Here, the State does not dispute the movant's absence during his jury trial was involuntary and at a “critical stage” of the proceedings and that the trial court erred in proceeding in the defendant's absence. According to the State, the only question is whether the error was harmless. On the other hand, the movant argues we should first consider whether the error should be considered structural error, which would preclude a harmless error analysis.
. . . .
Here, the factual situations presented is much closer to [State v. Calderon, 270 Kan. 241, 13 P.3d 871 (2000)], than the factual situation in Mann, Lopez, or Engelhardt. In fact, the movant's exclusion here may more directly implicate the movant's rights
under the Confrontation Clause than did the situation even in Calderon because the movant here was absent during the testimony of a State's witness. The challenged error here is at least as much a violation of the letter and spirit of the Confrontation Clause as being unable to understand closing arguments, if not more so.
We conclude, under the specific facts of this case, the challenged error was structural in nature and denied the movant a fair trial.[Update: the state filed a PR on March 9, 2009.]
[Further update: the KSC denied the PR and the mandate issued on September 8, 2009.]