Roy: Defense Counsel's Absence from Trial during presentation of inculpatory evidence is Cronic error

In U.S. v. Roy, No. 12-15093 (Aug. 5, 2014) (2-1), the Court reversed the defendant’s convictions for possession of child pornography, holding that the absence of defendant’s trial counsel during a critical stage of trial when inculpatory evidence was admitted against him violated the Sixth Amendment. At Roy’s trial, evidence admitted to prove that Roy knowingly possessed photographs of a minor engaged in sexually explicit conduct was presented to the jury during his lawyer’s absence from the courtroom. The Court explained that “[t]he absence of counsel during the presentation of inculpatory evidence used by the government to convict the defendant eliminates the opportunity to decide whether to lodge an objection and how to frame an objection, as well as the ability to conduct cross-examination.” The Court held that this constituted error under U.S. v. Cronic. Pointing out that “Cronic error is structural error,”the Court noted the practical difficulties of discerning the harmlessness of the error in the denial of counsel during the presentation of inculpatory evidence. The Court reversed the convictions without engaging in harmless error analysis. The Court held that even though defense counsel did not object once he returned to the courtroom, Cronic error is not subject to plain error review, and defense counsel could not have known what evidence he missed, as he was absent. The Court rejected the dissent’s argument that the Cronic error did not affect all the counts of conviction, pointing out that the counts in this case were “interrelated.” The Court also rejected the argument that defense counsel’s absence was “opportunistic.” “Our confidence in the integrity of lawyers, who are admitted to practice in our courtrooms as officers of the Court and bound by rules of professional responsibility, satisfies us that our decision today will not go so far as to motivate them to place their licences to practice law in jeopardy by, as the dissent suggests, strategically slipping out of the courtroom when the judge is not looking and when they think inculpatory evidence is coming.”