recognizing possibility that some “factual or legal considerations ... might place the case beyond the rationale or holding of Robinson”
How later courts described this case
- recognizing possibility that some “factual or legal considerations ... might place the case beyond the rationale or holding of Robinson”
- noting strength of government’s case was not overwhelming when applying harmless beyond reasonable doubt standard where the trial court erred in refusing to allow defendant to be present during individual voir dire
- "[D.C. Superior Court Criminal Rule 43(a)] requires a defendant to be permitted to participate at that portion of the voir dire conducted at the bench"
- Belson, J., concurring, with whom Newman, then Chief Judge, Mack, Ferren, Pryor and Rogers, Associate Judges, joined
Written by the judges who cited it.
The opinion
NEBEKER, Associate Judge,
with whom KERN and YEAGLEY, Associate Judges, Retired, join, dissenting:
The trial court and the bar may have some difficulty in knowing whether we have adopted a new interpretation of Rule 43 or a constitutional holding that no rule can change. (It must be remembered that the Federal Rules of Criminal Procedure apply in the Superior Court and can only be modified with the approval of this court. See D.C.Code § 11-946 (1981). If we have constitutionalized our holding, have we precluded a federal rule amendment expressly rejecting our result in this case? It is to be hoped we have not.)
We have here a rare phenomenon — an “opinion for the court” referred to as “the majority opinion” by the author of the longer concurring opinion in which the majority (on the opinion for the court) concurs in part — the constitutional part expressly not relied upon in the opinion for the court. Like the unfortunate Frederic who was only five and a little bit over because he was born on February 29, we have here, in Sir William Gilbert’s words in Pirates of Penzance, Act II, “A paradox? A para dox — A most ingenious paradox_ At common sense she gayly mocks.”
To resolve the conundrum, however, one need only resort to the familiar principle *1145 counseling avoidance of constitutional issues. Massachusetts v. Westcott, 431 U.S. 322 , 97 S.Ct. 1755 , 52 L.Ed.2d 349 (1977); Hagans v. Lavine, 415 U.S. 528, 543 , 94 S.Ct. 1372, 1382 , 39 L.Ed.2d 577 (1974). Since it is unnecessary to constitutionalize this holding and a non-constitutional avenue has been chosen in the opinion for the court (peremptory challenge), the constitutional discussion may and should be considered dicta. 1
. A particularly imaginative method of coping with this breath-to-breath ritual between some jurors and defendants has been devised and found tolerable by one trial judge. It seems that all jury trial courtrooms have been configured such that a clerk’s station (desk and seat enclosure) are adjacent to the judge’s bench on the side opposite the witness chair. This space is set off with a barrier wall of about thirty inches in height and the desk. It is adequate to accommodate in a standing position as many as three or four defendants with adequate security guards at hand. The defendants can see and hear at this station what goes on at the bench conferences and yet a respectable separation is maintained. Perhaps this method can best solve the major problems created by the court’s new interpretation of Super.Ct.Crim.R. 43.