ILNews

Split court rules no-shows forfeit right to trial attendance, counsel appearance

Michael W. Hoskins
January 1, 2007
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If a defendant doesn't appear at a trial he or she knew about, a trial court can consider that a knowing and voluntary waiver of that person's right to be present and to have counsel appear there, the Indiana Supreme Court ruled on Tuesday.

Justices ruled 3-2 in Carlos M. Jackson v. State of Indiana, No. 15S01-0609-CR-333, which involved a man found guilty of possession of cocaine with intent to deliver and possession of an unlicensed handgun. Jackson was ordered to attend pretrial conferences in late 2002, but didn't do so and also didn't attend the jury trial in January 2003. The state proceeded without him and convicted him in absentia after the two-day trial.

Jackson appealed on grounds that he didn't know about the trial, and the Dearborn Circuit Court denied his motion to correct error. But the Court of Appeals last year reversed and remanded for a new trial.

In Tuesday's ruling, the Supreme Court held that a trial court may find a knowing and voluntary waiver of a defendant's right to be present at trial if that person knew his or her trial date, and if no adequate reason was provided for an absence. Justices also held that a court isn't required to re-advise a defendant of the right to counsel or the perils of self-representation when revoking a defendant's attorney's pro hac vice status if that person was advised at the initial hearing, or if they'd already retained an attorney or hadn't advised the court of an intent to proceed pro se.

"Under these circumstances, a defendant's intentional and inexcusable absence from trial can serve as a knowing, voluntary, and intelligent waiver of the right to counsel," the court wrote. "We cannot expect a trial court to hunt down a defendant to admonish him about the dangers and disadvantages of self-representation if the defendant has made no indication to the trial court that he intends to proceed pro se and then subsequently does not show up for trial."

However, dissenting Justices Robert Rucker and Frank Sullivan joined together to write that Jackson didn't knowingly or intelligently waive his right to counsel.

Justice Rucker wrote, "I agree that a trial court cannot 'hunt down a defendant to admonish him'... Such an inquiry is quite obviously impossible when a defendant fails to present himself before the court. But one's fugitive status is a separate wrong with its own consequences, and returned fugitives should be punished, if appropriate, for violations of court orders or statutes which compel their presence in court. It is not grounds for forfeiting the right to representation by counsel."
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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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