Background
Lamar Rogers was arrested in September 2023 and ordered held without bond pending trial on multiple firearm and ammunition charges in D.C. Superior Court. Despite being found competent twice, Rogers refused for over fifteen months to leave his cell or disembark from DOC transport vans to appear in the courtroom — attending none of the more than a dozen pre-trial hearings. Superior Court Rule of Criminal Procedure 43(f) requires that a felony defendant be “initially present at trial” before waiving the right to be present, creating a procedural deadlock: Rogers would not come to court, yet could not waive his right to be absent without first being in court.
To break the impasse, Judge Judith Pipe devised a plan: transport Rogers to the courthouse, go to him personally, inform him of his rights on the record, and proceed to trial with or without him. On December 9, 2024 — the scheduled trial date — Rogers again refused to leave the DOC van parked in the courthouse sally port. Judge Pipe, accompanied by defense and prosecution counsel, went to the sally port and conducted a detailed colloquy with Rogers via iPad over a live Webex feed broadcast into the courtroom. Rogers unequivocally confirmed he understood his right to be present, that it was his voluntary choice to waive it, and that no one had forced, pressured, or promised him anything. The judge then formally arraigned him in the sally port, returned to the courtroom, and proceeded to jury selection and trial.
The jury convicted Rogers of unlawful possession of a firearm (prior conviction), possession of an unregistered firearm, and unlawful possession of ammunition. He was sentenced to eighteen months — a sentence he had largely already served — and was released about two weeks after sentencing. He appealed, challenging both the validity of his in-absentia trial and the constitutionality of his felon-in-possession conviction under the Second Amendment.
The Court’s Holding
The D.C. Court of Appeals affirmed on both grounds. On the waiver issue, the court first rejected Rogers’s claim that the colloquy was constitutionally deficient under Johnson v. Zerbst, 304 U.S. 458 (1938): the video record demonstrated a knowing, intelligent, and voluntary waiver, and there were no unresolved competency questions at the time of the exchange. The court also rejected the argument that the waiver was invalid under Rule 43 because it did not occur inside the courtroom. Although Rogers was not in the courtroom, he was physically on courthouse property in the sally port, face-to-face with the judge and both counsel, and the proceedings were simultaneously broadcast live into the courtroom for public access. The court held that, under these particular circumstances, all the functional components of physical presence — appearance at the courthouse, face-to-face interaction with the judge and counsel, and public accessibility — were satisfied in “deconstructed form,” making the waiver valid under Rule 43. The court also found no abuse of discretion in proceeding to trial, emphasizing that Rogers had been held for fifteen months, had already served beyond the mandatory minimum, and the use of reasonable force simply to elicit a waiver would have been disproportionate.
On the Second Amendment challenge to the felon-in-possession conviction, the court applied plain-error review because the issue was not raised at trial. Rogers relied on New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), but the court held that, given the absence of controlling precedent clearly holding felon-in-possession laws unconstitutional — and the Supreme Court’s repeated suggestions in Heller and Rahimi that such prohibitions are presumptively lawful — any error was not “plain” or “obvious.” The court expressly took no position on whether the D.C. felon-in-possession statute would survive a properly preserved Bruen challenge, holding only that the plain-error standard foreclosed relief here. The court also noted that it is referring the Rule 43 procedural question to the Rules Committee of the Superior Court for further guidance.
Key Takeaways
- A defendant’s waiver of the Rule 43 right to be present at a felony trial can be valid even when elicited outside the courtroom, provided the defendant is physically on courthouse property, face-to-face with the judge and counsel, and the proceedings are simultaneously accessible to the public — the court deemed these the functional components of “initial presence.”
- A trial judge does not abuse her discretion in proceeding to trial in absentia where the defendant has been in pretrial detention for fifteen months (far exceeding the mandatory minimum), has twice been found competent, and the alternative of using reasonable force merely to elicit a waiver would be disproportionate.
- A Second Amendment challenge to a felon-in-possession conviction, unpreserved at trial, cannot succeed on plain-error review where neither the Supreme Court nor the D.C. Court of Appeals has definitively resolved the constitutional question — and the Supreme Court has repeatedly described such prohibitions as presumptively lawful.
- The court referred the Rule 43 procedural gap — how the rule should operate when a defendant refuses to come to court at all, rather than absconding mid-trial — to the Superior Court Rules Committee for clarification.
Why It Matters
Rogers presents a novel and practical problem that trial courts rarely face: a competent, non-absconding defendant who simply refuses to leave his cell for months on end, exploiting the procedural requirement that he be “initially present” before he can waive the right to be present. The D.C. Court of Appeals’ functional approach — crediting a livestreamed sally-port colloquy as satisfying Rule 43’s physical-presence requirement — gives trial judges a workable path forward without resorting to physical force, and without indefinitely delaying a defendant’s trial (and prolonging pretrial detention). The opinion is notable for its candid acknowledgment that the rule’s text does not cleanly address this scenario, prompting a referral to the Rules Committee.
On the Second Amendment front, the decision is a measured placeholder. The court declines to rule on whether D.C.’s felon-in-possession statute survives Bruen scrutiny, insulating its holding behind the plain-error standard while signaling that the question remains genuinely open — and that the Third Circuit’s contrary ruling in Range v. Attorney General carries no weight in D.C. Attorneys litigating felon-in-possession cases in the District should preserve the Bruen argument at the trial level to avoid the plain-error hurdle this court found dispositive.