Constitutional Law

Trial went on despite defense lawyer's late return from lunch; 11th Circuit overturns conviction


Apparently the judge and the prosecutor didn’t notice when the lawyer for Alexander Michael Roy was late in returning from lunch.

The trial resumed without the lawyer, and Roy had no lawyer present for seven minutes. During that time, prosecutors introduced incriminating evidence in Roy’s child pornography trial. Because Roy was denied counsel at a critical stage of trial, his Sixth Amendment rights were violated and his conviction must be overturned, according to a federal appeals court. The Southern District of Florida Blog has highlights from the 2-1 decision (PDF) on Aug. 5 by the Atlanta-based 11th U.S. Circuit Court of Appeals.

Roy was charged after undercover police in Florida placed an undercover ad soliciting sex, told Roy the ad was for a woman and her 13-year-old daughter, and arranged a Waffle House meeting, according to the decision. Roy arrived but drove away without leaving his car; he was pulled over and arrested, and a search of his home turned up a computer and laptop containing child pornography. He was charged with attempting to entice a minor to engage in sexual activity and possession of child pornography.

During the time that Roy’s lawyer was absent from the courtroom, a computer forensics expert testified for the government about images he found on Roy’s computer of a nude, hooded female whose feet were bound to a table. When he arrived, the lawyer didn’t object to testimony being taken in his absence. The person in the photo was later identified as a minor who was 15 when the photos were taken. Roy had a relationship with her. He was convicted on all charges and sentenced to life in prison.

Judge Edward Carnes dissented. “For all that we can tell,” he wrote, “counsel may have deliberately taken advantage of his own tardiness and carefully avoided any attempt to correct the problem, hoping that he could have a get-out-of-jail-free card in his pocket for his client. If so, it worked. The majority decides that the defendant’s convictions for attempted child enticement and for possession of child pornography, most of which the defendant produced himself, must be set aside because of his counsel’s brief absence, even though the record conclusively establishes that the absence could not possibly have prejudiced the defendant.”

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