Smego v. Payne, 854 F.3d 387

Richard Smego, a civilly committed resident, sued his treatment-team members under 42 U.S.C. § 1983; the case proceeded to a three-day jury trial in April 2013.
Smego attended parts of the pretrial hearings remotely; University of Illinois law students (with a supervising clinic professor who did not formally appear) served as his trial counsel.
During an off-the-record break after closing arguments, the district court ordered Smego returned to his detention facility; the timing was not placed on the record and the court issued no instruction to the jury about his absence.
The jury deliberated and returned a unanimous verdict for defendants; a law student representing Smego declined, without consulting Smego, to poll the jurors after the verdict was read.
On appeal Smego argued the court abused its discretion by removing him (invoking Stone factors and the Court Reporter’s Act) and that he was entitled to a new trial under Verser v. Barfield because he was deprived of the right to poll the jury.
The district court, reconstructing the record under Fed. R. App. P. 10, concluded Smego was removed only after the jury was sent to deliberate; the Seventh Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Removal from courtroom	Smego: Removal was off the record, court failed to weigh Stone factors, so removal was abusive and reversible	Defendants: Smego was present for evidence, removal was routine after jury sent to deliberate, no prejudice	Court: Accepting district court’s reconstructed finding that removal occurred after deliberations, no prejudicial abuse of discretion; removal claim fails
Right to poll the jury / waiver	Smego: Removal left him incommunicado and unable to direct counsel to poll; like Verser, warrants new trial	Defendants: Smego had counsel present who can waive/police the right; counsel’s acts bind client; harm is not automatic	Court: Counsel may waive polling for represented litigant; Verser limited to pro se where exclusion also excludes counsel; here no prejudice shown, so denial of new trial
Incomplete transcript / Court Reporter’s Act & record reconstruction	Smego: Off-the-record removal violated recording requirements; Rule 10 reconstruction insufficient given delay and lack of detail	Defendants: Rule 10 reconstruction and district court’s reliance on its usual practice suffice; no prejudice	Court: §753/recording covers off-the-record events but reversal not automatic; Rule 10 reconstruction reviewed for clear error and here was permissible; no prejudice shown

Verser v. Barfield, 741 F.3d 734 (7th Cir.) (exclusion of a pro se detained plaintiff after instructions—denying ability to poll—required new trial under facts)
Perotti v. Quinones, 790 F.3d 712 (7th Cir.) (standard for incarcerated litigant’s access to civil court and presence at trial)
Stone v. Morris, 546 F.2d 730 (7th Cir. 1976) (factors district court should weigh before excluding confined plaintiff from trial)
Nolan v. United States, 910 F.2d 1553 (7th Cir. 1990) (failure to record sidebar/off-the-record proceedings requires showing of prejudice; Rule 10 reconstruction appropriate)
Humphries v. District of Columbia, 174 U.S. 190 (importance of jury poll to ensure assent of jurors)
Link v. Wabash R.R. Co., 370 U.S. 626 (attorney acts as agent; client bound by attorney’s acts/omissions)
Fillippon v. Albion Vein Slate Co., 250 U.S. 76 (right to be heard includes presence in person or by counsel)