Cite as: 567 U. S. ____ (2012)
`
` SOTOMAYOR, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
` WILLIAM SMOAK FAIREY, JR., AKA DOAK FAIREY v.
`
`
`
`KENNETH S. TUCKER, SECRETARY, FLORIDA
`
`DEPARTMENT OF CORRECTIONS, ET AL.
`
`
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
`
`
`No. 11–7185. Decided June 18, 2012
`
`The petition for a writ of certiorari is denied.
` JUSTICE SOTOMAYOR, dissenting from denial of certiorari.
`
`Petitioner William Fairey was tried in absentia and
`
`without counsel on state felony charges. Although Fairey
`had not received actual notice of his trial date, the state
`court concluded that he had waived his right to be present
`when he failed to appear in court on the scheduled trial
`date. The State tried Fairey in his absence and, without
`having heard any defense, the jury found Fairey guilty.
`
`The court sentenced him to eight years’ imprisonment and
`$25,000 in restitution. Fairey sought relief on the ground
`that his trial in absentia violated the Sixth and Four-
`
`teenth Amendments. After exhausting state remedies, he
`
`filed a federal petition for writ of habeas corpus. The
`District Court denied relief. Both the District Court and
`the United States Court of Appeals for the Fourth Circuit
`denied a certificate of appealability (COA).
`I believe a COA should have issued; at the very least,
`
`“the issues presented are adequate to deserve encourage-
`ment to proceed further.” Miller-El v. Cockrell, 537 U. S.
`322, 327 (2003). An accused’s right to be present at his
`own trial is among the most fundamental rights our Con-
`stitution secures. In view of the importance of the right
`involved and the obvious error here, I would grant the
`petition for a writ of certiorari and summarily reverse the
`judgment below.
`
`1
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`

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`2
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` FAIREY v. TUCKER
`
` SOTOMAYOR, J., dissenting
`
`I
`
`
`In early 1998, South Carolina served Fairey with an
`arrest warrant for obtaining goods and moneys under
`false pretenses, a state felony. Fairey was released on his
`personal recognizance and the State dismissed the war-
`rant. Some time later, Fairey moved from South Carolina
`to Sarasota, Florida. In 2001, South Carolina indicted
`Fairey for the charge underlying the warrant. Fairey
`proceeded pro se and defended himself actively. He filed
`motions, sought the discovery of documents, and corre-
`
`sponded with the court. Twice he traveled from Florida to
`South Carolina for proceedings.
`
`In the fall of 2002, Fairey informed the state solicitor
`(hereinafter Solicitor) and the trial court of his new ad-
`dress in Castiac, California. Several months later, Fairey
`moved to quash his indictment. In that submission, he
`listed both the California and Florida addresses, the lat-
`ter now denoted as a “temporary address.” Record in No.
`4:09–cv–01610–RMG (D SC), Doc. 19, p. 160 (Exh. 10).
`
`Fairey explained: “Beginning February 23, I have been
`living temporarily in Sarasota, Florida, awaiting my next
`[work] assignment and my return to California.” Id., at
`171. He attended the hearing on his motion in March, and
`there submitted a motion to dismiss and an accompanying
`affidavit. Both listed only his Florida address. The trial
`
`court denied Fairey’s motion to quash and sent notice of
`
`its ruling to the Florida address alone. The Solicitor
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`subsequently sent at least one letter to that address.
`
`Some 15 months later, the trial court denied Fairey’s
`motion to dismiss. Notice again was sent only to Florida.
`
`In June 2004, the Solicitor subpoenaed Fairey to appear
`for trial in South Carolina the following month. Although
`Fairey’s most recent filing had listed only his Florida
`address, and both the trial court and Solicitor most re-
`cently had sent correspondence to that address alone, the
`Solicitor mailed the subpoena to two different addresses:
`
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`

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`3
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` Cite as: 567 U. S. ____ (2012)
`
` SOTOMAYOR, J., dissenting
`
`
`
` the California address, and a South Carolina address
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`listed on Fairey’s 1998 personal recognizance bond form.
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`It is undisputed that Fairey did not receive the subpoena.
`
` Unaware of his trial date, he did not appear at trial. The
`State tried him in his absence, and the jury found him
`guilty after less than 30 minutes of deliberation.
`
`When it came time to arrest Fairey, the State had no
`
`trouble locating him in Florida. After he was incarcerated,
`Fairey moved for a new trial. The trial court denied the
`motion and the South Carolina Court of Appeals affirmed.
`
`
`The court acknowledged that the Sixth Amendment guar-
`antees the right of an accused to be present at every stage
`of his trial. 374 S. C. 92, 98–99, 646 S. E. 2d 445, 448
`(2007). But the court concluded that Fairey had waived
`this right because (1) notice of his trial date was sent to
`
`his California address, which was the “permanent address
`
`for service of notice” in the record; and (2) Fairey had been
`warned on his 1998 personal recognizance bond form that
`trial would proceed in his absence if he did not attend. Id.,
`at 99–103, 646 S. E. 2d, at 448–450. After exhausting his
`state remedies, Fairey petitioned the United States Dis-
`trict Court for the District of South Carolina for a writ of
`habeas corpus. The District Court denied relief, largely
`adopting the reasoning of the State Court of Appeals. The
`District Court and United States Court of Appeals for the
`Fourth Circuit denied a COA. See 441 Fed. Appx. 160
`(2011). Fairey, proceeding pro se, petitioned for a writ of
`
`certiorari.
`
`
`
`
`
`
`II
`
`It is a basic premise of our justice system that “in a
`prosecution for a felony the defendant has the privilege
`under the Fourteenth Amendment to be present in his
`own person whenever his presence has a relation, reason-
`ably substantial, to the fullness of his opportunity to
`defend against the charge.” Snyder v. Massachusetts, 291
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`
`
`

