DA Sutter says who needs a Defendant – hold the trial without them and send them to jail
Everyone is entitled to their day in court, but many defendants don’t want to be there for it.
No matter, the show will go on, prosecutors say, with our without the accused.Prosecutors plan to start trying criminal cases in District Court even if the defendant does not bother to show.
“There are 6,000 active cases in Fall River District Court. Of those, 2,800 are in default,” said First Assistant District Attorney William McCauley.
“Our intent is, if they don’t show, to try them in absentia.”
William McCauley works for DA Sam Sutter. But wait, whatever happened to “innocent until proven guilty”?
The goal here, like having over worked public defenders with no caseload limits is a goal of DA Sutter’s, is to efficiently move cases along. To quote McCauley again:
“We want to make sure there is an efficient management of cases,” McCauley said.
Who needs justice if the system can be efficient instead:
“The default (failing to appear for a court date) grinds the system down. We can’t efficiently manage the system.”
The rememedy? Just try them, lock them up, and let the taxpayers provide room and board for however long, at $43,000.00 a year.
To quote McCauley again:
Prosecutors say a judge should be able to hold the trial and even sentence a defendant if the defendant is convicted. If that happened, a defendant tried and convicted in absentia could end up spending two years in jail after getting stopped for running a red light.
It is a harsh system, but more fair than the current practice, McCauley argued.
This message must resonate across the DA landscape, since DA Samuel Sutter was elected the President of the District Attorney Association
Whatever happened to this country’s search for equal access to justice?
…that a defendant be allowed to confront witnesses against him, which presumably requires his presence in court? However, you wouldn’t want a defendant to simply not show up to delay his trial. Am I correct in assuming that we are talking about those who are not held over for trial and that a bench warrant can be issued for the arrest of a defendant who doesn’t show?
THIS is a major change from current practice. It sounds to me like folks will be told “no bail unless you waive your right to be present at trial should you not appear when we schedule your trial”. Some of those folks may be desperate to get out, unable to make bail, and illiterate or marginally literate, cognitively challenged, etc. and don’t know what they are waiving. What I suggest is that reading the whole article (which I cannot just post for copyright reasons) is worth doing.
<
p>So the full risk in signing this kind of preprinted boilerplate “waiver” may well not sink in.
<
p>I think that this may well not pass constitutional challenge, downstream and at any event, is treating humans like widgets to process down an assembly line.
Since when can the DA do anything more than ask the judge for conditions such as a waiver? If I were a judge in Bristol County, I would be insulted by a DA like Sutter insisting on something that is not in his purview.
<
p>It seems obvious that signing a waiver under duress will likely void the waiver the second an honest court considers it. This is a stupid practice designed to win votes, not justice. All of these cases will likely eventually be tossed by the SJC and Bristol County will have a hell of a class action lawsuit on its hands.
<
p>I agree with your solution – increase and enforce the civil penalties for no-show. Only after a defendant has demonstrated that he is a flight/no show risk should inordinate bail or requirements be mandated.
Looks like a lot of people are given ample opportunity, but say awww screw it.
…then he is not their to confront the witnesses against him. He would, I imagine, have to very explicitly waive that right.
I am not a lawyer, but could the failure to show up for your court date constitute a waiver of your right to confront witnesses?
I don’t know squat about how all of this works. I wonder though, if some of this could be resolved by:
* Addressing just what the penalty for defaulting is
* Working with public defendants to counsel their clients about why defaulting is such a bad idea.
<
p>My hunch is that progress could be made without mucking with a process that goes back hundreds of years, probably for good reason.
Can we agree that when nearly 1/2 the cases are in default because the defendant does return to court to adjudicate their arrest, it is a serious problem?
<
p>In fact, I would argue is undermines our system of justice to the same degree that people feel this solution would undermine the system.
<
p>Remember, many of the cases these defendants default on have victims…victims of domestic assault or loss of property. Or involve people with alcohol or substance abuse issues that the community has every right to “control” the behavior of (via court ordered counseling and probation supervision) before their alcohol or substance abuse issues result in more deadly consequences (for themselves or others).
<
p>I’m not qualified to participate in the debate regarding legal pros and cons on Sutter’s proposals. But I can recognize a serious problem when I see one and letting nearly half the criminal cases go unresolved is a serious problem. Right now we have someone suggesting a solution.
<
p>But a critique of the plan is hollow without recommending how the problem can be solved.
A huge number of cases, especially in this district, are non-violent drug offenses.
