Friday, September 28, 2007

Absence Makes the Court Affirmer

United States v. Kaid, Docket No. 05-4480-cr (2d Cir. September 12, 2007) (Calabresi, Raggi, Hall, CJJ) (per curiam)

Two years after his client was convicted, defense counsel filed an affirmation stating that he was absent for twenty minutes during the testimonial portion of the trial. At issue was whether this constituted ineffectiveness. The district court had decided, rather than try to reconstruct the events years later at a hearing, that it would assume the facts to be true. It held that the absence did not constitute a Sixth Amendment violation. The Circuit, expressing some skepticism about whether the absence had been adequately established at all, nevertheless agreed. The court rejected the invitation to treat the absence as per se ineffectiveness, a doctrine that is reserved for extreme situations, such as where the attorney is not an attorney at all or has been implicated in the defendant’s crimes.

Instead, the court undertook a traditional Strickland analysis, concluding that counsel’s absence, while objectively unreasonable, did not prejudice the defendant.


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