Trials & Litigation

Pro se defendant gets retrial because judge didn't talk to him before excluding him for misbehavior


A defendant in an Iowa drug case who insisted on representing himself at trial and then apparently became frustrated and misbehaved when he couldn’t figure out how to examine a police witness without violating hearsay rules was properly removed from court on the first day of trial.

But Judge Nathan Callahan erred when he excluded Dontrayius Eugene Carey for the remainder of the Black Hawk County trial without first informing him that he could return to court if he behaved himself, a state appeals court says.

While such a warning is not required in every case, depending on the circumstances, instructing an attorney appointed over Carey’s objections to talk with him about his right to testify and tell him he could come back to court if he followed the rules wasn’t sufficient, the Iowa Court of Appeals held in its Wednesday opinion (PDF),

Although the court-appointed lawyer, Mark Milder, said Carey had threatened him when he tried to discuss these issues with his client at the jail after the defendant was excluded and had a history of violent behavior, putting the lawyer in fear for his safety if Carey returned to court during the trial, Callahan should have discussed these claims with Carey directly, the appeals court said.

“It is possible a hearing with Carey present would have revealed he remained unwilling or unable to control his disruptive behavior and could not be returned to the courtroom,” the court writes. “However, because he was never offered on the record an opportunity to reclaim his right to be present in the courtroom upon the assurance of good behavior, we cannot be sure.”

Hat tip: Associated Press

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