<
p>That district, like the others, have been getting around marijuana decriminalization by charging intent to distribute even when the defendant carries less than one ounce and the marijuana is not divided into a bunch of joints or smaller bags.
<
p>One solution would be to legaliza marijuana (and regulate and tax it). Somehow that idea is still too radical, even among most liberals, despite the overwhelming evidence in support of its benefits. No one can argue for marijuana prohibition by claiming it is too dangerous with a straight face if they are not also in support of alcohol prohibition. That would shrink the caseload and also create revenue sources to fund things aimed at reducing drug use, poverty, or even fund more policing.
<
p>Another option would be to follow the spirit of decriminalization and not create a huge load of cases by trying to go around it.
<
p>The DAs could also exercise some discretion and bring fewer cases or make more appropriate plea offers. For example, maybe we can end the practice of DAs seeking the max at trial after the defendant refused to take a lesser plea, and thus making trail a much riskier endeavor. Being punished for exercising one’s constitutional rights isn’t good for anyone.
<
p>
I had not heard that, they only issues I heard the cops/DAs complaining about is the law was unclear about how the fines are collected and what programs are available for teens busted.
<
p>Like most things in District Court, I assume–as I stated above–lots of these cases involve drugs…but with the prescription drug / heroin problems impacting all corners of the state, I’m going to assume these are more serious issues than the MAN trying to get around decriminalization and that’s why I’d appreciate it is you could give me more information.
This is what I have heard from a friend at the CPCS- Fall River office. A huge percentage of the cases are non-violent drug cases with many marijuana-based. I think our serious issue with drugs is the fallout and related crime coming from drug prohibition.
<
p>I view this plan as a way to make our horribly unsuccessful Drug War more “efficient.”
<
p>Of course I care about victims, but with the majority of cases being non-violent drug cases, I think those concerns about victims can be vastly overstated for propaganda purposes.
…corporate drug dealing. A perfect storm has formed with the introduction of a number of opiate based prescription drugs and the influx of stronger and cheaper heroin. It ain’t pot need need to be talking about here.
Amber,
<
p>What do you propose to do for the victims and witnesses who take time off from work to appear before the court only to have the defendant decide (or forget) not to show up? If the trial date is rescheduled and the witnesses or victims do not show up and the defendant does then does the DA have a chance to reschedule to get the witnesses to appear or does the defendant “benefit” by not showing up the previous time(s)?
<
p>I understand your concern about holding a trial without the defendant there, but how many times are they allowed not to appear before it is too many? Is it 1, 2, 3 or some other number?
As some may remember, in Padilla v. Kentucky , full decision here as well as a link to oral argument and interpretation Mr. Padilla’s attorney did not inform him that a guilty plea could and probably would lead to deportation. As a result, the United States Supreme Court overturned his conviction. This led to a very large number of appeals and overturned convictions, which was expensive on many levels. One would hope it also led to improved performance by court room lawyers, though indigent defense is in crisis and in county run systems a staff public defender may have 800 cases and not speak to their poor client until the date of trial. Case overloads are leading to problems like that all over the country
<
p>One of the many problems about “waiving” one’s appearance, is that the consequences are potentially so harsh – few would agree that a two year sentence for running a red light is just, as the DA in the article cited above points out. In the event that Joe Defendant signs a waiver, cannot read, and a consequence of signing that waiver, being convicted in absentia when a trial would have led to a not guilty verdict might be, pick one loss of subsidized housing for a family, deportation, ineligibility for student loans, suspension from school or college for a crime Joe Defendant did not do.
<
p>Offering the tantalizing “deal” of waiving bail so the accused can immediately go free rather than wait weeks or months in a county jail with at times deplorable, overcrowded conditionsmight be irressistible to a 19 year old with an IQ of 80 arrested for disburbing the peace or shoplifting an Ipod – such an individual might grab the so-called “good deal” without realizing its consequences, including the consequence of not staying in touch with their attorney and defaulting.
<
p>If such a default then became a case on appeal, like the result in Padilla v. Kentucky, putting expediency ahead of the protections in our constitution is likely to be struck down, invalidating the entire class of default convictions, and benefitting no one.
<
p>I have not yet seen this alleged waiver form being pushed in Bristol County by DA Sutter. I have asked attorneys I know to get me one. I do not accept criminal appointments AND I do not practice often in Bristol County though I have represented a few divorce clients there.
