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Does my lawyer need to be present in the courtroom for my entire trial?


Yes, your lawyer needs to be present, as the 11th. Circuit Court of Appeals decided in U.S. v. Roy, on August 5, 2014. As a Jacksonville criminal defense lawyer, I would never be absent for any part of a trial. But Mr. Roy's criminal defense attorney was temporarily absent from the courtroom when testimony was admitted into evidence, contributing to his conviction. As a result, Roy claimed that his conviction was obtained in violation of his Sixth Amendment right to counsel. He argued that a new trial is required because his counsel was absent during a "critical stage" of his case. Apparently, the afternoon session of Roy's trial began when his lawyer was not in the courtroom and during this time, evidence directly inculpating Roy was presented to the jury.

Roy responded to an ad on Craigslist supposedly soliciting sex for two women. The ad was phony, having been placed by cops in a reverse sting operation, who were hoping to ensnare someone who expressed an interest in having sex with an underage girl. Roy responded to the ad. The police arranged a meeting at a Waffle House restaurant in Kissimmee, Florida. Roy drove to the restaurant and entered the parking lot, but then drove away without ever parking his vehicle. He was nonetheless pulled over and arrested. His home was searched and child pornography was found on his computer. He was indicted by a federal grand jury on one count of attempting to entice a minor to engage in sexual activity and four counts of possession of child pornography.

During a portion of Roy's jury trial, his lawyer was absent from the courtroom immediately following a lunchtime recess. Prior to the recess, the judge had said that the trial would re-commence at 1:30 pm. Instead, it started at 1:29 pm without defense counsel present; counsel did not make it back into the courtroom until 1:36 pm. During the lawyer's absence, the government offered testimony from its computer forensics expert witness. The direct examination of the witness continued after the lawyer arrived. The jury found Roy guilty and he was sentenced to life imprisonment.

The 11th. Circuit Court of Appeals reversed Roy's conviction and ordered a new trial because Roy was denied counsel during a critical stage of his trial. His lawyer was not present to hear all the questions being asked of the expert witness, nor could not object to the questions being asked. Luckily for Roy, he gets a second bite at the apple.

Lesson Learned:

Roy's lawyer's failure to come back to court on time won Roy a new trial. The trial judge apparently just couldn't wait for Roy's lawyer to return from lunch, who was six or seven minutes late. During that time a whole eight questions were asked by the prosecutor of the expert witness. Now, the entire trial must be done over, thanks to an impatient judge. But why in the world would a federal court judge (or any judge for that matter) re-commence a trial without the defendant's lawyer being present? Don't these judges know the error they are committing?

I have been late to court before. It happens. I have even been yelled at for being late by judges who, without fail, want to move the proceeding along. This has happened to every trial lawyer I know. But I have never had a judge start a trial or re-commence a trial without me. What judge in his right mind would actually re-commence a trial without the defense lawyer being present? What's more, what prosecutor would start questioning a witness without the defense lawyer being present? Was this done to punish or embarrass the lawyer? Was the judge trying to send a message to the tardy lawyer? Probably. Couldn't the judge have waited the few extra minutes it took for the lawyer to return from lunch? There is no explanation in the decision as to why the trial judge didn't wait, nor was the judge chastised by the higher court (as he should have been) for not waiting for the defense lawyer to return to the courtroom. Whatever the reason, this peculiar move by the trial judge means a great big break for Mr.Roy, who now gets a new trial.

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