In a rare case the Ninth Circuit reversed a conviction for the judge’s refusal to grant a two day mid-trial continuance. By a two to one vote the court reversed the conviction of Garth Kloehn for tax evasion when the trial judge refused the defense’s request for a two day continuance so that the defendant could spend the time with his dying son.

Kloehn was the sole defense witness. On the fifth day of his testimony he learned that his son who was at home in Las Vegas, suffering from end stage melanoma had a massive seizure and in the doctor’s words “ha[d] very little life expectancy.” His lawyer moved for a continuance. He argued that Kloehn was unable to concentrate on his testimony. The prosecutor argued that

if he wanted to be with his son, he could just “finish his testimony, and . . . go back to Las The government’s attorney suggested that if he wanted
to be with his son, he could just “finish his testimony, and . . . go back to Las Vegas.” She argued that “[a] break would operate . . . to the significant detriment of the jury’s ability to even remember what happened during the course of the trial.” She argued that “[a] break would operate . . . to the significant detriment of the jury’s ability to even remember what happened during the course of the trial

The motion was denied. The next day Kloehn finished his testimony and the prosecutor put on a IRS agent for rebuttal. When it became clear that the rebuttal would not be completed that day, Kloehn’s attorney asked for permission for his client to catch an afternoon flight from Los Angeles to Las Vegas. The judge ended testimony for the day and permitted Kloehn to miss the remainder of the trial.

An hour after Kloehn arrived at the hospital his son died.

The next day the issue came up as to what to tell the jury about Kloehn’s absence. His attorney suggested that they be told that he had a death in the family. The judge suggested telling the jury that their was a family emergency, The prosecutor want the jury to be told that Kloehn chose not to be in the courtroom. The judge gave the following instruction:

Ladies and gentlemen, you may notice that Mr. Kloehn is not here. He is unable to be with us today. He has a right to be present. He has a right ot to be present. He is not required to be here, so you shouldn’t infer anything from the fact that he is not able to be here today.

The appellate court ruled that:

1.The defense had been diligent in its preparations, made the motion in a timely manner and the purpose of the motion was not purely for delay.

2. If the motion would have been granted the defense would have accomplished its goal in that Kloehn would have been able to spend the last hours of his life with his son.

3. The prosecution and the court would not have been inconvenienced by the delay. It questioned the good faith of the prosecutor for arguing that the jury might forget the facts of the case during a two day delay since the court had taken four days off at Thanksgiving and three day weekends.

4. Finally it found that Kloehn was prejudiced by the denial of the motion since he had not been able to focus and since the judge’s instruction allowed the jury to believe that Kloehn did not believe the trial was important and that he was going to be found guilty.

Judge Trott dissented arguing that any error was harmless. There was no hard evidence that Kloehn was hurt by any error. But since the government did not argue that the error was harmless in the trial court Judge Reinhardt writing for the majority found the issue waived.

The conviction is reversed and a new trial is ordered.