyond reasonable doubt the impact that defense counsel’s absence had
on the jury when it saw the district court resume the trial without defense counsel
present, leaving the defendant to fend for himself? There is no way to quantify the
extent of this error’s effects on the jury without speculating. We cannot assess it
from a transcript. “The idea that a reviewing court can assess from a cold
transcript the prejudice caused by counsel’s absence completely ignores the role
that counsel’s physical presence in the courtroom actually plays.” David A.
Moran, Don’t Worry, I’ll Be Right Back: Temporary Absences of Counsel During
Criminal Trials and the Rule of Automatic Reversal, 85 Neb. L. Rev. 186, 207
(2011). This is because “the reviewing court cannot possibly discern from the
transcript how the jury . . . reacted non-verbally to the proceedings that occurred in
counsel’s absence. During an ongoing trial, real-world trial counsel make crucial
decisions based on the reaction of the jury to testimony, evidence, argument, and
other courtroom proceedings.” Id.; see also United States v. Zeigler, 994 F.2d 845,
849 (D.C. Cir. 1993).
238
Case: 12-15093 Date Filed: 04/26/2017 Page: 239 of 281
Of course, the Majority states, “[w]e know what counsel did, and did not do,
after he heard those questions asked and answered.” Maj. Op. at 49. Similarly,
one of my colleagues concurs in the affirmance because he believes the defendant
received a “do-over.” Jordan, J., concurring, at 172–74. But we do not know what
counsel would have done if he had been there the first time the evidence was
introduced; we only know what he did the second time. It matters neither whether
the substance of the evidence was repeated and subjected to cross-examination
when counsel returned nor that counsel failed to object when he ultimately heard
the evidence introduced. 6 What matters is that counsel did not have the
opportunity in the first instance to, inter alia, observe the witness as he testified,
note the impact of the inculpatory evidence on the jury, or attack the credibility of
the witness with a prior inconsistent statement. Plus, hearing the same inculpatory
evidence twice is hardly curative—it might even make matters worse.
Additionally, the suggestion that we know what counsel did and the theory
that counsel got a “do-over” both fail to account for the harm inflicted by
6
The Supreme Court has made clear that counsel’s failure to object to the taking of
evidence during his absence is irrelevant for purposes of determining whether structural error has
occurred. See White, 373 U.S. at 60 n.*, 83 S. Ct. at 1051 n.* (failure of counsel to object to
evidence obtained in violation of the right to counsel does not negate need for automatic reversal
because “the rationale of [structural error precedent] does not rest . . . on a showing of
prejudice”). If the Supreme Court has held that an objection is unnecessary to warrant automatic
reversal where counsel is present during the admission of the offending evidence, an objection is
certainly unnecessary where counsel is not even present for the admission of the offending
evidence.
239
Case: 12-15093 Date Filed: 04/26/2017 Page: 240 of 281
proceeding without counsel in front of the jury. Any “do-over” could not fix the
fact that the jury had just witnessed the trial judge start up proceedings again
without defense counsel present. We do not know the effect that seeing the
criminal defendant sitting at counsel’s table alone had on the jury; we do not know
what the jurors must have thought when they watched the judge reconvene trial
without waiting for defense counsel to arrive, or what impression of guilt may have
attached when the judge appeared not to care whether defense counsel was there.
Thus, not only do we not know what counsel would or would not have done but
also it is inaccurate to claim that the defendant got a “do-over”—in either practical
or legal terms—simply because evidence was repeated for a second time when his
counsel came back into the courtroom. 7
This problem is precisely why errors such as this are structural in nature. As
the Supreme Court has explained, when “the scope of a violation . . . cannot be
discerned from the record, any inquiry into its effect on the outcome of the case
would be purely speculative.” Satterwhite, 486 U.S. at 256, 108 S. Ct. at 1797; see
also Holloway, 435 U.S. at 490–91. Since we cannot accurately assess the effect
7
I emphasize that the “do-over” notion simply does not cure a structural defect. The
problem with structural error is that it strikes a blow to the integrity of the process itself, calling
into question the system put into place to guarantee fairness. The system does not get a “do-
over,” even if one can accept that the defendant here did.
240
Case: 12-15093 Date Filed: 04/26/2017 Page: 241 of 281
of the absence of defendant’s counsel during the admission of inculpatory
evidence, fundamental fairness requires a new trial.
B.
The Supreme Court’s decision in Cronic also compels a finding that the
violation here is structural error. In Cronic, the Court announced that structural
error occurs if counsel is denied at a “critical stage” in the proceedings. This is
because “a trial is unfair if the accused is denied counsel at a critical stage of his
trial”; in the absence of counsel, “a serious risk of injustice infects the trial itself.”
Cronic, 466 U.S. at 656, 659 & n.25, 104 S. Ct. at 2045, 2047 & n.25 (internal
quotation marks omitted). The error at bar is a Cronic error because the stage of
trial in which the prosecution offers inculpatory evidence is a critical stage in the
proceedings against the defendant. 8
A critical stage is one that holds “significant consequences for the accused.”
Bell v. Cone, 535 U.S. 685, 696, 122 S. Ct. 1843, 1851 (2002). To determine
whether a stage in the proceedings meets this definition, we again look to the
8
As a threshold point, it is worth noting that defense counsel was actually absent from
the proceedings. Cronic applies to even constructive denials of counsel, and much of the
Supreme Court case law has focused on whether a defendant was constructively denied counsel
due to defense counsel failures and, thus, whether the standard Strickland deficient performance
inquiry is appropriate. See generally Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
(1984). In contrast, this case is squarely removed from the Strickland deficient-performance line
of inquiry because, here, defense counsel was denied by virtue of being physically absent. See
Vines v. United States, 28 F.3d 1123, 1127 (11th Cir. 1994) (“Strickland assumes the presence of
counsel and is therefore inapplicable in the absence of counsel context.”). Contra Tjoflat, J.,
concurring, at 128 & n.3.
241
Case: 12-15093 Date Filed: 04/26/2017 Page: 242 of 281
structural-error factors: potential for prejudice and the necessity of speculation.
We must “analyze whether potential substantial prejudice to [a] defendant’s rights
inheres in the particular confrontation and the ability of counsel to help avoid that
prejudice.” See Wade, 388 U.S. at 227, 87 S. Ct. at 1932; see also Cronic, 466
U.S. at 656, 104 S. Ct. at 2045.
The question governing every criminal trial is whether enough inculpatory
evidence exists to find a defendant guilty beyond a reasonable doubt. Considering
this basic premise, the prosecution’s submission of inculpatory evidence is
essential to the trial process. Adding to its description of a “critical stage” as one
that holds “significant consequences for the accused,” Bell, 535 U.S. at 696, 122 S.
Ct. at 1851, the Supreme Court has clarified that “critical stages” include
“proceedings between an individual and agents of the State (whether ‘formal or
informal, in court or out’) that amount to ‘trial-like confrontations,’ at which
counsel would help the accused in ‘coping with legal problems or . . . meeting his
adversary,’” Rothgery v. Gillespie Cty., 554 U.S. 191, 212 n.16, 128 S. Ct. 2578,
2591 n.16 (2008) (alteration in original) (citations omitted).
There is no stage during criminal proceedings more “trial-like” than when
the prosecution offers evidence that helps convince the jury the defendant is guilty.
The submission of inculpatory evidence is the stage of trial that matters. It is when
“the core purpose of the counsel guarantee” is necessary, “to assure ‘[a]ssistance’
242
Case: 12-15093 Date Filed: 04/26/2017 Page: 243 of 281
at trial, when the accused [i]s confronted with both the intricacies of the law and
the advocacy of the public prosecutor.” See United States v. Ash, 413 U.S. 300,
309, 93 S. Ct. 2568, 2573 (1973). At this stage, the potential for prejudice is at its
highest point, and the effects of counsel’s absence are unquantifiable.
