Issue before the Court: Whether the exclusion of Mr. Wilkins from a sidebar conference with a prospective juror about the juror’s bias required reversal pursuant to Antommarchi or whether his exclusion would be excused because Mr. Wilkins subsequently waived his right to be present for different conversations with other jurors.

Held: Ruling 4-3 that no reversal was required “under these unique circumstances” because Mr. Wilkins had not protested his exclusion.

Discussion: In Antommarchi, the Court ruled that a defendant’s right to be present extended to sidebar conferences with prospective jurors related to their bias or hostility and that no preservation was necessary to raise such a claim on appeal.  Antommarchi was violated in this case because the court conducted a number of conferences with four prospective jurors (one of whom was struck by the defense through codefendant’s counsel) without Mr. Wilkins being present and prior to obtaining a waiver of his right to be present.  While that error could have been cured by confirming that Mr. Wilkins’ subsequent waiver should be applied retroactively or by recreating the sidebar conference, neither occurred here.

The majority held that because Mr. Wilkins “made no protest as to his absence from the pre-waiver sidebar conference with [the prospective juror], despite being informed of the right and invited to object,” his claim was waived.  Thus, a defendant’s subsequent “acquiescence at a time when correction was possible” gave rise to an obligation to protest what normally would not have to be objected to.

CAL observes: The nicest comment that could be made about this decision is that its effect purports to be a limited one-time-only pass (“based on the unique circumstances of the waiver given in this particular case”).  Whenever a high court carves out a one-time-only exception, one questions both why the case was taken for review and whether the legal reasoning is sound.  As Justice Antonin Scalia purportedly said in commenting upon the majority he joined in Bush v. Gore, it was “as we say in Brooklyn, a piece of shit.”

Let’s hope that this decision does not portend a retrenchment from Antommarchi and a return to preservation madness, but rather reflects the majority’s distaste for the facts of this murder case.  Already Antommarchi had been chiseled away by permitting reconstruction of the proceeding where the defendant had been deprived of his right to be present, by allowing retroactive waivers to excuse the violation, and by finding some violations to be harmless or de minimis.  But, here, the majority (though not expressly doing so) has gone further and appears to have endorsed an implied retroactive waiver under the guise of a preservation requirement.  Silent acquiescence to an unexplained violation of a right, where preservation is not otherwise required, should not be a basis for affirmance.