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Smego v. Payne

United States Court of Appeals, Seventh Circuit

April 12, 2017

Richard M. Smego, Plaintiff-Appellant,
Anita Payne, Amber Jelinek, and Okey Nwachukwu-Udaku, Defendants-Appellees.

          Argued February 21, 2017

         Appeal from the United States District Court for the Central District of Illinois. No. 09-3177 - Harold A. Baker, Judge.

          Before WOOD, Chief Judge, and Flaum and ROVNER, Circuit Judges.


         Near the end of his jury trial on various § 1983 claims, Richard M. Smego was removed from the courtroom. Various law students who had been appointed to act as his counsel remained behind. The jury ultimately returned a verdict in favor of defendants, and one of the law students declined to poll the jury without consulting Smego.

         Smego now appeals, arguing that the district court committed reversible error in removing him from the courtroom, and that he is entitled to a new trial under our holding in Verser v. Barfield, 741 F.3d 734 (7th Cir. 2013), because he was deprived of his right to poll the jury. For the reasons that follow, we affirm.

         I. Background

         A. Factual Background

         Smego is a civilly committed sex offender at a treatment and detention facility in Rushville, Illinois. In 2009, he filed suit against members of his treatment team: Anita Payne, Amber Jelinek, and Dr. Okey Nwachukwu-Udaku. Smego's lawsuit alleged that in early 2009, another Rushville resident sexually assaulted him, and that afterward, defendants forced Smego to continue group therapy sessions with his alleged assailant and retaliated against Smego for filing suit. We held that Smego was entitled to a jury trial on those claims. See Smego v. Payne, 469 F.App'x 470 (7th Cir. 2012) (hereinafter, Smego Z).

         Following our ruling in Smego I, at a hearing that Smego attended by video conference, the district court offered on its own motion to appoint students from a University of Illinois College of Law clinic to act as Smego's counsel. At a hearing in May 2012, at which Clinical Law Professor Andrew Bequerte and a law student appeared on behalf of the clinic, Smego agreed to the representation. Professor Bequerte never filed a formal appearance in the case, however, and the May 2012 hearing was the last time that Bequerte made an in-per-son appearance at any hearing. Neither his name nor signature appeared on any filings in the proceedings below. The only people who entered appearances to represent Smego, or whose names and signatures appeared on filings, were University of Illinois law students.

         Before trial began, Smego appeared by video conference or telephone at several hearings. For the three-day trial itself, however, Smego appeared in person pursuant to a writ of habeas corpus ad testificandum. On April 17, 2013, the final day of trial, during an off-the-record break in the proceedings sometime after closing arguments, the district judge removed Smego from the courtroom to be transported back to Rush-ville. The court did not address this removal on the record and issued no cautionary instruction to the jury regarding Smego's absence from the courtroom. The district court did, however, instruct the jury that, "Your agreement upon a verdict must be unanimous. Your verdict must be in writing and signed by each of you, including the presiding juror."

         The jury was released for deliberations at 2:06 PM, and at 3:30 PM, the jury notified the court that it had reached a verdict. At 3:43 PM, the jury returned and handed the verdict to the judge. The district court read, "We, the jury, find in favor of each of the defendants and against the plaintiff on both of his claims. All signed by all ten jurors." Smego was not in the courtroom when the jury found in favor of defendants.

         After the verdict was read, the district judge asked one of the law students representing Smego whether they wanted the jury polled, and the student, without consulting Smego, responded in the negative. The judge then asked the law students if they wished to end their representation of Smego. They answered affirmatively, and the district court immediately granted the motion.

         B. Procedural Background

         Smego filed a notice of appeal the following month. In December 2013, after we released our decision in Verser, Smego moved pro se to correct the record under Federal Rule of Appellate Procedure 10, [1]to "include and reflect the fact that Plaintiff was not present for the end of trial including the reading of the verdict by the jury, the decision not to poll the jury, or for any part of the trial or proceedings after the Court signed the Order transporting [Smego] back to the Rushville Treatment and Detention Facility." He asserted in his motion that "before the conclusion of trial and before the Jury returned from Lunch to receive the case and begin deliberating/' the district court had ordered him back to detention.

         On July 18, 2014, the district judge entered a text order granting Smego's motion "to the extent he seeks confirmation that, after the closing arguments and the jury was sent to deliberate, the court directed that he be transported back to the Rushville Treatment and Detention Center." The order further stated:

This was the court's standard practice before Verser v. Barfield,741 F.3d 734 (7th Cir. 2013). However, unlike the plaintiff in Verser, Mr. Smego was represented during the trial by counsel, including when the jury verdict was read. The ...

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