I can think of no more critical a stage in criminal proceedings than the
admission of inculpatory evidence against a defendant. Several of our sister
circuits agree. See, e.g., United States v. Hamilton, 391 F.3d 1066, 1070–71 (9th
Cir. 2004) (finding that “the portions of the consolidated proceedings in which
evidence relating to [the defendant’s] case” was presented constituted a critical
stage, and the absence of defense counsel at such a stage resulted in structural
error); Olden v. United States, 224 F.3d 561, 568 (6th Cir. 2000) (“When the
government presents evidence probative of a defendant’s culpability in criminal
activity, or evidence that further implicates a defendant in criminal conduct, that
portion of a criminal trial is sufficiently critical to the ultimate question of guilt to
trigger the protections of Cronic.”); Burdine v. Johnson, 262 F.3d 336, 347 (5th
Cir. 2001) (en banc) (“[T]he presentation of evidence against a defendant is a
critical stage of a criminal proceeding.”); see also Green v. Arn, 809 F.2d 1257,
1263 (6th Cir.) (“It is difficult to perceive a more critical stage of a trial than the
taking of evidence on the defendant’s guilt.”), vacated on other grounds, 484 U.S.
806, 108 S. Ct. 52 (1987) (mem.), reinstated, 839 F.2d 300 (6th Cir. 1988); United
243
Case: 12-15093 Date Filed: 04/26/2017 Page: 244 of 281
States v. Russell, 205 F.3d 768, 771–72 (5th Cir. 2000). Nevertheless, in the
Majority’s holding today, we become the first circuit to find that, in a single-
defendant trial, the complete absence of the defendant’s sole counsel during the
introduction of inculpatory evidence does not constitute structural error.
Although several of our sister circuits agree that the introduction of
inculpatory evidence against a defendant is a critical stage, none of them have
encountered circumstances as egregious as those presented here. For example,
Olden, Green, and Russell addressed instances where the attorney for one
defendant in a multi-defendant trial was absent and the court, counsel, and parties
operated under the erroneous assumption that the continued presence of a co-
defendant’s attorney was adequate to protect the defendant’s right to counsel. In
each case, a co-defendant’s counsel was available to assist the defendant with
cross-examination or to represent the defendant’s interests otherwise, but the
appellate court nonetheless found that reversal was required under the Sixth
Amendment. 9
In Olden, the Sixth Circuit concluded that remand was warranted in a multi-
defendant, multi-attorney trial even when a co-defendant’s counsel agreed to—and
9
In Olden, the Sixth Circuit remanded for an evidentiary hearing in order to determine
whether the defendant “voluntarily, knowingly, and intelligently waived” his Sixth Amendment
rights, and held that if the defendant could establish that his rights were not properly waived,
then a new trial was warranted per Cronic. See 224 F.3d at 569.
244
Case: 12-15093 Date Filed: 04/26/2017 Page: 245 of 281
did—stand in for the defendant’s counsel during an absence. See Olden, 224 F.3d
at 568–69. Earlier, in Green, the Sixth Circuit reversed when confronted with
defense counsel’s temporary absence in a multi-defendant trial, see 809 F.2d at
1263–64, and even the sole dissenting judge (who would not have reversed based
on structural error) noted that his view would be different if he had been presented
with the “extreme” facts in the case before us now, see id. at 1265 (Boggs, J.,
dissenting). Judge Boggs wrote: “The facts of [Green] are a long way from, for an
extreme example, taking of direct testimony against a single defendant whose
counsel is absent.” Id. And, in Russell, counsel for one of the defendant’s sixteen
co-defendants volunteered to sit in on behalf of the defendant’s absent counsel and
the court instructed the government not to call any witness relevant to the
defendant during his counsel’s absence. See 205 F.3d at 769–70. Yet the Fifth
Circuit still found structural error since potentially inculpatory evidence was
offered while the defendant’s counsel was absent. See id. at 772–73.
Although the cases on which the Majority relies reached the opposite result,
those cases are distinguishable from the present case because none involved a
single defendant deprived of his sole counsel. See Sweeney v. United States, 766
F.3d 857, 858–59 & n.2 (8th Cir. 2014), cert. denied, 135 S. Ct. 1841 (2015)
(mem.); United States v. Kaid, 502 F.3d 43, 44–45 (2d Cir. 2007) (per curiam). In
fact, in Kaid, there were so many defense attorneys and co-defendants that
245
Case: 12-15093 Date Filed: 04/26/2017 Page: 246 of 281
counsel’s “alleged trial absence” was not “noted anywhere in the trial record—not
by the able district judge, not by the attorney involved, not by fellow defense
attorneys, not by the prosecutor, and not by [the defendant] himself.” See 502 F.3d
at 44–45.10 This is clearly different from the circumstances here; it strains
credulity to claim that no one noticed the sole defendant sitting entirely alone at
counsel’s table.
In sum, several of our sister circuits have held that even potentially
inculpatory evidence introduced against a defendant during a multi-defendant,
multi-counsel case, while that defendant’s counsel was absent, constitutes
structural error. And those circuits that disagree have not faced the circumstances
we encounter here. Here, the trial judge, defense attorney, and defendant received
no assurances that another attorney was looking out for the defendant’s interests.
No co-defendant’s attorney sat at the table with the defendant, the presence of
whom could mitigate the potential for prejudicial effect in the eyes of the jury—
instead, he sat alone. Nonetheless, the Majority concludes that directly inculpatory
evidence introduced against a defendant in a single-defendant, single-counsel case
while defense counsel is absent constitutes harmless trial error.
10
The Majority’s reliance on Kaid is also problematic because the Second Circuit in that
case assessed the defendant’s absence-of-counsel claim under Strickland—an analysis that even
the Majority concedes is erroneous, see Maj. Op. at 19 n.7 (citing Vines, 28 F.3d at 1127
(“Strickland assumes the presence of counsel and is therefore inapplicable in the absence of
counsel context.”)).
246
Case: 12-15093 Date Filed: 04/26/2017 Page: 247 of 281
Regardless of what other circuits have done, the Supreme Court has
indicated that it matters whether the evidence presented during counsel’s absence
directly inculpated a sole defendant. In Woods v. Donald, the Sixth Circuit granted
a petitioner habeas relief after potentially “indirectly inculp[atory]” evidence was
introduced against him in the absence of defense counsel. See 575 U.S. ___, ___,
135 S. Ct. 1372, 1377 (2015) (per curiam). The Supreme Court reversed,
explaining that, because the Court had never decided the specific question in that
case—whether testimony about co-defendants is a critical stage requiring the
presence of counsel under Cronic—the Sixth Circuit erred in ruling that the state
court of appeals’ decision was contrary to a Supreme Court holding. See id. at
1377. Under the deferential standard for federal habeas review, “[w]ithin the
contours of Cronic, a fairminded jurist could conclude that a presumption of
prejudice is not warranted by counsel’s short absence during testimony about other
defendants where that testimony was irrelevant to the defendant’s theory of the
case.” Id. at 1377–78. However, in so holding, the Court emphasized the
distinction relevant here: “The relevant testimony was not merely ‘testimony of a
government witness’; it was prosecution testimony about other defendants.” See
id. at 1377 (noting that “the Sixth Circuit framed the issue at too high a level of
generality”). Clearly, this is an important distinction. 11
11
Woods informs my view, but it is not dispositive. The Supreme Court stated that it was
247
Case: 12-15093 Date Filed: 04/26/2017 Page: 248 of 281
* * *
Supreme Court instruction as to what constitutes a critical stage, guidance
from other circuits, and a basic understanding of how criminal trials work—the
heart of which is when the prosecution introduces evidence against the defendant
to prove his guilt—all dictate the conclusion that the admission of directly
inculpatory evidence against a defendant is a critical stage of the trial. The
deprivation of counsel during this critical stage is a constitutional error, “and no
amount of showing of want of prejudice w[ill] cure it.” See Cronic, 466 U.S. at
659, 104 S. Ct. at 2047.
II.
The Majority fails to adequately account for the key features of the error at
issue. In an effort to quantify the unquantifiable, the Majority disregards the
potential for prejudice, focuses on the amount of time defense counsel was absent,
only addressing “the narrow context of federal habeas review,” not “the merits of the underlying
Sixth Amendment principle.” Woods, 135 S. Ct. at 1378 (internal quotation marks omitted).
But, in the absence of binding precedent on this point, Woods offers valuable insight into the
type of distinctions the Court may make if and when it takes such a case on direct review. One
need only look to the relationship between, for example, Lawrence v. Texas and United States v.
