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Will Kimberly Kessler be allowed at her own trial?

Despite her 6th Amendment right to be in the courtroom, it's unknown whether the perpetually disruptive murder defendant will be allowed to attend her August trial.

YULEE, Fla. — (Some elements of this story may be disturbing)

Wrapped in a suicide smock and strapped to a restraint chair, Kimberly Kessler was wheeled, shouting, from a Yulee courtroom last week.

She was forced to watch her mental competency hearing via remote video link.

According to Nassau County Court bailiffs, she spent most of the hearing screaming at the screen – unheard and unseen by anyone in the courtroom.

It’s not the first time Kessler, who is charged with murdering her former coworker Joleen Cummings in May 2018, has been disruptive. 

She was removed from previous hearings after screaming profanities at the judge and cursing at her lawyers. She missed other hearings after her jailers say she stripped naked and spread feces around her cell.

But the question of whether Kessler will be able or allowed to attend her August trial is unanswered, and her right to be present – or even seen – yet to be determined.

Generally speaking, the 6th Amendment to the U.S. Constitution guarantees defendants the right to be present “in all criminal prosecutions,” in order to confront their accusers. But according to the federal Rules of Criminal Procedure, defendants waive that right if they continue to be disruptive, even after a warning from the judge.

“She doesn't have a right to disrupt the courtroom,” says First Coast criminal defense attorney Janet Johnson. “So the judge, it's within his power to remove her. But she also has a right to confront any witnesses against her. So he has to weigh that.”

Federal case law says there are “at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant” including “bind and gag him” and thereby keep him present by force. Another option is to remove the defendant “until he promises to conduct himself properly.”

Though the case is in state court, not federal, Circuit Judge James Daniel would have similar flexibility. But for a jury, deciding guilt or innocence for a defendant who is entirely absent could be challenging.

“The jury, obviously, them ‘seeing’ her is not necessarily a right -- but it's part of the due process that she's allowed as a defendant in a trial,” says Johnson. “There might be some concern from a jury to say, ‘Can we convict someone who isn't even well enough to sit in the courtroom?’”

Kessler’s public defenders have repeatedly sought to have her deemed incompetent to stand trial. Sixth Amendment protections also require that a defendant be mentally competent – generally defined as able to comprehend court proceedings, understand the charges and assist in his or her own defense.

Last week, for a third time, Judge Daniel found Kessler is mentally competent – even though she refused to meet with the court appointed psychologist.

She has also refused to meet with her lawyers, apparently believing – as she repeatedly shouted in court last week – that her former public defender, Jordan Beard, is related to the victim, Joleen Cummings (a claim Judge Daniel says is demonstrably false).

“This is why they tried to have her deemed incompetent to proceed, because, you know -- can she participate in her own defense?” Johnson says, citing one of the three prongs of a mental competency determination. “So far, it looks like she can’t.”

The judge, however, believes Kessler is more likely malingering than truly mentally ill.

“It’s my opinion that this is volitional in nature, and not the product of a mental health disorder,” he said in court last week.

The trial is currently set for sometime in August, but the ongoing uncertainty about Kessler’s courtroom behavior could become an issue on appeal, Johnson says. “Her lawyers cannot assist her. It's impossible to defend someone who's, you know, yelling at you and, and angry at you,” she says. “It’s going to make it impossible, really, to put on witnesses and to have a trial.”

Kessler is due back in court on July 8.

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