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Case of Child Porn Suspect With AWOL Lawyer Gets En Banc Rehearing

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By William Peacock, Esq. on September 08, 2014 6:30 PM

Alexander Michael Roy, 31, was an eighth-grade teacher. He's now a convicted felon, or at least he might be after the Eleventh Circuit makes up its mind on his appeal of a conviction for online enticement of a minor and five counts of child pornography possession.

After Roy was caught in a sting operation, convicted, and sentenced, the Eleventh Circuit reversed his conviction because the trial proceeded for seven minutes while his attorney was late returning from lunch. Though his attorney failed to object, and though the testimony was only tangentially related to the most severe charge -- enticing a minor, which carries up to a life sentence -- the majority of the panel held that his right to counsel at all critical stages of the trial was violated, necessitating an automatic reversal.

Chief Judge Edward Carnes dissented vehemently from the automatic rule, predicting gamesmanship by defense attorneys. Something he said must have been persuasive, it seems, because less than a month after the initial opinion was filed, the court granted an en banc rehearing [PDF].

A Sting, Manufactured Porn

Roy was caught by the simplest sting imaginable: A police officer posted an online ad posing as a mother and her underage daughter looking for an intimate encounter. Roy allegedly responded, was caught, and a search of his home turned up chat records with, and images of, an underage victim with whom he had previously carried on a relationship.

Long story short, Roy was charged, tried, and convicted, but on one of the days of his trial, his attorney was seven minutes late coming back from lunch. Somehow, nobody other than the court reporter, who noted the absence on the transcript, noticed. Roy's counsel missed a handful of inculpatory questions about where the images of the underage victim were found, as well as graphic depictions of the images.

Critical Stage, No Harmless Error Analysis

Citing the U.S. Supreme Court's holding in United States v. Cronic, the majority held that Roy's attorney was absent during a "critical stage" of his trial, which requires reversal and a new trial per se.

The most controversial aspect of the ruling was that "harmless error" could never apply. The majority, citing past circuit precedent, held that "Cronic error is structural" and "where actual or constructive denial of assistance of counsel occurs a per se rule of prejudice applies."

The majority also distinguished a very similar Eleventh Circuit case, Vines v. United States, where the court upheld a conviction despite a tardy attorney. In that case, the evidence presented related to a co-defendant's guilt and was not directly inculpatory.

Defensive Gamesmanship

Chief Judge Carnes, in dissent, argued that harmless error should apply -- the evidence presented related to the lesser possession charges, while the online enticement charge alone garnered a life sentence -- and worried about the gamesmanship that could result from the majority's per se rule for tardy attorneys missing inculpatory evidence.

He was especially irked that Roy's counsel didn't even object to the trial proceeding in absentia of counsel.

"For all that we can tell, 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," Carnes wrote. "If so, it worked."

He then predicted that attorneys would sneak out at critical stages and that judges, "like kindergarten teachers, will be forced to keep an eye on their lawyer-children at all times to prevent one from toddling away without being noticed."

"The majority holds that no matter how strong the evidence of the defendant's guilt, all a defense attorney has to do to guarantee an automatic reversal of his client's conviction on any and all counts is to be outside the courtroom while a witness gives a single inculpatory answer on any count against his client."

The majority wasn't convinced:

"Our confidence in the integrity of lawyers, who are admitted to practice in our courtrooms as officers of the Court bound by rules of professional responsibility, satisfies us that our decision today will not go so far as to motivate them to place their licenses 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, to invite reversible error in the event of a conviction."

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