Windsor to understand how the Court’s disavowal of a rule in an earlier case may nonetheless
inform a future holding. See United States v. Windsor, 570 U.S. __, __, 133 S. Ct. 2675, 2696
(2013); id. at 2709 (Scalia, J., dissenting) (discussing the Court’s earlier limitation of its holding
in Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 2484 (2003)).
248
Case: 12-15093 Date Filed: 04/26/2017 Page: 249 of 281
and adopts a novel, hypertechnical approach to “stages” that inverts and
undermines the constitutional inquiry we are obligated to perform.
A.
In disregarding the potential for prejudice here, the Majority conflates the
constitutional analysis. To determine whether an error is structural or subject to
harmless-error analysis, we must first examine the potential for prejudice. If the
potential for prejudice does not warrant a structural error finding, we then conduct
an actual-prejudice/harmlessness inquiry. The Majority forgoes the threshold step
in this process, first finding that the defendant’s criminal proceeding as a whole
was not affected by counsel’s absence, and then concluding that structural error has
not occurred. This semantic inversion evades the point. If a structural error
occurs, it inherently undermines the fairness of a criminal proceeding as a whole
by virtue of its occurrence. See Brecht, 507 U.S. at 629–30, 113 S. Ct. at 1717
(“The existence of [structural] defects—deprivation of the right to counsel, for
example—requires automatic reversal of the conviction because they infect the
entire trial process.” (footnote omitted)); United States v. Davila, 569 U.S. ___,
___, 133 S. Ct. 2139, 2149 (2013). That is the difference between a prejudice
inquiry and a prejudice presumption. Structural errors, by definition, “pervade the
entire proceeding.” See Satterwhite, 486 U.S. at 256, 108 S. Ct. at 1797; Cronic,
466 U.S. at 659 n.25, 104 S. Ct. at 2047 n.25 (“The Court has “uniformly found
249
Case: 12-15093 Date Filed: 04/26/2017 Page: 250 of 281
constitutional error without any showing of prejudice when counsel was either
totally absent, or prevented from assisting the accused during a critical stage of the
proceeding.” (emphasis added)).
But the Majority from the outset performs a harmless-error analysis. The
Majority’s reasoning parallels the government’s reasoning in Gonzalez-Lopez,
which the Supreme Court rejected. The government in Gonzalez-Lopez argued,
“[a] trial is not unfair and thus the Sixth Amendment is not violated . . . unless a
defendant has been prejudiced.” See 548 U.S. at 145, 126 S. Ct. at 2562. The
Court squarely rejected this construction, finding: “It is true enough that the
purpose of the rights set forth in th[e Sixth] Amendment is to ensure a fair trial; but
it does not follow that the rights can be disregarded so long as the trial is, on the
whole, fair.” Id. Instead, the Sixth Amendment right to counsel during trial
“commands, not that a trial be fair, but that a particular guarantee of fairness be
provided” throughout the trial. Id. at 146, 126 S. Ct. at 2562.
Thus, the right at stake in this case is the right to defense counsel during the
introduction of directly inculpatory evidence, “not the right to a fair trial” as a
whole. See id. “[A]nd that right was violated because the deprivation of counsel
was erroneous.” See id. In these circumstances, “[n]o additional showing of
prejudice is required to make the violation ‘complete.’” See id.
B.
250
Case: 12-15093 Date Filed: 04/26/2017 Page: 251 of 281
The Majority attempts to distinguish this case from others based on the
amount of time counsel was absent, hanging its hat on a rigid comparison of the
minutes that counsel was absent in relation to the length of time counsel was
present. See, e.g., Maj. Op. at 50–51 (“[T]he absence in Kaid was nearly three
times as long as the absence in Roy’s case . . . .”); id. at 51 (noting that, in
Sweeney, there were “twice as many transcript pages of testimony and more than
twice as many questions and answers as counsel missed in Roy’s case”). This
mechanical focus on minutes and seconds drives the Majority’s “critical stage”
inquiry. And in considering the contours of structural error outside of the “critical
stage” framework, the Majority sets forth a new test that turns on the length of a
counsel’s absence: the “absence for a substantial portion of trial” test. See id. at
61–73. The Majority’s mechanical, minutes-and-seconds approach is misplaced.
First, the Majority’s mechanical calculation is simply the wrong inquiry for
the “critical stage” analysis. The connotation of “critical” is that it denotes a
substantive inquiry—we must look to what was happening to see whether what
occurred was important. The importance of the proceedings that counsel missed
outweighs the amount of time that counsel was away. To simply look at the length
of time and the number of transcript pages disregards what was critical about the
stage of the proceedings relevant here—the introduction of directly inculpatory
evidence. The rule from Cronic is not that reversal is required when counsel is
251
Case: 12-15093 Date Filed: 04/26/2017 Page: 252 of 281
absent from a “some-time-longer-than-seven-minute stage in the proceedings.”
The rule is that reversal is required when counsel is absent at a critical stage in the
proceedings. The Supreme Court certainly could have said that reversal is required
when counsel is absent for a “lengthy period of time,” or for “prolonged periods,”
if length of time was the key factor in the inquiry into whether a stage is a critical
stage. But there is no support for the Majority’s treatment of length of time as all
but dispositive.
Second, the Majority’s “length of time” distinction is not enough to remove
the circumstances here from structural error. The Majority focuses on the length of
time to try to distinguish relevant cases from our sister circuits, engaging in a
tedious line-drawing exercise while emphasizing that seven minutes in a lengthy
trial is not a substantially long period. I agree that seven minutes is not all that
long. But it is long enough to permit incriminating evidence to be admitted, and it
is long enough to create an attendant risk of substantial prejudice. See Olden, 224
F.3d at 568 (“[W]hen the government presents evidence probative of a defendant’s
culpability in a criminal activity, or evidence that further implicates a defendant in
criminal conduct, that portion of a criminal trial is sufficiently critical to the
ultimate question of guilt to trigger the protections of Cronic.”); Russell, 205 F.3d
at 772 (“[F]or [the defendant] to be without counsel as the probability of his guilt
252
Case: 12-15093 Date Filed: 04/26/2017 Page: 253 of 281
increased during the government’s presentation of evidence against his co-
conspirators is unacceptable.”).
In fact, illustrating the shortcomings in the Majority’s “length of time”
distinction—as well as the shortcomings in the Majority’s “absence for a
substantial portion of trial” test—a one-minute absence of counsel could be enough
to constitute structural error. Consider an expert witness in a homicide trial who
takes the stand and opines that the fingerprints on the murder weapon belong to the
defendant, while counsel for the defendant has not yet returned from lunch. The
government introduces the expert testimony in less than one minute during defense
counsel’s absence. That, in my estimation, is long enough to warrant application
of the Cronic reversal rule because the expert opinion evidence is directly
inculpatory, and the probability of the defendant’s guilt dramatically increases
during that one-minute span. See Russell, 205 F.3d at 772. Furthermore, even if
the testimony is repeated and subjected to cross-examination when defense counsel
returns, there is no way to measure how much the initial opinion influenced the
jury’s consideration of the defendant’s guilt.
Under the Majority’s inverted analysis, we might conclude that the one-
minute absence was an insufficient “stage” or was not for a “substantial portion of
trial” because it was so short and the other evidence so damning that the defendant
surely would have been found guilty anyway. That conclusion, however, would be
253
Case: 12-15093 Date Filed: 04/26/2017 Page: 254 of 281
premised on pure speculation as to the effects of the admitted testimony—
speculation that indicates structural error. Therein lies the problem with applying a
harmless-error analysis to an absence of counsel during the admission of
inculpatory evidence. 12
Again, structural error results in a presumptive-prejudice rule—we presume
prejudice when structural error occurs and thus do not perform the prejudice
inquiry required for harmless-error review. The Majority rewrites Cronic (and
structural error, writ large) to make exceptions—when the absence is not too
lengthy, when the evidence is so great—and instead applies the prejudice test that
the Supreme Court rejected in Cronic. To suggest that the specific length of time
that counsel is absent perfectly correlates with the impact of potential lost
12
Similarly, I am not persuaded by Judge Rosenbaum’s conclusion that defense counsel’s
absence in this case was “de minimis.” As a practical matter, this approach falls into the same
trap as does the Majority’s, by measuring “de minimis” in light of how long counsel was absent
relative to time present instead of considering the substance of the evidence introduced. See
Rosenbaum, J., concurring, at 217 (“I would draw the line between trial-error absences and
structural-error absences at the point where an absence lasts for more than ten minutes or 1% of
the total ‘critical stages’ of trial.”). I believe we should determine whether structural error
occurred by focusing on the potential for prejudice given the substance of what was introduced
in counsel’s absence and whether we can assess the effects that flow from that absence, not a
rigid measure of the minutes counsel missed.
