Eleventh Circuit Finds Defense Attorney’s Absence During Admission of Direct Inculpatory Testimony Constitutes Reversible Error Under Cronic

In United States of America v. Alexander Michael Roy, No. 12-15093 (Aug. 5, 2014), Appellant Alexander Michael Roy, a middle school teacher charged with enticing or attempting to entice a minor to engage in sexual activity and four counts of possession of child pornography, challenges his conviction based on a seven minute absence by his attorney during the giving of testimony by the state’s witness.  Roy claims that his attorney’s absence amounts to a Sixth Amendment violation and relies on United States v. Cronic, 466 U.S. 648 (1984), which presumes prejudice when counsel is not present during a “critical stage” of the trial.  The Eleventh Circuit, in a 2-1 decision, found that Defense Counsel’s absence during the presentation of direct inculpatory evidence was per se grounds for reversal.

Roy had been the subject of an undercover operation by the Sumter County Sherriff’s Office during which an ad was placed on Craiglist offering a sexual encounter with a mother and her thirteen-year-old daughter.  Roy responded and arranged a meeting with the two. Although he arrived as scheduled, he left the parking lot without exiting his vehicle and was apprehended shortly thereafter with condoms and lubricant on his person.  His arrest led to two searches of his home, which recovered a desktop computer, laptop, thumb drive, and three compacts discs, all containing hardcore pornographic images of minors.

On the day in question at trial, the government called its computer forensics expert witness who testified regarding certain folders on Roy’s computer containing images of a bound, nude, white female with a bag secured over her head by duct tape.  He further testified as to the dates the photos were taken, the particular type of camera with which they were taken, and that the folders would have been created by the computer’s user.  The testimony began at 1:29 p.m., and defense counsel returned at 1:36 p.m.

The majority concluded that this seven-minute period constituted denial of counsel at a critical stage under Cronic, requiring the court to reverse Roy’s conviction on all counts and remand for a new trial.  The holding is restricted to instances in which direct inculpatory evidence is submitted in the absence of counsel and distinguishes this case in that respect from Vines v. United States, 28 F.3d 1123 (11th Cir. 1994), where the evidence given in absence of counsel did not provide a direct basis for conviction.  Additionally, the majority adopts the rule based on a Sixth Circuit decision that “absence [of counsel] from the proceedings is deficient performance as a matter of law and prejudice is presumed.”  Green v. Arn, 809 F.2d 1257, 1263 (6th Cir. 1987).  Further, because Cronic error is structural error, it is not subject to plain error review or harmless error analysis, which the majority states would be a “problematic undertaking” under the circumstances and would require pure speculation.

Chief Judge Carnes’ vigorous dissent criticizes the application of Cronic, the refusal to apply a harmless error analysis, and the idea that seven minutes of testimony could constitute a stage of trial and expresses concern regarding the new precedent.  First, the holding presents excessive temptation to attorneys who may now exit the courtroom at a strategic point, for instance when key testimony is anticipated, and thereby secure a reversal of their client’s conviction.  Similarly, Carnes insists that the holding goes too far, requiring reversal despite an abundance of evidence of the defendant’s guilt, of the harmlessness of the error, or of the attorney’s conduct or motives and noting that these types of decisions, where the defendant’s conviction is reversed on what might be termed a technicality, undermines the public’s confidence in the judiciary.

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