Constitutional Law

Lawyer's seven-minute absence doesn't require new trial, en banc court rules

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A teacher convicted of child pornography isn’t entitled to a new trial as a result of his lawyer’s seven-minute absence during testimony by a computer forensics expert, an en banc appeals court ruled last week.

The Atlanta-based 11th U.S. Circuit Court of Appeals ruled in an 8-3 opinion (PDF) that the absence violated Alexander Roy’s right to counsel, but the error was harmless, reports. The majority, concurring and dissenting opinions totaled 281 pages, one of the longest opinions issued by the court in decades, according to the article.

Chief Judge Ed Carnes said in the 127-page majority opinion that the evidence of Roy’s guilt was overwhelming, and applying the harmless error rule “serves vital interests, chief of which is conserving scarce judicial interests by avoiding pointless retrials.”

Roy’s lawyer, Jay Kirschner, had returned from lunch six minutes late on the third day of a six-day trial in June 2012. Because the judge started the proceedings one minute early, Kirschner missed seven minutes of a trial that lasted 31.4 hours, Carnes said.

Roy had been convicted of attempted child enticement for answering an ad posted by police in a sex sting, and of four counts of possession of child pornography

Hat tip to the Marshall Project.

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