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`4
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` FAIREY v. TUCKER
`
` SOTOMAYOR, J., dissenting
`
`
`U. S. 97, 105–106 (1934). This longstanding right reflects
`
`the “notion that a fair trial [can] take place only if the
`jurors me[e]t the defendant face-to-face and only if those
`testifying against the defendant [do] so in his presence.”
`
`Crosby v. United States, 506 U. S. 255, 259 (1993); see also
`ibid. (“‘It is well settled that . . . at common law the per-
`
`sonal presence of the defendant is essential to a valid trial
`and conviction on a charge of felony.’” (quoting W. Mikell,
`Clark’s Criminal Procedure 492 (2d ed. 1918) (hereinafter
`Mikell))); Diaz v. United States, 223 U. S. 442, 455 (1912)
`(right to be present is “scarcely less important to the ac-
`cused than the right of trial itself ”). Thus in general, “if
`[the defendant] is absent [from trial], . . . a conviction will
`be set aside.” Crosby, 506 U. S., at 259 (quoting Mikell
`492).
`
`The Court has acknowledged only two exceptions to this
`general rule. First, at least in noncapital trials, a defend-
`ant may waive his right to be present “‘if, after the trial
`has begun in his presence, he voluntarily absents him-
`
`self.’” Crosby, 506 U. S., at 260 (quoting Diaz, 223 U. S.,
`
`at 455). Second, “a defendant can lose his right to be
`present at trial if, after being warned that he will be re-
`moved if he continues his disruptive behavior, he never-
`theless insists on conducting himself in a manner so
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`disorderly, disruptive, and disrespectful of the court that
`his trial cannot be carried on with him in the courtroom.”
`Illinois v. Allen, 397 U. S. 337, 343 (1970). This case, of
`course, does not fall within either exception. Rather, the
`state court conceived an additional exception, one never
`recognized by this Court: waiver on the basis of a defend-
`
`ant’s actions prior to the start of trial. And the state court
`went on to conclude that Fairey’s actions established such
`waiver on the basis of two facts: the Solicitor mailed
`a subpoena to Fairey’s California address and Fairey
`acknowledged in his 1998 personal recognizance bond
`
`form that trial could proceed in his absence if he failed to
`
`
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`
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`

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`
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` Cite as: 567 U. S. ____ (2012)
`
` SOTOMAYOR, J., dissenting
`
`
`
`
`5
`
`
`
`
`
`attend.
`
`Whether the Constitution permits the trial in absentia
`of a defendant who is not present at the start of trial is a
`serious question. It is one we expressly left open in Crosby,
`though not without noting that there are good reasons
`for distinguishing in this context between a defendant who
`was present at the start of trial and one who was not
`present at all. We observed that “the defendant’s initial
`presence serves to assure that any waiver [of the right to
`be present] is indeed knowing.” 506 U. S., at 261–262.
`And we noted that “the costs of suspending a proceeding
`already under way will be greater than the cost of post-
`
`poning a trial not yet begun,” and so “[i]f a clear line is to
`be drawn marking the point at which the costs of delay are
`likely to outweigh the interests of the defendant and
`society in having the defendant present, the commence-
`ment of trial is at least a plausible place at which to draw
`
`that line.” Id., at 261.
`
`Even assuming that a waiver of the right to be present
`at trial could ever be found when the defendant was not
`initially present, the facts here do not remotely demon-
`strate such a waiver. Our cases clearly establish that
`“waiver is the intentional relinquishment or abandonment
`of a known right.” United States v. Olano, 507 U. S. 725,
`733 (1993) (internal quotation marks omitted). A defend-
`ant’s waiver of a fundamental constitutional right is not to
`be lightly presumed; rather, a court must “indulge every
`reasonable presumption against waiver of fundamental
`constitutional rights.” Carnley v. Cochran, 369 U. S. 506,
`514 (1962) (internal quotation marks omitted). It was not
`reasonable for the state court to conclude that Fairey
`intentionally abandoned his right to be present.
` As a pro se litigant, Fairey represented himself actively
`in pretrial proceedings; he made two interstate trips to do
`so and demonstrated every intention of mounting a vigor-
`ous defense at trial. To be sure, he did not appear in court
`
`
`
`
`
`

`
`
` FAIREY v. TUCKER
`
` SOTOMAYOR, J., dissenting
`
`
`on his scheduled trial date. And he was informed on his
`bail recognizance form that trial could proceed in his ab-
`sence if he was not present. But the form did not specify
`his trial date, and Fairey had no knowledge of that date
`as he did not receive the Solicitor’s notice, which was sent
`to California and not to Fairey’s most recent address in
`Florida. There is no suggestion, moreover, that Fairey
`was derelict in his duty to monitor the docket or to keep
`the State informed of his whereabouts. His most recent
`motion to the court provided only his Florida address. An
`affidavit submitted two weeks earlier stated that he was
`presently living in Florida. And Fairey had been contacted
`at his Florida address by both the Solicitor and court
`after that date. Until he informed the court that he had
`returned to California or moved elsewhere, he was justi-
`fied in believing the State would continue to contact him
`at his Florida address. In short, while Fairey failed to
`appear in court on the date of his scheduled trial, his
`failure to do so was wholly inadvertent. Consequently, his
`absence does not demonstrate the intent necessary to
`
`establish waiver under our established case law.
`
`I believe a COA should have issued and that our inter-
`vention is warranted. A trial conducted without actual
`notice to a defendant and in his absence makes a mockery
`of fair process and the constitutional right to be present at
`trial. That is particularly true where, as here, the defend-
`ant participated actively in his defense and kept the State
`informed of his whereabouts. I would grant the petition
`and summarily reverse the judgment below.
`
`
`
`
`
`
`
`6