Does Absence of a Judge During a Critical Stage of a Trial Constitute a Structural Error ?

In United States v. Mortimer, 161 F.3d 240 (3rd Cir. 1998), the Third Circuit held that the unexplained absence of the trial judge during the defendant's closing argument constituted structural error because the judge was absent during a critical stage of the trial. The Court explained: A trial consists of a contest between litigants before a judge. When the judge is absent at a "critical stage" the forum is destroyed. There is no trial. The structure has been removed. There is no way of repairing it. The framework "within which the trial proceeds" has been eliminated. The verdict is a nullity. Mortimer, 161 F.3d at 241. The Court recognized that the parties may consent to excuse the presence of the judge, but held that by continuing her summation defense counsel did not consent to the court's absence. Mortimer, 161 F.3d at 241. The Court rejected the government's claim that the defendant must show prejudice to obtain relief, stating: "prejudice to the defendant from the jury inferring that the defense was not worth listening to may have occurred; it is not necessary on this appeal for the defendant to demonstrate it. The structural defect determines the result." Mortimer, 161 F.3d at 242.