<
p>My concern is the cavalier treatment of “innocent until proven guilty” as well as the Open Court Clause, Article XI of the Massachusetts Constitution. The best explanation of why the open court clause was formulated by John Adams I have read to date is this article by Daniel Halston which I heartily recommend.
<
p>The work of the current Commission which was authorized in 2005 by Chapter 54 of the Acts of 2005 which is looking into removing incarceration from midemeanors like shoplifting is directly relevant. Wherever incarceration is no longer a punishment for a crime, the right to counsel goes away, and fines and penalties that are intended to extinguish the behavior becomes the norm.
<
p>Ensuring that defaulting from appearing for a court date in a criminal case leads to meaningful negative consequences that are not out of proportion makes far more sense then eliminating constitutional rights for mere expediency. Examples of what I consider to be appropriate consequences would be: Loss of drivers license; fines on a per day basis that add up quickly, bench warrants where you pay for the state’s costs in arresting you whether or not you are indigent which can easily be $300 or more, and no waiver on attendance to be released without bail for violent crimes or over the objection of a victim, ever.
<
p>I interpreted it to mean that a person who had not shown up for court and the trial (and conviction, and sentencing) went on with out him who then gets stopped for running a red light could face two years for the non-driving related stuff.
But the concern as to a Padilla-type problem is, I think, real.
I have a great idea to save you all sorts of time and money, since that seems to be your biggest concern. Forget Trial in Absentia. I say you should employ –
<
p>Summary Judgement.
<
p>That’s right. Let the police play judge and jury aside from their roles as law enforcement and you will hardly ever have to step into a courtroom. Heck, you might not even have to go to your office except for photo ops.
<
p>Think about it. Efficiency at its best. Why do you think so many dictators and Jim Crow era folks thought it was a swell idea? Because it save them money and it was “more fair than the current practice.” Duh!
<
p>Anyhow, it would serve those miscreant shoplifters and drunks right to have Officer Krupke let them know what he really thinks of them. I mean, who can serve justice better than a tough guy with a gun and badge? You obviously understand this point better than the masses (and the framers of the Constitution.)
<
p>It’s good to see someone in Massachusetts acting more like Sheriff Joe Arpaio and less like than pansy from Philly, Ben Franklin, with his ‘It’s better that 10 guilty men go free than one innocent man be wrongly convicted.’ I mean it’s no wonder neither the Eagles or Patriots are in the Superbowl with sissy-talk like that.
<
p>Obviously if you can’t afford a good defense, you are probably guilty (and you’ll never win an AFC title, either!)
<
p>Keep fighting the good fight.
<
p>Yours truly,
Greg
Perhaps our local pd’s or state police could spend less time watching DPW workers fill potholes and instead go pick up some of these people and bring them to court. Don’t these defendants get warrants issued for their arrest when they don’t show? If the police can’t or won’t do this, maybe the County Sheriffs (Special ones too) would be wise take up the task? This would, at least, help justify their continuing existence.
<
p>Regarding DA Sam Sutter, he seems to be putting the cart before the horse in a big way here. Obviously, efficient administration of justice is desirable outcome, but it doesn’t count if the efficiency is at the expense of justice itself. I doubt he would actually go through with this, if only because it would be very awkward and even embarrassing for working DA’s and judges to have to go through with thousands of these charade non-trials. Furthermore, it might be reasonable to try a person “in absentia” if they’ve fled the country or something. But it’s beyond absurd to do that when, as would be the case in district courts, most of the defendants are actually living and/or working within a few miles of the courthouse.
<
p>Anyone who has spent even a little time in MA courthouses can see that they are too often dysfunctional law-sausage factories. The solution to this is for the people who run parts the system to look inside their own operations (and co-operation) and not just trying to childishly blame it on the only people in the process who have no role in setting up how things work or helping to run it.
the sheriff’s departments are not trained or equipped for the kind of law enforcement carried out by police officers. Sheriffs typically run the jails. They may be good at what they do, but it’s very different than the work of the police.
<
p>Sheriffs have a “law enforcement” branch. They march in parades mostly. Occasionally, local PD’s call them in to direct traffic. During the Big E, they patrol the grounds. In Hampden County, this branch is informally referred to as “shuckers” because they are often volunteers at the sheriff’s annual clam bake.
<
p>I don’t know of anyone in law enforcement who would want to put sheriff’s people in the position of serving bench warrants or tracking down scofflaws.
<
p>The Herald article states
Boy, that kind of sounds fair to me. The DA has to prove that the defendant skipped trial on purpose. Sutter wants a presumed guilty finding for the people who can’t afford bail?