In addition, as a legal matter, the de minimis approach functions as an exception to the
exception, which is an approach that has not been endorsed by the Supreme Court. In the
absence of any statement that such an exception applies, I would decline to create it. Under
Supreme Court precedent, “a constitutional error is either structural or it is not.” Neder v. United
States, 527 U.S. 1, 14, 119 S. Ct. 1827, 1836 (1999). If the error can be readily quantified and
deemed de minimis, then it is trial error, not structural error. Sullivan, 508 U.S. at 281–82, 113
S. Ct. at 2083 (noting that structural errors are “necessarily unquantifiable and indeterminate”);
Fulminante, 499 U.S. at 309, 111 S. Ct. at 1265 (noting that structural errors “defy analysis by
harmless-error standards”).
254
Case: 12-15093 Date Filed: 04/26/2017 Page: 255 of 281
opportunities to advocate for his client is deceptively simplistic. It disregards what
the Court has recognized as the “myriad aspects of representation,” resulting in
countless unknowable possibilities that may have been permitted or prevented by
the participation of an attorney. Gonzalez-Lopez, 548 U.S. at 150, 126 S. Ct. at
2564. Even more importantly, to say that the length of counsel’s absence is short
and, consequently, not prejudicial bypasses the threshold inquiry—whether the
error is trial error, permitting such an analysis in the first place, or structural error,
prompting a presumption of prejudice. 13
C.
Consistent with its mechanical approach to structural-error analysis, the
Majority creates a hypertechnical “critical stage” standard that elevates form over
substance. The Majority makes an extended argument that a “critical stage” is “a
qualitatively distinct, discrete, and separate phase or step of a criminal proceeding”
or “a self-contained proceeding or a discrete and separately identifiable portion of
a larger proceeding.” Maj. Op. at 28–32. However, my understanding of the
critical-stage concept set forth by the Supreme Court recognizes that there are
13
Several of the highest state courts to consider this question have similarly declined to
focus on the overall length of time that counsel was absent, instead looking to the substance of
what occurred during the absence. The Pennsylvania Supreme Court found automatic reversal
under Cronic was warranted when defense counsel was absent for a brief conversation between
the court and a juror. See Commonwealth v. Johnson, 828 A.2d 1009, 1015 (Pa. 2003).
Similarly, the South Carolina Supreme Court presumed prejudice and reversed under Cronic
where defense counsel was temporarily absent during the testimony of one of the prosecution
witnesses. See McKnight v. State, 465 S.E.2d 352, 359–60 (S.C. 1995).
255
Case: 12-15093 Date Filed: 04/26/2017 Page: 256 of 281
defining moments in any trial that pervade the remainder of the proceedings, not
just isolated, discrete phases or steps. In Cronic, the Court cited several cases of
Sixth Amendment structural error that involved defining moments, such as
counsel’s lost opportunity to make a statement, see Herring, 422 U.S. at 865, 95
S. Ct. at 2556–57; the defendant’s inability to converse with counsel during a
recess, see Geders, 425 U.S. at 91, 96 S. Ct. at 1336–37; and deprivation of the
defendant’s right to consult with counsel to determine when to testify at trial, see
Brooks, 406 U.S. at 612–13, 92 S. Ct. at 1895.14 Those cases did not involve the
denial of counsel during a “discrete and separately identifiable” phase of criminal
proceedings; they involved the denial of counsel “at a critical stage of . . . trial.”
See Cronic, 466 U.S. at 659, 104 S. Ct. at 2047 (emphasis added). Accord Gregg
v. United States, 754 A.2d 265, 268–71 (D.C. Ct. App. 2000) (holding that, where
14
The Cronic Court stated:
The Court has uniformly found constitutional error without any
showing of prejudice when counsel was either totally absent, or
prevented from assisting the accused during a critical stage of the
proceeding. See, e.g., Geders v. United States, 425 U.S. 80, 96
S. Ct. 1330, 47 L. Ed. 2d 592 (1976); Herring v. New York, 422
U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975); Brooks v.
Tennessee, 406 U.S. 605, 612–613, 92 S. Ct. 1891, 1895, 32 L. Ed.
2d 358 (1972); Hamilton v. Alabama, 368 U.S. 52, 55, 82 S. Ct.
157, 159, 7 L. Ed. 2d 114 (1961); White v. Maryland, 373 U.S. 59,
60, 83 S. Ct. 1050, 1051, 10 L. Ed. 2d 193 (1963) (per curiam);
Ferguson v. Georgia, 365 U.S. 570, 81 S. Ct. 756, 5 L. Ed. 2d 783
(1961); Williams v. Kaiser, 323 U.S. 471, 475–476, 65 S. Ct. 363,
366, 89 L. Ed. 398 (1945).
Cronic, 466 U.S. at 659 n.25, 104 S. Ct. at 2047 n.25.
256
Case: 12-15093 Date Filed: 04/26/2017 Page: 257 of 281
defense counsel is absent for even a portion of voir dire, reversal under Cronic is
required in the absence of a waiver).
III.
Certainly, the Majority and I have strikingly different approaches to
understanding the issue before us. While the Majority obliquely takes into account
the facts of the crime, the potential outcome of treating this as structural error, et
cetera, I see this as a strictly constitutional question about process, fairness, and the
integrity of the trial. We are not instructed to consider what could happen with a
different criminal defendant in a different criminal trial. And we are not instructed
to consider the outcomes that might result from our proper application of the law.
When I remove the impermissible factors that are skewing the Majority’s analysis,
I reach a very different result.
A conspicuous example of the divergence between our approaches to this
case can be seen in the Majority’s hypothetical regarding Manuel Noriega. The
Majority’s response to the incalculable negative impact of having the trial proceed
without the defendant’s sole counsel there is to fearfully query, “but what about
(former military dictator) Manuel Noriega?” See Maj. Op. at 59–60. Well, what
about him? Presumably, if irreparable constitutional error occurred in a trial—
whether it be in the trial of Manuel Noriega or anyone else—we would reverse and
remand for proceedings consistent with what the Constitution requires. It is simply
257
Case: 12-15093 Date Filed: 04/26/2017 Page: 258 of 281
what we, as judges and guardians of the Constitution, are required to do. No
matter how bad the defendant; no matter how egregious the crime; no matter how
long the defendant’s trial lasted. Neither our views of the defendant nor our policy
concerns about the costs of a second trial are relevant.
It is easy to focus on the disturbing nature of this particular defendant’s
offense to avoid reaching the constitutionally required result. But it is in precisely
cases such as these that we must vigilantly ensure we are adhering to our
obligation to uphold the same protections for all criminal defendants, rather than
being swayed by emotions or public influence. The extent of our commitment to
the Constitution and the protections it guarantees can be measured by our treatment
of the most despised defendants. To be sure, these individuals may not elicit our
pity and may ultimately deserve harsh punishment, but the constitutional processes
that the Framers put in place are there to protect everyone, including people
accused of the gravest and most serious crimes. It is in those instances that we are
most likely to react inflammatorily by disregarding due process. That is precisely
why it is in those instances that our adherence to constitutional protections must be
resolute. 15
15
Lest there be any confusion, I am not saying that people accused of terrible crimes are
entitled to more constitutional protections. Rather, I am noting that the terrible crimes of which
someone is accused should not be used to detract from the legal merits of his case or to avoid
258
Case: 12-15093 Date Filed: 04/26/2017 Page: 259 of 281
The Sixth Amendment guarantee of the right to counsel does not apply on a
sliding scale based on the gravity of the defendant’s offense. We are not called
upon to judge the character of the individual but rather the fairness of the process.
