When Defense Counsel Misses Part of a Trial: United States v. Roy

As Judge Ed Carnes recounts at the start of the 281-page ruling of the en banc Eleventh Circuit in United States v. Alexander Roy,

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.

In light of this error—which the parties agree was a violation of Roy’s Sixth Amendment right to counsel—can Roy’s convictions for five sex-related crimes involving minors stand?

The answer hinges on the scope of the harmless error rule and the Supreme Court’s decision in United States v. Cronic, 466 U.S. 648 (1984). No one disputed that Roy’s trial was tainted by a violation of his right to counsel. What, then, to do about the error? Does the harmless error rule apply—meaning the conviction satisfies the Constitution so long as the error can be considered harmless (i.e., it had no bearing on the trial’s outcome). Or is this “one of those rare cases where the presumption of prejudice applies” (i.e., structural error, which triggers a presumption that the error affected the trial’s outcome)? The presence of structural error requires automatic reversal of a conviction. Cronic, 466 U.S. 648 (1984), which the court frames as one of several exceptions to the harmless error rule, held that structural error occurs “when a criminal defendant has been completely denied the right of counsel for a critical stage of trial.” (Other examples of structural error include an erroneous reasonable doubt instruction, the denial of the right to self-representation, and the denial of the right to a public trial.)

In Roy, the Eleventh Circuit held that defense counsel’s brief absence from the courtroom should be reviewed for harmless error, not structural error. It wasn’t persuaded that this circumstance fell under the Cronic exception to the harmless error rule.

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.” 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 [a deputy] whom he cross-examined for 45 pages of the trial transcript. Counsel also called his own competing expert witness in an attempt to rebut [the deputy’s] testimony. And he gave a vigorous closing argument.


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 answer from a government witness be enough to constitute a critical stage of the trial? Under Roy’s extreme view it would be. 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 crossexamination) is a separate stage of the proceedings against the defendant. Trials don’t consist of thousands of critical stages.

The court went on to conclude that the error was a harmless one.

Accusing the majority of a “mechanical, minutes-and-seconds approach,” the dissent argues that the error implicated Cronic, and qualified as structural error because of the impossibility of determining whether the error harmed the defendant.

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.”

On precedent and good sense, I think the Eleventh Circuit got this one right. The dissent, I believe, demands something too close to perfection. As the majority emphasizes, our Constitution is a “document designed to govern imperfect people” and requires a fair trial, not a perfect one.

And while the dissent envisions itself as guardians of the “integrity of our system” and a defendant’s right to a fair trial, I’m not so sure. As the late Harvard professor William Stuntz explained in The Collapse of the American Criminal Justice System, procedural strictness doesn’t necessarily advantage criminal defendants. That is, when jury verdicts readily give way to mandated do-overs because of procedural violations, the trial system becomes more expensive, more burdensome, and, because private litigants and the government have limited resources, rarer. The more that our system is one of plea bargaining and not trials, the more power prosecutors have. Moreover, I agree with the majority that undoing Roy’s conviction would undermine the integrity of the judicial process in the public’s eyes, not the other way around.

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