Friday, October 31, 2014

COURTROOM PROOF versus REAL WORLD TRUTH

I got a question a few days ago about the "Common Law Grand Jury" case down in Dixie County and overlooked it until today. The question was quite reasonable. It was occasioned by the fact that the judge issued a capias for failure to appear when the defendant was sitting right there in the courtroom. The result was that the defendant got thrown into jail with no bond for failure to appear at a court proceeding which he actually attended. This gave rise to the question: "How can a judge find that someone has failed to appear in court when he is sitting right there in the court?"

The answer may not be quite as reasonable as the question: There is a difference between courtroom proof and real world truth. Although he was sitting right there, the defendant had failed to prove that he was in the courtroom. Here's how a defendant proves that he has come to court according to his notice to appear:

When a defendant gets a notice to appear in court, he is expected to come to the courtroom and sit in the audience until his name is called. At that time, he is to respond, and come forward, go past the courtroom rail, and stand before the judge's bench. The procedure for getting him out of the audience and before the judge is simple. The prosecutor calls his name, and he steps forward. If he does not step forward, the prosecutor calls his name again. If the defendant fails to respond after his name is called three times, he has failed to appear and a capias can issue for his arrest.

The way it used to work when I was a prosecutor, I'd call the defendant's name and if he didn't answer, I'd make a motion for the judge to issue a capias for his arrest. The judge would direct me to comply with the formalities, and I would call out  in a booming voice "Dan Defendant! Come into court as you are required to do by law or a capias will issue for your arrest! Dan Defendant! Come into court as you are required to do by law or a capias will issue for your arrest! Dan Defendant! Come into court as you are required to do by law or a capias will issue for your arrest!" If I got no answer by the third bellow, I'd turn around and again ask the judge to issue a capias. The judge would then order that  capias issue for the defendant's arrest. I considered myself a sort of a magician. Instead of saying "abracadabra" and producing a rabbit, I bellowed "Dan Defendant! [etc.]" and produced a capias.

On several occasions when I bellowed out the magic words to produce a capias, the defendant would wake up, realize he was being called, and step forward. If he snoozed through the bellowing, then according to the courtroom proof he wasn't there regardless of whether the real world truth was that he was sitting in the courtroom.

In a similar fashion, if a bondsman had posted bond for the defendant to appear and he failed to appear, I would ask the court to estreat the bond [forfeit the bond]. The judge would direct me to comply with the formalities and I would boom out "Barry Bondsman! Produce the body of Dan Defendant in court as you are required to do by law or your bond will be estreated! Barry Bondsman! Produce the body of Dan Defendant in court as you are required to do by law or your bond will be estreated! Barry Bondsman! Produce the body of Dan Defendant in court as you are required to do by law or your bond will be estreated!" The judge would then order that the bond be estreated, and the bondsman could get his money back by going and getting Dan Defendant by the nape of the neck and dragging him to jail.

Again, I felt like a magician, only instead of saying "presto chango" and making the rabbit disappear I bellowed "Barry Bondsman![etc.]" and made his money disappear.