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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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