Thus, the lurid details of this defendant’s offense serve only to distract from the
constitutional question this appeal raises: whether, in the trial of a single defendant
represented by a single lawyer, it constitutes structural error for the trial judge to
resume proceedings without defense counsel present, leaving the defendant
unaided in the presence of the jury while the prosecution presents directly
inculpatory evidence. I conclude that it does.
IV.
The Supreme Court has given explicit instructions for remedying structural
error: remand for new, constitutionally-compliant proceedings. See, e.g., Cronic,
466 U.S. at 659 & n.25, 104 S. Ct. at 2047 & n.25. The nature of the right at
issue—one that is “so basic to a fair trial” that it cannot be treated as harmless
error—and the characteristics of structural error itself—the effects of which cannot
be readily measured and are likely to be substantially prejudicial—mandate this
result. See Chapman, 386 U.S. at 23, 87 S. Ct. at 827–28; Brecht, 507 U.S. at 629–
applying basic constitutional requirements. Such a defendant deserves no more—and no less—
constitutional protections than any other defendant.
259
Case: 12-15093 Date Filed: 04/26/2017 Page: 260 of 281
30, 113 S. Ct. at 1717. Immediate reversal and remand for a new trial is still a “far
more desirable” result than for the error to come up in a “spin-off of collateral
proceedings that seek to probe murky memories.” Stano, 921 F.2d at 1172
(Tjoflat, J., dissenting) (quoting Boykin, 395 U.S. at 244, 89 S. Ct. at 1713). There
is no need for us to invite additional litigation when we may resolve the issue
now.16
The Supreme Court recently reaffirmed that reversal is the only
constitutionally viable remedy upon a finding of structural error. In Williams, the
Court ruled it was structural error for the Supreme Court of Pennsylvania to
consider a case with a judge on the panel who should have recused, and thus, the
Court reversed and remanded the case to “[a]llo[w] an appellate panel to
reconsider [the] case without the participation of the interested member.” See 136
S. Ct. at 1909–10. Although the Supreme Court of Pennsylvania already
“entertained [the defendant’s] motion for reargument without [the biased judge],
who had retired months before the court denied the motion,” id. at 1922 (Thomas,
J., dissenting), the Court was not persuaded that such a pre-existing “do-over”
mattered—a new appellate panel had to reconsider the issue. The rule is therefore
16
This case is before us on direct appeal—the best time to correct the error. Cf. Davis v.
Ayala, 576 U.S. ___, ___, 135 S. Ct. 2187, 2213 n.1 (2015) (Sotomayor, J., dissenting), reh’g
denied, 136 S. Ct. 14 (2015) (mem.).
260
Case: 12-15093 Date Filed: 04/26/2017 Page: 261 of 281
clear: new proceedings are in order. In Williams, the defendant was entitled to a
new hearing. The defendant here is entitled to a new trial.17
Finally, even were harmless-error review to apply, I would find that reversal
is required because the error in this case was not “harmless beyond a reasonable
doubt.” See Chapman, 386 U.S. at 24, 87 S. Ct. at 828. The admission of
inculpatory evidence against a criminal defendant while his counsel is absent from
the courtroom is a serious constitutional error. The prejudicial effects of subjecting
a defendant to such a one-sided prosecutorial campaign are immeasurable. Here,
that error eviscerated the guarantee of fairness and reliability that the adversarial
process provides, and it undoubtedly had a serious impact on the jury’s views of
the court, the defendant, and defense counsel.
V.
There has also been extensive discussion amongst my colleagues about who
was at fault in permitting this error to occur. For instance, Judge Tjoflat in his
concurrence suggests that, if there was no one at fault, it is unclear how the
Majority can assess the error under our current harmless-error precedents. If Judge
17
My concurring colleagues hope that “de minimis” errors or “do-overs” do away with or
transform structural error into trial error. By couching their analyses in these terms, they
conveniently avoid the result that the Supreme Court has told us structural error requires. The
Williams Court could have articulated an exception to structural error’s automatic reversal rule
under any of these theories, as highlighted by Justice Thomas in his dissent, but it instead
reinforced the automatic reversal rule. Given the Supreme Court’s clear instructions on the
result required, I am not persuaded that we can sidestep the trial error/structural error dichotomy
and the result mandated upon a finding of structural error.
261
Case: 12-15093 Date Filed: 04/26/2017 Page: 262 of 281
Tjoflat is correct, then this ambiguity additionally signals that the defect at issue
constitutes structural error.
But if this discussion is really a question about on whom we should place the
burden that constitutional rights remain inviolate, then amongst the defendant,
defense attorney, and the trial judge, it is the judge who properly shoulders that
burden. The Supreme Court has “consistently recognized the important role the
trial judge plays in the federal system of criminal justice.” Geders, 425 U.S. at 86,
96 S. Ct. at 1334. That is because “the judge is not a mere moderator, but is the
governor of the trial for the purpose of assuring its proper conduct and of
determining questions of law.” Quercia v. United States, 289 U.S. 466, 469, 53
S. Ct. 698, 698–99 (1933); see Rosenbaum, J., concurring, at 190 (“[T]he court
alone enjoys control over the trial proceedings, including when to start, stop, and
resume trial. And trial simply cannot proceed without the court’s actions in
allowing it to do so.”). The trial judge must therefore see to it that defense counsel
is present before permitting the introduction of inculpatory evidence in a one-
defendant, one-defense-counsel case, and, if the judge fails to do so, reversal is
warranted. 18 The defendant would not simply go free; remand would occur for a
fair trial to take place.
18
As I previously wrote, I am “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
262
Case: 12-15093 Date Filed: 04/26/2017 Page: 263 of 281
Such “a per se rule of prejudice in these kinds of cases may be the most
efficient mechanism for preventing miscarriages of justice.” See Stano, 921 F.2d
at 1172 (Tjoflat, J., dissenting). It “creates a strong incentive for the courts at the
. . . trial level to ensure that a defendant is accorded meaningful representation. A
per se rule of prejudice will thus sharpen the trial court’s sense of responsibility in
discharging its duties at the first stage.” Id.
That sense of responsibility needs sharpening. By reconvening the trial
early and permitting the introduction of incriminating evidence without confirming
that defense counsel was present, the district court in this case failed to “ensure[] to
the defense in a criminal trial the opportunity to participate fully and fairly in the
adversary factfinding process.” See Herring, 422 U.S. at 858, 95 S. Ct. at 2553.
Moreover, the deprivation of defense counsel during the introduction of
inculpatory evidence is not an isolated incident in the district court judge’s
courtroom. In a different criminal jury trial, the same judge resumed proceedings
counsel table, next to his client, or is somewhere in the courtroom when the government seeks
the admission of incriminating evidence.” United States v. Roy, 761 F.3d 1285, 1298 (11th Cir.),
reh’g en banc granted, opinion vacated, 580 F. App’x 715 (11th Cir. 2014) (mem.).
263
Case: 12-15093 Date Filed: 04/26/2017 Page: 264 of 281
in the absence of defense counsel and the defendant, and the judge then allowed
the government to elicit incriminatory evidence from one of its witnesses. 19
Here, regardless of the judge’s intentions, the defendant’s constitutional
rights were violated when the judge began proceedings without counsel present.
When, in a single-defendant, single-defense-counsel trial, a judge absentmindedly
allows the government to offer inculpatory evidence while defense counsel is out
of the courtroom, the mistake results in a violation of the defendant’s Sixth
Amendment right to counsel. And, alternatively, when a judge is aware of defense
counsel’s absence in such a case and intentionally begins trial without counsel in
order to cure attorneys of tardiness, the defendant is deliberately deprived of
counsel in violation of the Sixth Amendment. I am not willing to suggest that trial
judges can send such a message to attorneys at the expense of a defendant’s
constitutional rights. An attorney’s failure to be present should result in sanctions
against the attorney, not constitutional violations against the defendant that strike a
blow to the integrity of the trial process.
VI.
19
See Transcript of Jury Trial, App. at 125:3–5, United States v. Garcia, No. 14-11845
(11th Cir. Dec. 11, 2014) (trial judge refusing to permit reading of transcript of missed testimony
to defense counsel even after prosecution’s request). I would take judicial notice of this fact.
See Fed. R. Evid. 201(b); United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994).
