The Sixth Amendment to the U.S. Constitution guarantees a criminal defendant the right to counsel at every critical stage of the proceedings against him or her, including the physical presence of counsel during trial.


This fundamental constitutional principle does not resonate well with Chief Judge K. Michael Moore of the U.S. District Court for the Southern District of Florida. Originally appointed to the federal bench in 1991 by former President George H. Bush, Judge Moore ascended to the chief judgeship in the Southern District of Florida in 2014.


In June 2012 Judge Moore was presiding over the trial of Alexander Roy—a middle school teacher charged with trying to entice what he believed was a 13-year-old girl into a sexual encounter. In addition to this particular charge, Roy was also being tried on four counts of possession of child pornography. He was convicted on all these charges and was sentenced by Judge Moore to life in prison.


Judge Reconvenes Criminal Trial Without Defense Counsel Present


On the third day of trial, Judge Moore recessed for lunch. He informed the parties that the trial would resume at 1:30 p.m. The judge was known for his promptness. As promised, the judge reconvened the trial at 1:29 p.m. Jay Kirschner, Roy’s attorney, was not present in the courtroom. Undeterred, Judge Moore permitted a government computer forensics expert to testify about the images of young girls he found on Roy’s computer. Kirschner showed up seven minutes into the expert’s testimony.


Judge’s Decision Troubling, Constitutional Error, But Harmless?


The Eleventh Circuit Court of Appeals decided to hear the appeal in Roy’s case en banc. The appeals court found Judge Moore decision to proceed in the trial without the defendant’s counsel being present a troubling matter. In a remarkable 281-page decision handed down on August 5, 2014, all eleven judges on the Eleventh Circuit found Judge Moore had committed a constitutional error but eight of the judges excused the error under the Chapman “harmless error” doctrine because the evidence of guilt against Roy was “overwhelming.”


Chief Judge Ed Carnes, who penned the majority’s 137-page decision, said Roy “received a fair trial although not a perfect one.”


Constitution Does Not Guarantee Perfect Trial


Judge Carnes was following the lead of the U. S. Supreme Court which, in 1983, held that “given the safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and the constitution does not guarantee such a trial.”


Incriminating Evidence Offered During Defense Counsel’s Absence

In a 58-page dissent, Judge Charles Wilson did not buy into the constitutional error excuse theory. He said Roy was entitled to a new trial because the incriminating evidence offered during defense counsel’s absence formed the basis of one of the charges against him.


“This type of one-sided proceeding is an affront to the integrity of our system and a violation of defendant’s rights to a fair trial and to counsel,” Wilson said.


The Eleventh Circuit may have believed in August 2014 that the court was done with Judge Moore’s errors of trying cases outside the presence of defense attorneys.  The court was mistaken.


Judge Allowed Case to Proceed Without Defendant or Counsel


Earlier that year (in January) Judge Moore presided over the trial of Lourdes Margarita Garcia, a 62-year-old Coral Gables, Florida physician charged with conspiracy to defraud and to file false tax returns with the IRS. She was convicted and Judge Moore sentenced her to three years of supervised released and ordered her to pay nearly $500,000.


In a 75-page October 19, 2018 decision, the Eleventh Circuit once again dealt with a situation where Judge Moore recessed Garcia’s trial for lunch. When the judge reconvened the trial, neither Garcia nor her defense counsel was present. Judge Moore allowed the government to continue its direct examination of a witness who had been testifying when the judge recessed for lunch. Defense counsel was absent for three minutes and Garcia was absent for as long as ten minutes. During their absence, the government witness testified about ten specific expenditures listed in one of the government’s exhibits.


The three-judge panel opened its decision with this paragraph:


“This is a troubling case. There can be no doubt – and the government does not contest the point – that constitutional error occurred. It is also clear that the error was plain and obvious. The decision to allow the government to introduce inculpatory evidence while both the defendant and her lawyer were absent for three to ten minutes in a trial that lasted more than 49 hours violated the defendant’s right to counsel, her right to confront the witnesses arrayed against her, and her right to be present at trial under both the Due Process Clause and Fed. R. Crim. P. 43. The only question is whether Garcia’s convictions should be reversed on account of the error.”


No Objection, No Plain Error


The Garcia case was reviewed differently by the Eleventh Circuit than the court had reviewed the Roy case, but reached the same result. The appeals court reviewed the Garcia case under the strict “plain error” doctrine, not the harmless error doctrine. The court explained why:


“We hold that Garcia’s convictions must be affirmed because the errors did not affect Garcia’s substantial rights. There can be no question that Garcia failed to preserve the errors at trial even though she had ample opportunity to do so. She was given every chance to object and to secure some remedial relief from the trial court but expressly declined to act. As a consequence, under well-established law we must review the constitutional violations that occurred for plain error, not for harmlessness beyond a reasonable doubt. What’s more, there is good reason in this case to be punctilious in selecting the proper standard of review. The prejudice analysis is by no means clear-cut and the standard by which we measure it could well make all the difference.”


When a defense attorney does not object to a constitutional error during a trial as was the case with Garcia’s attorney, the defendant can secure relief on appeal under the plain error doctrine if she can show “(1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.”


The appeals court essentially held that Garcia failed to establish the prejudice requirement inherent under the fourth prong of the plain error test.


Defendants Are Entitled to Constitutionally Fair Trials


We sharply disagree with the court’s conclusion that the fourth prong was not met. Although Judge Wilson in a 21-page concurring opinion said that the Garcia case should have been decided under the harmless error rule, not the plain error doctrine, he nonetheless believed she was entitled to a constitutionally correct trial, but he could not vote that way because he was bound by the Roy decision which he so fervently opposed. Wilson made this pertinent observation about Judge Moore’s handling of criminal trials like those in the Roy and Garcia cases:


“ … it is my belief that similar constitutional violations will continue to occur in this district court judge’s courtroom until this Court recognizes the violations as structural errors, and remands for new, constitutionally-compliant proceedings …”


Judge Moore is Seriously Affecting the Reputation of the Judiciary


It is that well-reasoned observation that compels us to disagree with the Eleventh Circuit’s analysis that Garcia did not satisfy the fourth prong of the plain error test. Judge Moore’s handling of criminal trials in these kinds of situations where the parties do not meet his standard of punctuality indeed “seriously affects the fairness, integrity, [and] public reputation of judicial proceedings.”


Judge Moore could sanction defense attorneys who are inexcusably late during trial proceedings without penalizing the defendant through constitutional violations. These are deliberate violations committed by the judge, not inadvertent or unintended violations that occur because of “the human fallibility of the participants” in a trial.


Judge Moore’s conduct is ill-tempered, mean-spirited, and has no place in the adversarial trial process. He undermines the fairness, integrity and reputation of the judicial system when he engages in the kind of petty behavior he displayed in the Roy and Garcia cases.


As Judge Wilson said, the Eleventh Circuit should put an end to it.