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Tim Bilecki

Trial in Absentia – Removed for Disruption

The civilian defendant in United States v. Ward, 598 F.3d. 1054 (8th Cir. 2010) was charged with production and possession of child pornography under 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B). Finding the defendant was denied his constitutional right to be present at trial and was not advised by the court of his right to return, the Eighth Circuit reversed and remanded for a new trial.

The opinion laid out the facts leading up the defendant’s removal, which suggest he was disruptive and somewhat erratic. Before the federal trial began, Arkansas authorities charged the defendant with rape; he was convicted and sentenced to life in prison before the child pornography case was tried. At the federal trial, the defendant agreed to plead guilty, but filed several written objections that caused the judge reject the plea. The judge ordered a mental examination of the defendant, which concluded he was mentally responsible and could assist in his own defense; however, the report noted “behavioral issues are considered likely, given various statements by the defendant of ‘fireworks’ in the court.”

At his next court appearance, the defendant complained he was not allowed to bring legal papers from the jail and defense counsel said the defendant was “going off on tangents.” The judge directed the prosecutor to provide the defendant’s legal papers to defense counsel. Before voir dire began, defendant “repeatedly” interrupted defense counsel and the court. The judge directed the defendant “to write out what you want to tell your lawyer . . . because if you’ve been in his ear, he can’t listen to me.” The defendant responded that he needed to speak to his counsel to ensure objections were made in a timely manner. The judge then told the defendant, “If you interrupt me again or if you talk again without going through your lawyer, I’m going to send you to a cell and you can hear the trial from there.” According to the opinion, a few moments later, the judge admonished the defendant for speaking to his counsel too loudly and then had the defendant removed.

After the removal, defense counsel suggested the judge give the defendant “a few minutes to cool down.” The court overruled the request and proceeded to jury selection with the defendant absent. After jury selection, the judge directed defense counsel to tell the defendant that he could return if he would “pledge” to not speak out loud and to communicate in writing with counsel. Before the trial began in the afternoon, defense counsel told the judge the defendant could not comply with the court’s requirements.

On the second day of trial, defense counsel renewed his objection to the defendant’s absence from proceedings, while also saying, “I don’t see there’s any way he could guarantee that he’d be quiet.” On the third day of trial (which consisted of instructions, closing arguments, and deliberations), there was no discussion in the record of the defendant returning to the courtroom. During the deliberations, the jury asked the court why the defendant was not “in the courtroom.”

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