264
Case: 12-15093 Date Filed: 04/26/2017 Page: 265 of 281
We have a duty not only to ensure that our legal proceedings are fair and
impartial but also to make certain that they “appear fair to all who observe them.”
Indian v. Edwards, 554 U.S. 164, 177, 128 S. Ct. 2379, 2387 (2008) (internal
quotation marks omitted). As the Supreme Court emphasized in Cronic, “‘[t]he
very premise of our adversary system of criminal justice is that partisan advocacy
on both sides of a case will best promote the ultimate objective that the guilty be
convicted and the innocent go free.’” 466 U.S. at 655, 104 S. Ct. at 2045 (quoting
Herring, 422 U.S. at 862, 95 S. Ct. at 2555). Indeed, the right to counsel is the
most important right a criminal defendant has and the best means of ensuring a fair
trial; “[o]f all the rights that an accused person has, the right to be represented by
counsel is by far the most pervasive for it affects his ability to assert any other
rights he may have.” Id. at 654, 104 S. Ct. at 2044 (internal quotation marks
omitted).
To put it plainly, defense counsel is a key participant in a criminal trial. He
is both his client’s mouthpiece and his client’s confidant. Counsel’s role includes
viewing, interpreting, and responding to the demeanor of the other trial
participants, including the jurors, witnesses, opposing party, and presiding judge.
His ability to confer with his client about and develop an ongoing strategy for the
case depends on these observations. Moreover, defense counsel influences the
conduct and perceptions of other key participants by his presence and actions. By
265
Case: 12-15093 Date Filed: 04/26/2017 Page: 266 of 281
finding that defense counsel’s absence during the introduction of inculpatory
evidence against his client is harmless error, the Majority devalues defense counsel
and the important role defense counsel plays in ensuring the integrity of the
judicial process.
We all agree that the defendant’s trial in this case was imperfect—his Sixth
Amendment right to counsel was violated when the trial proceeded without his
only counsel present. But, most importantly, the trial was also fundamentally
unfair. The defendant was denied counsel while the prosecution admitted
inculpatory evidence against him—evidence that was used to convict and sentence
him to life in prison. When a district court allows substantive, inculpatory
evidence against a criminal defendant in the absence of any counsel and in the
presence of the jury, I can neither quantify the effects of the error nor declare that
the error was harmless beyond a reasonable doubt.
The absence of defense counsel in these circumstances constitutes
“constitutional error of the first magnitude, and no amount of showing of want of
prejudice w[ill] cure it.” Id. at 659, 104 S. Ct. at 2047 (internal quotation marks
omitted). Such a violation undermines not only the defendant’s individual
constitutional rights but “also the accuracy of the truth-seeking process and thus
the integrity of the criminal justice system itself.” See Stano, 921 F.2d at 1170–71
(Tjoflat, J., dissenting). Affirming this conviction would abdicate my duty both to
266
Case: 12-15093 Date Filed: 04/26/2017 Page: 267 of 281
protect the adversarial process and to preserve the appearance of fairness. See
Gonzalez-Lopez, 548 U.S. at 146, 126 S. Ct. at 2562 (stating that the right to
counsel serves to provide not simply a fair trial but rather “a particular guarantee of
fairness”). Because the defendant received a trial that was neither perfect nor fair,
I respectfully dissent.
267
Case: 12-15093 Date Filed: 04/26/2017 Page: 268 of 281
MARTIN, Circuit Judge, dissenting:
Today’s majority fashions a new requirement that trial counsel must be
missing for a “substantial portion” of the trial before our court can presume a
defendant was prejudiced by his lawyer’s absence. Maj. Op. at 60–73. This
requirement is not in keeping with the Supreme Court’s recognition in United
States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984), that “[w]ithout counsel, the
right to a trial itself would be of little avail.” Id. at 653, 104 S. Ct. at 2043
(quotation omitted). More specifically, this “substantial portion of the trial”
requirement is nowhere to be found in Cronic, which speaks of the denial of
counsel “at a critical stage of [] trial,” with nothing indicating that counsel must go
missing for a certain length of time during his client’s trial before we presume
prejudice. Id. at 659, 104 S. Ct. at 2047 (emphasis added). The majority’s new
test assumes that courts can somehow separate out critical from uncritical portions
of trial based on the amount of time the defendant’s counsel was absent. Judge
Wilson’s dissent ably explains why this arithmetic-based approach won’t work.
See Wilson Op. at 250–54.
The majority’s approach fails to honor the Supreme Court’s reason for
creating the “critical stage” doctrine in the first place. The Supreme Court created
the “critical stage” analysis not for the purpose of slicing and dicing parts of a trial
into what looks (after the fact) to be important and what does not. Rather the
268
Case: 12-15093 Date Filed: 04/26/2017 Page: 269 of 281
Supreme Court relied on its “critical stage” analysis to expand the right to counsel
beyond trial. I can’t fathom that in doing so the Court meant to imply that a
defendant forfeits his Sixth Amendment right to counsel when he needs it most:
during the trial itself. And the Court has certainly never suggested that the
defendant can go without counsel while the government is introducing evidence of
his guilt.
The Supreme Court’s development of the “critical stage” doctrine started
with Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157 (1961). Charles Hamilton
had no lawyer during his arraignment and was later sentenced to death. Id. at 52,
82 S. Ct. at 158. The Court explained that “arraignment . . . is a critical stage in a
criminal proceeding [because] [w]hat happens there may affect the whole trial.”
Id. at 54, 82 S. Ct. at 158–59. For example, the Court continued, arraignment was
a stage at which “[a]vailable defenses may be [] irretrievably lost” (just as at trial).
Id. It is because the harm done to a defendant by standing alone at arraignment is
so similar to the harm of standing alone at trial that the Supreme Court expanded
the right to counsel to arraignments too. Id.
From there, the Supreme Court identified other “critical stages,” always
based on the similarity of the non-trial proceeding to the trial itself. See United
States v. Gouveia, 467 U.S. 180, 189, 104 S. Ct. 2292, 2298 (1984) (“Although we
have extended an accused’s right to counsel to certain ‘critical’ pretrial
269
Case: 12-15093 Date Filed: 04/26/2017 Page: 270 of 281
proceedings, we have done so recognizing that at those proceedings, the accused is
confronted, just as at trial, by the procedural system, or by his expert adversary, or
by both.” (emphasis added) (citation and quotation omitted) (alteration adopted));
see also, e.g., Mempa v. Rhay, 389 U.S. 128, 135–37, 88 S. Ct. 254, 257–58
(1967) (deferred sentence hearing); United States v. Wade, 388 U.S. 218, 236–37,
87 S. Ct. 1926, 1937 (1967) (pretrial, postindictment lineup); White v. Maryland,
373 U.S. 59, 60, 83 S. Ct. 1050, 1051 (1963) (per curiam) (preliminary hearing).
None of these cases show that the Supreme Court has ever “question[ed] the fact
that the trial itself remains a critical stage of any criminal proceeding.” Burdine v.
Johnson, 262 F.3d 336, 347 (5th Cir. 2001). After all, the “[t]rial is the central and
focal point of the prosecutorial continuum, the forum in which the defendant’s
guilt or innocence is determined.” Vines v. United States, 28 F.3d 1123, 1140–41
(11th Cir. 1994) (Birch, J., dissenting).
