The Supreme Court has long held that, "One of the most basic of the rights guaranteed by the Confrontation Clause [of the Sixth Amendment] is the accused's right to be present in the courtroom at every stage of his trial.'" (Illinois v. Allen, 397 U.S. 337, 338
(1970)). The court noted this right extends throughout the trial: "The right to be present, which has a recognized due process component, is an essential part of the defendant's right to confront his accusers, to assist in selecting the jury and conducting the defense, and to appear before the jurors who will decide his guilt or innocence."
Similar to military practice, a civilian defendant may be tried in absentia if voluntarily absent after trial has begun or if properly removed for being disruptive.18 In this case, the defendant was not threatening anyone and was not violent. The court noted a judge "clearly has discretion to take firm action" when courtroom safety is at issue. However, when a defendant is moved for disruption alone, the judge is afforded less discretion. In this case, the judge erred by (1) issuing an "absolute ban" on the defendant talking to counsel, a possible violation of the right to counsel; and (2) not personally advising the defendant about his right to return if he could "conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings" (Illinois v. Allen, 397 U.S. 337, 343 (1970)).
For a trial in absentia, the government must prove that a violation of this constitutional right was harmless beyond a reasonable doubt" (United States v. Shepherd, 287 F.3d 965, 968 (8th Cir. 2002)).
The right to testify is a fundamental constitutional right (Rock v. Arkansas, 483 U.S. 44, 49, 51-52 (1987)) that only the defendant may waive. The removed defendant must be advised of his right to return to the proceedings, provided he reasonably controls his behavior. The Supreme Court has held in Illinois v. Allen, 397 U.S. 337, 343 (1970)):
"Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings." (quoting Illinois v. Allen, 397 U.S. 337, 343 (1970)).
The Discussion to R.C.M. 804 provides excellent guidance for advising an accused of his right to return as well as recommended accommodations for the accused who has been properly removed.
The defense counsel had an obligation to ensure the defendant's presence at trial so he could exercise his constitutional rights: The defendant's right to be present at trial is a more powerful, constitutionally mandated concern. A defendant's constitutional right to be present at his trial includes the right to be an irritating fool in front of a jury of his peers.