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boneshwah · Oct 20, 2009, 10:51 PM

If the court schedules but failes to notify the defendant of a preliminary hearing or arraignment, and a bench warrant is issued, what steps should the defendant take? Presumably the court would have to prove that notification was sent. How would they do this? Is their word sufficient or does the burden of proof rest on the court? It seems the defendants recourse would be limited due to arrest upon going public.

What is the best advice for the defendant?

excon · Oct 21, 2009, 06:04 AM

Originally Posted by boneshwah

If the court schedules but failes to notify the defendant of a preliminary hearing or arraignment, and a bench warrant is issued, what steps should the defendant take? Presumably the court would have to prove that notification was sent. How would they do this? Is their word sufficient or does the burden of proof rest on the court? It seems the defendants recourse would be limited due to arrest upon going public.

What is the best advice for the defendant?

Hello bone:

I think you've got things kind of backwards... The court doesn't have to prove anything to you. It's YOU who has to prove stuff to the court... If you contact the press, they'll laugh at you. Nobody violated your rights here.

excon

boneshwah · Oct 21, 2009, 12:21 PM

I understand what you mean, but a person cannot prove what did not happen. Things that do not happen do not have evidence, but can only be assumed not to have happened based on a lack of evidence. Since the defendant cannot search the court database to prove anything, the burden of proof does rest on the court. Whether this is practically true, it is true. There must be some precedent for this.

twinkiedooter · Oct 21, 2009, 12:44 PM

If the defendant did not get any sort of notice of when to show up in court they should have contacted the Clerk to inquire when they should show up in court. They would have been told the date and time by the Clerk. Whether the docket is available online or not - the person could have called the Clerk's Office. Phones are rather prevalent these days and access is really good I hear. Plus this information is public information available to anyone who can pick up a phone and dial the courthouse. Not too tough a feat.

The onus is on the defendant to find out. Whether they had an attorney or not. Whether the info is available on the net or not. Probably 50% of the courts information is not available online. Usually smaller courthouses do not do the net. The county below mine is not online even though mine is online.

There is no precedent for this. It's called common sense. Won't fly with the judge. Sorry.

excon · Oct 21, 2009, 12:56 PM

Hello again, bone:

You're right, and not so right... Often times people are released from custody or aren't even arrested in the first place, and no charges are levied...

But, the cops, in most instances, have three years within which to levy charges... The part where you're right, is that the court probably made some effort to notify the accused. If that notification came back, they didn't try any harder and issued a warrant.

If, however, since the event, the accused didn't move and received nothing, then you're right. They were remiss in their duties...

I say remiss, because although they SHOULD have informed him, by NOT informing him and arresting him instead, did NOT violate his rights. Consequently, and this is where you're wrong, since no rights were violated, they have to prove nothing.

As a matter of fact, sometimes when they bring charges, they really don't want to mail the defendant a letter because he might run. They just come out and arrest him. I don't know. Maybe that was the case here.

excon

twinkiedooter · Oct 21, 2009, 01:01 PM

Exie, I agree with your rationale. But if the defendant did not give the proper address when arrested (which happens all the time - no big surprise here) then they could never be notified.

I tend to think it's the latter scenerio as you so aptly mapped out about not wanting to tip off the defendant as they might skip.

Only a close look at the file in the Clerk's Office would uncover the exact circumstances leading up to this.

boneshwah · Oct 21, 2009, 08:40 PM

This would seem to be a violation of procedural due process. If the accused has amply supplied the authorities with contact information, and the authorities did not notify the accused of an arraignment, and then subsequently issued a warrant for arrest, and then did not arrest the accused... and the defendant is finding this out and wondering why he hasn't been arrested and what the heck to do, what legal recourse is there? A person who is able to face trial from home has a better chance of winning.

I appreciate your replies.

excon · Oct 21, 2009, 09:31 PM

Originally Posted by boneshwah

This would seem to be a violation of procedural due process. If the accused has amply supplied the authorities with contact information, and the authorities did not notify the accused of an arraignment, and then subsequently issued a warrant for arrest, and then did not arrest the accused... and the defendent is finding this out and wondering why he hasn't been arrested and what the heck to do, what legal recourse is there? A person who is able to face trial from home has a better chance of winning.

I appreciate your replies.

Hello again, bones:

Instead of editorializing ABOUT the incident, why don't you tell us what happened, and maybe we'll have better advice.. I still don't know what happened.

excon