Richard M. Smego, Plaintiff-Appellant,
Anita Payne, Amber Jelinek, and Okey Nwachukwu-Udaku, Defendants-Appellees.
February 21, 2017
from the United States District Court for the Central
District of Illinois. No. 09-3177 - Harold A. Baker,
WOOD, Chief Judge, and Flaum and ROVNER, Circuit Judges.
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.
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.
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).
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.
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."
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.
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.
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, 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
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
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 ...