The majority ruling turns the idea of a “critical stage” on its head. It wields
the “critical stage” inquiry as a sword against defendants, slicing away at the right
to counsel during the trial itself. 1 In addition to being contrary to Supreme Court
1
Professor Pamela S. Karlan describes a similar process of “surreptitious[] redefin[ition]”
with respect to the prohibition on racial discrimination in jury selection articulated in Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). See Pamela S. Karlan, Race, Rights, and
Remedies in Criminal Adjudication, 96 Mich. L. Rev. 2001, 2021 (1998). Professor Karlan
explains that courts “have responded to the fact that many Batson violations might be found
harmless if harmless error analysis were performed by declining to find a violation in the first
place.” Id. In similar fashion, the majority here finds no violation of Cronic by redefining the
270
Case: 12-15093 Date Filed: 04/26/2017 Page: 271 of 281
doctrine, this inquiry is not practical. Despite its hundred-plus pages of exhaustive
treatment of cases from across the courts of appeals, the majority opinion leaves
more questions than answers about when Cronic applies. Would a twenty-minute
disappearance of counsel be enough? A half hour? Ninety percent of the
government’s case-in-chief? How about an absence for all of one government
witness’s testimony? The Supreme Court’s treatment of the “critical stage” makes
clear that we shouldn’t be asking those questions. 2 The question I read Cronic to
require us to ask is much more straightforward. It asks whether the trial ever
proceeded with no lawyer standing between the accused and the government. The
Supreme Court has told us what to do when the answer to that question is yes:
reverse the conviction. See Cronic, 466 U.S. at 659 & n.25, 104 S. Ct. at 2047 &
n.25.
parameters of the right to counsel at a critical stage of trial. By doing so, it avoids automatic
reversal. As Professor Karlan explains, “when courts cannot calibrate the remedy, they fudge on
the right instead.” Id. at 2015.
2
Though I agree with Judge Rosenbaum’s explanation of Cronic and structural error in
Parts I and II of her well-reasoned concurrence, I, like Judge Wilson, cannot agree with the
proposal for a de minimis carve-out. Applying a de minimis exception dulls the precision of a
presumed-prejudice rule and creates line-drawing issues in the same way as does the majority’s
approach. After all, if a seven-minute absence is so de minimis that we can examine actual
prejudice, what absence would warrant the Cronic presumption? Again, twenty minutes? A half
hour? It’s not clear how a court would decide. More importantly, I do not think we should sort
large from small structural errors based on proportions and percentages.
271
Case: 12-15093 Date Filed: 04/26/2017 Page: 272 of 281
I certainly understand that reversing a conviction because counsel was gone
for less than 1% of the entire trial may seem like an overcorrection. But the
Supreme Court’s insistence that the total absence of counsel falls within the “very
limited class” of structural errors reflects the Court’s belief that the damage from
such an absence is impossible to measure. See Johnson v. United States, 520 U.S.
461, 468, 117 S. Ct. 1544, 1549 (1997). It’s true, as the majority points out, that
the Supreme Court “has applied harmless-error analysis to a wide range of errors
and has recognized that most constitutional errors can be harmless.” Arizona v.
Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263 (1991). See Maj. Op. at 76–
77. But the Supreme Court has also repeatedly recognized that it is structural error
“when counsel [i]s either totally absent, or prevented from assisting the accused
during a critical stage of the proceeding.” Cronic, 466 U.S. at 659 n.25, 104 S. Ct.
at 2047 n.25; see, e.g., Woods v. Donald, 575 U.S. __, 135 S. Ct. 1372, 1375
(2015); Bell v. Cone, 535 U.S. 685, 695–96, 122 S. Ct. 1843, 1850–51 (2002);
Geders v. United States, 425 U.S. 80, 91, 96 S. Ct. 1330, 1337 (1976); Herring v.
New York, 422 U.S. 853, 864–65, 95 S. Ct. 2550, 2556 (1975); Brooks v.
Tennessee, 406 U.S. 605, 612–613, 92 S. Ct. 1891, 1895 (1972); Hamilton, 368
U.S. at 55, 82 S. Ct. at 159.
The majority reads this history to say there’s no reason to distinguish the
right at issue here from those rights the Supreme Court has subjected to harmless-
272
Case: 12-15093 Date Filed: 04/26/2017 Page: 273 of 281
error review. Indeed, the majority says it would be “special treatment” to exempt
the right to have your lawyer with you at trial from harmless-error review. Maj.
Op. at 126. This has it the wrong way around. The right to the presence of counsel
is one of the rare rights for which the Supreme Court has presumed prejudice. It
did so for a simple reason: “Of all the rights that an accused person has, the right to
be represented by counsel is by far the most pervasive for it affects his ability to
assert any other rights he may have.” Cronic, 466 U.S. at 654, 104 S. Ct. at 2044
(quotation omitted); see also Kaley v. United States, 571 U.S. __, 134 S. Ct. 1090,
1107 (2014) (Roberts, C.J., dissenting) (“In many ways, this is the most precious
right a defendant has, because it is his attorney who will fight for the other rights
the defendant enjoys.”). The Supreme Court singled this right out for “special
treatment,” and it is not for us to withdraw that protection.
I realize that debates like the one we have here could lead the Supreme
Court to decide, in the future, that the right to counsel at a “critical stage” of trial is
subject to harmless-error review. But it has not done so yet. And in the absence of
such a directive, we should not be cutting away at the precious right to counsel
simply because we don’t like the prescribed remedy. The majority does that here.
Indeed the majority distorts the right to counsel at a “critical stage” to such an
extent that now the absence of defense counsel when the government is
273
Case: 12-15093 Date Filed: 04/26/2017 Page: 274 of 281
introducing inculpatory evidence—the time when a defendant needs his counsel
the most—is harmless. I respectfully dissent.
274
Case: 12-15093 Date Filed: 04/26/2017 Page: 275 of 281
JILL PRYOR, Circuit Judge, dissenting:
Despite our Court’s unanimous agreement that Alexander Roy’s Sixth
Amendment right to counsel was violated when his lawyer was absent briefly
during his criminal trial, collectively we have spilled a great deal of ink sorting out
whether and why this violation does or does not give Mr. Roy the right to a new
trial. A majority of this Court has decided that even though Mr. Roy’s lawyer’s
absence during the taking of evidence directly probative of guilt violated the Sixth
Amendment, this constitutional violation does not warrant a new trial because the
error was harmless. I understand the appeal of the majority’s approach. On this
record, I would not find it difficult to conclude that Mr. Roy suffered no prejudice
from his lawyer’s brief absence from the courtroom. But the Supreme Court has
told us not to look to the effect of the error in this case to determine whether a new
trial is required. So I write to explain why I dissent from the majority’s decision.
In my view, because Mr. Roy had no counsel beside him at trial while a
witness gave incriminating testimony against him, we must reverse his conviction
and remand for a new trial.1 The Supreme Court explained in United States v.
Cronic that “if the accused is denied counsel at a critical stage of his trial,” such
1
I follow the lead of my colleagues in limiting my analysis to circumstances in which the
government offers incriminating evidence while a defendant’s lawyer is absent, as was the case
here. I do not mean to suggest, however, that counsel’s absence during the taking of directly
inculpatory evidence is the only circumstance in which the absence of counsel could amount to a
constitutional violation. See infra note 2.
275
Case: 12-15093 Date Filed: 04/26/2017 Page: 276 of 281
error is structural, meaning it is not subject to a harmless error analysis. 466 U.S.
648, 659 (1984). Rather, prejudice is presumed. Id. Contrary to the position of a
majority of the Court, nothing in Cronic suggests that counsel must be absent for a
substantial part of a critical stage for the error to be structural or that structural
error may be judged with reference to minutes, percentages, or proportions of a
trial.2 By my reading of Cronic (a reading I share with Judges Wilson and
Martin), Mr. Roy’s lawyer’s absence, brief though it was, while the government
was introducing evidence of his guilt meant that Mr. Roy was “denied counsel at a
critical stage of his trial,” a structural error requiring reversal. Id.
I maintain this view even though were we to apply a harmless error analysis
to the facts of this case, I would be inclined to agree with a majority of my
colleagues that the absence of Mr. Roy’s counsel from the courtroom caused him
no prejudice: counsel’s absence was very brief, particularly with reference to the
trial as a whole; we know from the transcript what transpired in counsel’s absence
and when he returned; and the testimony counsel missed largely was repeated upon
his return. I believe that a new trial is required, however, because the Supreme
Court has directed in no uncertain terms that when an error is structural, it is
2
I note Judge Martin’s observation that the Supreme Court’s inclusion of proceedings
beyond the trial itself in what constitutes a “critical stage” reflects an expansive view of the
denial of the right to counsel for which prejudice is presumed, not a narrower one. See Martin
Op. at 267-68.
