U.S. v. Garcia, Eleventh Circuit Court of Appeals, Filed 11/19/18: Plain, Obvious Constitutional Error Does Not Require Reversal
In U.S. v. Garcia, the Eleventh Circuit Court of Appeals affirmed the defendant’s conviction for falsifying tax returns even though they found plain, obvious constitutional error where the district court judge allowed evidence to be introduced to the jurors while the defendant and defendant’s trial counsel were not in the courtroom.
The Eleventh Circuit begins by noting that:
- It is a “troubling case;”
- There is no doubt that constitutional error occurred;
- The error was plain and obvious; and
- The Court violated the defendant’s right to counsel, her right to confront the witnesses against her, and her right to be present at trial.
So, why didn’t they reverse the convictions?
Garcia’s trial lawyer purposefully did not object or preserve the record for appeal. Seizing on this fact, the Eleventh Circuit analyzed her issues on appeal for plain error – noting as they did so that they might have ruled differently had trial counsel objected during trial…
What Were the Facts of Garcia?
Although there were a number of other issues on appeal, the one that the Eleventh Circuit spent the most time on was the Due Process violation when the district court proceeded with trial despite the absence of defendant and defendant’s trial counsel for a portion of a government witness’s testimony.
Following the lunch break, the defendant and her attorney were caught in a crowd at the security station in the courthouse and were delayed in returning to the courtroom:
The prosecutor explained that the court had resumed on time after the Friday lunch break, but that the defendant and her lawyer were not there because they were caught up in a big crowd at the security station in the courthouse.
The judge, no doubt annoyed at the defendant and defense counsel’s lack of punctuality, began the proceedings without them. The judge later suggested that the defendant had “voluntarily absented herself” from the proceedings…
When they arrived, defense counsel did not object or move for a mistrial. The next morning, the prosecutor called for a conference with the judge, where the prosecutor suggested perhaps defense counsel should object, but the defense attorney declined:
After suggesting that the defendant had voluntarily absented herself this time, the court, “out of an abundance of caution,” invited the defendant’s lawyer to “order the transcript and review it,” and welcomed the exploration of any “issue” of concern. Finally, the prosecutor bluntly asked defense counsel: “You are not going to state an objection at this point?” Defense counsel replied: “Not at this time, no.” At no point during this extended sidebar (or, in fact, at any time during the balance of the trial) did defense counsel offer any objection, flag any issue, or ask the trial court for any remedial relief. The record could not be clearer that counsel deliberately chose to say nothing and raise no objection.
The defense attorney did not object, did not move for a mistrial, and made no effort to preserve the record for appeal or correct the judge’s error.
What is the Standard of Review on Appeal?
Your trial judge makes a mistake of law, you are convicted, and you file an appeal. If the appellate court agrees that the judge made a mistake, they reverse your conviction, right?
Not so fast… as the Court explains in detail in Garcia, there are different standards of review that appellate courts must apply when they are deciding cases, and, in many cases, if your trial lawyer did not preserve the record for appeal, you lose.
What are the standards of review on appeal and why was Garcia’s conviction affirmed despite what the Court describes as “plain and obvious” constitutional error?
Ordinarily, the appellate court will first determine whether the trial court committed error. Did they make a mistake during trial, and did the defense attorney object and give the court the opportunity to correct the mistake, if possible?
If the appellate court finds that the judge did commit error, that is not the end of the analysis. The appellate court will then determine whether the judge’s mistake was harmless error.
The government has the burden of proving that the mistake was harmless beyond a reasonable doubt – if there was substantial evidence of a defendant’s guilt and if there is scant likelihood that the judge’s mistake would have affected the outcome, appellate courts will affirm a conviction despite the error.
But, what happens if the defense attorney does not make a contemporaneous objection, bringing the error to the court’s attention and giving the court an opportunity to correct it?
If defense counsel does not object to the court’s error, the appellate courts can still review for plain error – a standard that is difficult to meet and usually results in the appellate court affirming the conviction.
With plain error, the burden of proof is on the defendant and not the government. The defendant must prove:
- There was error;
- The error was plain;
- The error affected the defendant’s substantial rights; and
- The error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Even worse, the appellate court has discretion as to whether they reverse a conviction under a plain error analysis. Even if there is plain error that affects the defendant’s substantial rights and that “seriously affects the fairness, integrity, or public reputation of judicial proceedings,” the appellate court can decline to reverse the conviction…
A third possibility is for the court to analyze the errors as “structural error.”
Although structural error review is rare, it is appropriate for the Court to “presume prejudice for the complete denial of counsel at a critical stage, and for other errors that defy analysis by harmless-error standards because they affect the framework within which the trial proceeds.”
Structural errors are those that undermine the reliability of a trial, and “violate constitutional safeguards whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function.”
When a structural error occurs, prejudice is presumed, and the defendant does not have to prove that the outcome would have been different. (On direct appeal only – a defendant must still show prejudice in an ineffective assistance of counsel claim of structural error.)
Why should the courts reverse the conviction when the defendant’s own lawyer did not object or attempt to correct the error?
Same Judge, Same Constitutional Violations
For one thing, as the concurring opinion notes, the case that the Eleventh Circuit relies on to find that there was no structural error (United States v. Roy. 855 F.3d 1133 (11th Cir. 2017)), was an appeal from the same district court judge who allowed a trial to proceed in the absence of a defendant.
In Roy, the Eleventh Circuit found that such constitutional violations will usually be harmless. Which, apparently, the district court judge saw as a green light to continue committing constitutional violations. As the concurring opinion in Garcia points out, this particular judge may not change what he is doing unless the appellate court finds that it is structural error and reverses a conviction:
Recognizing a structural error and remanding Roy for constitutionally-compliant proceedings would have prevented this district court judge from continuing his indisputably unconstitutional practice of conducting criminal trials in the absence of defendants or their counsel. Such a decision would have incentivized the judge to forego his unconstitutional courtroom policies; conversely, however, our decision to employ the harmless error analysis effectively sanctioned these policies, as that analysis provides no mechanism for future defendants unlucky enough to sit in this particular judge’s courtroom to challenge the constitutional violations that will inevitably continue to occur.
Garcia’s convictions stand, and the district court continues to deny constitutional rights to defendants in trial.
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