Was the judge's refusal to grant the lawyer a brief recess to speak with Norde, and Norde's subsequent removal form the courtroom a violation of his right to be present?

Question

Norde, on trial for burglary, told the trial judge before voir dire that his family was about to retain a lawyer and he requested a delay until the lawyer could be secured. The judge denied the request. During voir dire, as the attorneys accepted several jurors, Norde spoke up and objected. The judge told the jury that they heard the defendant "yell out," and told then to disregard his remarks. Norde again spoke up and requested his own counsel. The judges said, "You will either remain quiet or you will be removed." After more back and forth, Norde's lawyer requested a brief recess to speak with her client. This was denied by the judge. After being instructed that the trial would go on in his absence if he objected, Norde told the judge that he did not want to take part in the proceedings and was removed.

Answer 1

No

A criminal defendant has the right to be present at all stages of the trial, including jury selection. However, that right is not absolute and may be waived, either explicitly or by the defendant's conduct. Under Illinois v. Allen (1970) Norde's behavior was not so disruptive as to warrant removal. Allen involved a defendant who made multiple outbursts during voir dire and threatened the judge. Norde complained about not being given time to secure retained counsel. Where a defendant voices a seemingly substantial complaint about counsel, the court should inquire into the reasons for dissatisfaction, and it did not do so here. A judicial inquiry into Norde's request may have prevented his later interruptions. While Norde's behavior was significantly less egregious than that of the defendant in Allen, the court concluded that Norde's removal was within the trial judge's broad discretion, although it would have been preferable for the court to explain to Norde the potential ramifications of his removal. Even absent a warning, a defendant may be found to have forfeited certain trial-related constitutional rights based on certain types of misconduct. "The fact that Norde's conduct may have been based on what he believed to be a compelling reason -- his desire to retain his own counsel-does not excuse his misconduct. Allen makes clear that a defendant does not have the right to disrupt the trial proceedings. On two occasions, the jury selection process was interrupted by Norde's "objections." The trial judge characterized one of Norde's objections as a "yell." In addition, the court warned Norde that he would be removed if he did not remain quiet. We think that Norde's behavior was disruptive enough to be considered a waiver of his right to be present and to warrant removal. Accordingly, Norde was not unconstitutionally denied his right to be present."