276
Case: 12-15093 Date Filed: 04/26/2017 Page: 277 of 281
categorically so. A “case-by-case inquiry into prejudice” simply is inappropriate
where structural error exists. Strickland v. Washington, 466 U.S. 668, 692 (1984);
see Neder v. United States, 527 U.S. 1, 14 (1999) (describing structural error as
“categorical”). 3 Regardless of how we couch it, any evaluation of facts specific to
Mr. Roy’s lawyer’s absence necessarily is not categorical.4 So, even though it’s
tempting, we may not peek at those facts in determining whether the error is
structural. See Cronic, 466 U.S. at 658 (noting that structural errors are those
errors that, as a category rather than individually, involve “circumstances that are
so likely to prejudice the accused that the cost of litigating their effect in a
particular case is unjustified”).
The result Cronic dictates (and my dissenting colleagues and I would reach)
reflects that “[t]he assistance of counsel is one of the safeguards of the Sixth
Amendment deemed necessary to insure fundamental human rights of life and
3
I find helpful Judge Wilson’s discussion of the Supreme Court’s recent decision in Williams
v. Pennsylvania, 136 S. Ct. 1899 (2016). Williams concerned the failure of a judge to recuse on
account of a conflict rather than the absence of counsel, but both can be structural errors, so in
that sense the case is instructive. In Williams, as Judge Wilson explains, the Supreme Court held
that the judge’s failure to recuse was structural error, requiring reversal and a new appeal, even
though the Court had ample reason to conclude that the result of the appeal would have been the
same without the error. See Wilson Op. at 259-60. If in deciding whether the error was
structural the Supreme Court had engaged in a case-by-case (rather than categorical) inquiry into
whether the effect of the judge’s failure to recuse was known or could be determined, the Court
most likely would have found no structural error.
4
Of course, in an absence of counsel case, to determine that structural error has occurred it
may be necessary for a court to find facts related to whether counsel was absent and whether
inculpatory evidence was presented during the absence. But once a court answers “yes” to these
preliminary questions, no case-by-case determination is permitted.
277
Case: 12-15093 Date Filed: 04/26/2017 Page: 278 of 281
liberty. The Sixth Amendment stands as a constant admonition that if the
constitutional safeguards it provides be lost, justice will not still be done.” Gideon
v. Wainwright, 372 U.S. 335, 343 (1963) (alterations and internal quotation marks
omitted).
Considering that Mr. Roy’s case is the first this Circuit has seen where a sole
defendant is left without counsel during the presentation of incriminating evidence,
I think it’s fair to say such circumstances are rare. The majority worries, however,
that “[b]ecause there is no principled way to limit an application of Cronic to
single-defendant trials, a holding in favor of Roy would have far-reaching effects”:
Whatever measures a judge takes . . . , it will be practically impossible
to prevent presumptive prejudice error in a large, multidefendant,
long-running trial. See Green v. Arn, 809 F.2d 1257, 1265 (6th Cir.
1987) (Boggs, J., dissenting) (“If a reversal is mandated whenever
counsel (even retained) is absent from the courtroom for any
significant period, we make such an escape a sure ticket to a new trial.
In multi-defendant cases, judges will be required to keep a continual
head count . . . lest cagey counsel be able to invoke this new rule.”).
Maj. Op. at 57-58 (quoting United States v. Roy, 761 F.3d 1285, 1323 (11th Cir.)
(Carnes, C.J., dissenting) (some internal citations omitted), reh’g en banc granted,
opinion vacated, 580 F. App’x 715 (11th Cir. 2014)). I am not as troubled by the
burden on trial judges—nor do I believe it would be practically impossible—to
ensure, even in lengthy multi-defendant trials, that each defendant is never left
without a lawyer present.
278
Case: 12-15093 Date Filed: 04/26/2017 Page: 279 of 281
Judge Rosenbaum points out that, as guardians sworn to protect the
constitutional right of defendants to counsel in criminal trials, trial judges
necessarily are charged with vigilantly policing that right. See Rosenbaum Op. at
189-90, 204. In most every case, fulfilling this duty will not be onerous. That is
because accompanying the duty to protect defendants’ right to counsel is the trial
judge’s singular authority to control the courtroom, including the timing and
circumstances under which the trial can proceed.
As Judge Rosenbaum observes, trial judges can and regularly do ask the
lawyers for all parties whether they are ready before proceeding. See id. at 204. In
the case of a multi-defendant trial, perhaps the trial judge will have to read a dozen
or so co-defendants’ names and confirm the presence of counsel for each one.
Maybe this will take an extra minute or two at the beginning of the trial day and
after each recess. I am not bothered by adding a few minutes to the trial day to
ensure that each defendant in the courtroom has a lawyer present.
I am confident that trial judges can keep a lawyer for each co-defendant
present throughout the taking of evidence. At the beginning of a multi-defendant
trial, and during the course of its other instructions to counsel and the parties, the
judge can easily pause to instruct the lawyers for the defendants that if any lawyer
needs to leave the courtroom during the taking of evidence, with the result that her
client would be left without a lawyer representing him during her absence, the
279
Case: 12-15093 Date Filed: 04/26/2017 Page: 280 of 281
lawyer attempting to depart must inform the court before leaving. 5 The trial judge
can certainly warn that if a lawyer violates this instruction she will face sanctions,
or worse.6 See 18 U.S.C. § 401 (permitting a district court to punish by fine or
imprisonment, or both, if an attorney disobeys the court’s “lawful writ, process,
order, rule, decree, or command”).
If a lawyer speaks up and says he needs to be excused from the courtroom
temporarily, the trial judge has choices available, none of which is likely to take a
substantial amount of time or vary much from how courts ordinarily handle such
situations. The judge could ask the lawyer to wait until a recess, briefly pause the
taking of any evidence and await the lawyer’s return, or conduct a colloquy with
5
I agree with the majority that the presence of lawyers for co-defendants—even when a co-
defendant’s lawyer agrees to cover for an absent defense lawyer—is irrelevant to the structural
error inquiry unless the defendant knowingly and voluntarily waives the right to the presence of
his own lawyer. See Maj. Op. at 56-57; Olden v. United States, 224 F.3d 561, 568-69 (6th Cir.
2000) (holding that defendant was denied counsel even though his lawyer asked another
defendant’s lawyer to “take notes or whatever” in the defendant’s lawyer’s temporary absence);
United States v. Russell, 205 F.3d 768, 769-72 (5th Cir. 2000) (reversing conspiracy conviction
under Cronic when a lawyer representing a co-defendant agreed to “sit in” for the defendant’s
absent counsel); Green, 809 F.2d at 1259-63 (upholding reversal of conviction of Green, one of
three defendants at trial, due to her lawyer’s temporary absence during the cross-examination of
a witness even though Green’s lawyer and Green’s co-defendants’ lawyer had agreed that the co-
defendants’ lawyer would do the cross-examination on behalf of all defendants).
6
And given that many defense lawyers are repeat players in the courts in which they
practice, the threat of sanctions (and any accompanying reputational harm) likely would suffice
to prevent attorney misconduct. I acknowledge the possibility of intentional attorney misconduct
in an attempt to create error, but I have enough faith in our colleagues at the Bar to believe that if
it occurred at all, it would be exceedingly rare and could be dealt with using all the means at the
courts’ disposal. The remote possibility that the rare lawyer might abuse the system in this way
does not demonstrate that my interpretation of Cronic would lead to absurd results. Neither
should it otherwise guide or influence our jurisprudence.
280
Case: 12-15093 Date Filed: 04/26/2017 Page: 281 of 281
the departing lawyer’s client to ensure that any waiver of the defendant’s right to
the presence of counsel is made voluntarily and with full knowledge of his rights.
As I see it, any additional work on the part of the trial judge to ensure that
each defendant always has one lawyer present in the courtroom to represent him
during the taking of evidence almost never will be onerous. And if the burden is,
on the rare occasion, onerous, let it be so: trial judges are sworn to protect the
constitutional rights of the criminal defendants who stand trial before them. I can
scarcely think of a more important duty than the protection of the right to counsel.
If ensuring that right is protected takes an hour, three hours, or even a full day of a
lengthy trial, I am comfortable that the burden on the trial judge is outweighed by
the gravity of the fundamental constitutional rights of criminal defendants.
* * *
I respectfully dissent because Mr. Roy’s Sixth Amendment right was
violated when he went without counsel while the jury heard testimony that directly
incriminated him. I would reverse his conviction under Cronic and remand for a
new trial.
281