<
p>And food for thought: where are the complaints of all the other DA’s? What are their rates of no show defendants? Is this a problem everywhere or just in Bristol County?
So maybe our rate is better?
<
p>You people are IDIOTS if you allow this stuff to go on. County Government – Put it to work, or abolish it. But stop denigrating it because you can’t be bothered to use it.
was abolished.
are not real sheriff guys. They’re sort of like auxiliary police, i.e. not on the payroll, except in rare situations. That’s Hampden County. I don’t know if Hampshire County–where I live–even has those guys. I kind of don’t think so. The real sheriff workers work at our jails. That’s it.
<
p>Does any other Massachusetts county use the sheriff’s department except Barnstable County? The Hampshire County sheriff’s challenger suggested that the sheriff’s office start patrolling and doing regular law enforcement. The law enforcement people I talked to laughed out loud. We’d have to train existing workers, take them out of their jobs to do law enforcement, and hire new workers to do a job our local police departments already do as part of their jobs.
I think – and hope – that a court would not conclude that a criminal defendant has waived his right to trial solely on the grounds that (1) the prosecutor has produced a piece of paper with his signature to that effect and (2) the defendant did not appear for trial.
<
p>Here’s a case decided by the Supreme Judicial Court in 2005. The issue was whether the criminal defendant waived his right to a pre-trial hearing solely because he failed to appear at the hearing. The answer was “no.” “Waiver of the right to be present at trial is not…automatic,” the Court said.
<
p>The Court stated that the trial judge could decide based on the facts of each case whether there had been a waiver of rights. Relevant facts would include whether the prosecution gave the defendant adequate notice of the date and time of the hearing, whether the waiver was voluntary, whether the defendant would still be represented by counsel despite his absence and whether the prosecution and witnesses had attended the proceeding and were ready to go forward.
<
p>Presumably, the defendant’s signature on a waiver form might be considered as evidence that the defendant had waived his right to trial. But because the court would need to consider other relevant facts of the case, the waiver form, coupled with the defendant’s absence, would still be insufficient.
<
p>(And if signing the waiver form is a condition for getting released on bail, it’s really hard to make the case that it’s voluntary.)
<
p>I hope DA Sutter reconsiders this. The last thing the court system needs is a lot of criminal cases to retry because the prosecutor felt like cutting some corners.
I can appreciate Mr Sutter’s interest in trial in absentia. It seems the whole legal system is run as one large sausage factory. DAs get numbers as convictions which equal production.
<
p>Law, much less justice, stands in the way of the factory’s production. Not just here, but throughout the country. The Nifong situation, the Dallas connived convictions and a host of others show that. There’s no quality control as you’d find in a sausage factory. (Here in Massachusetts, when was the last time a DA or assistant DA stood before the Board of Bar Overseers? Maybe their all squeakie clean!)
<
p>How simple just to move the defendant out of the picture. Numbers of conviction would skyrocket, dropping the number of open cases. Since the defendant is missing, the already overloaded prison system sees no increase of inmates. What a win/win situation. Genius.
<
p>But how long before defendants have their court dates changed to cause defendant confusion and frustration so the DA can put on the trial without a defendant? (Defense attorneys do that now so witnesses don’t show up when the real trial begins.)
<
p>This slippery slope just leads to more production and less law. Isn’t the public contempt for the justice system low enough?
The right to be present for trial is a constitutional right… but like other rights, it may be waived if the proper procedure is undertaken. Seems like the court, when setting a trial date, can simply tell the defendant – if you don’t show up, it will constitute a waiver of your right to be present. As long as he understands that and the consequences, seems kosher to me.
Not a sign here and get out of jail free without true understanding, not to mention these dates get bounced by the DAs and continued by police frequently – a defendant can show up, case continued, date not so clear.
The Court agrees with you that a right can be waived if the proper procedure is undertaken. Here are two examples of what the court thinks the proper procedure is.
<
p>As Amber says, trial dates are frequently changed, so even if a trial date is provisionally set when the defendant is in court, the proper procedure includes an assurance that the defendant has actually received notice of any date change and in the event he doesn’t attend, a determination of whether he had good cause for not attending.
<
p>A waiver of a constitutional right has to be voluntary. If a defendant’s right to be free on bail pending trial requires that he first sign a piece of paper waiving his right to trial, I think the court would say that is not voluntary.
<
p>Agree?
<
p>