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NO-SHOW WITNESSES Consequences vary by court



Published: Sat, October 2, 2004 @ 12:00 a.m.



By MARALINE KUBIK

VINDICATOR STAFF WRITER

No-show witnesses can cripple courts and cause big problems for themselves, but how often that happens in the Mahoning Valley and the actual consequences vary.

Earlier this month, charges of driving under the influence were dropped against Robert T. Dolan, president of the Campbell Board of Education, after the arresting officer, Thomas McCutcheon, failed to answer a subpoena to appear for his trial.

McCutcheon was no longer employed by the Campbell Police Department at the time of trial.

Judge John P. Almasy of Campbell Municipal Court said it is standard practice for attorneys representing people charged with DUI to seek dismissal of those charges based on an absence of probable cause.

Without the arresting officer's testimony, there is no proof of probable cause, Judge Almasy said.

Although McCutcheon could be held in contempt for failing to appear, city Prosecutor Brian J. Macala said that has not happened in the eight years he's been a prosecutor in Campbell.

It is not uncommon for witnesses not to appear in court, Macala said. But if one person who ignores a subpoena is held in contempt, Macala said, they all should be held in contempt.

Judge Kobly's court

In contrast, every witness who ignores a subpoena is held in contempt by Judge Elizabeth Kobly in Youngstown Municipal Court.

The judge said if the offense is egregious enough, she also fines offenders and sentences them to jail.

Nine out of 10 times, witnesses who fail to appear are involved in a family or neighborhood dispute and assume that if they don't appear, the charges will be dropped, she said.

That isn't so, and by failing to appear, they are in contempt of court. Once they realize that a warrant has been issued for their arrest, Judge Kobly continued, those witnesses usually appear immediately -- often the same day they were to appear in court -- and apologize profusely. Like everyone for whom her court has issued a warrant, they pay a $60 warrant fee.

As a result of her no-nonsense policy, Judge Kobly said witnesses' failing to appear "is not an ongoing problem. It's the exception to the rule."

Police officers are held to the same standard as other witnesses in Judge Kobly's court.

In her four years on the bench, a police officer failed to appear without being excused only once, the judge said.

As a result, she issued a warrant for his arrest, he appeared, paid the $60 fee, the case was reset and the officer never failed to appear again, she said.

Can ask for continuance

Anyone can ask that a case be continued if they know they won't be able to be there because of a legitimate reason, she said. "Just not showing up is so wrong. It clogs everything up and costs the city a whole lot of money."

In Youngstown Municipal Court, witnesses are paid $12 for appearing. Police officers are compensated according to provisions in their contracts. Failing to appear means the case will be reset, subpoenas will be reissued, and everyone will be paid a second time.

"There is always additional time and expense involved whenever things don't work the way they're supposed to," agreed Judge Robert Milich, also of Youngstown Municipal Court .

Witnesses' not showing doesn't happen that often, Judge Milich said, but when it does, it is a problem.

The first thing the judge does when witnesses don't show is to check the record to ensure their subpoenas were served. If they were, and the witnesses are crucial to the case, he said, the prosecutor may move to have a warrant for arrest issued for each witness. If a warrant is issued, Judge Milich explained, the case would be continued, but not indefinitely.

Some prosecutors subpoena more witnesses than they actually need, he said. In those instances, cases may be able to proceed without those who fail to appear.

In Struthers court

In Struthers Municipal Court, Judge James R. Lanzo said 95 percent of witnesses appear as required "because we make sure they get their notices."

When they don't show, he said, "I try to reset the case because you don't know why they aren't there. Some courts tell you there are no good excuses," he said, "but it's really a gray area."

Medical problems or out-of-town work could be considered legitimate reasons for failing to appear, Judge Lanzo explained.

He said that when witnesses don't have legitimate excuses for not showing, he issues bench warrants for their arrests.

Police officers almost always show, he added.

When police officers fail to appear, it is most often because they have taken positions with other departments and don't receive their notices or are on the job in their new communities, said Carol Clemente-Wagner, Struthers prosecutor.

In those instances, the person charged may plead, or the case may be dismissed, she said.

"It's up to the prosecutor to make a motion and up to the judge to decline or approve it."

Some cases, dismissed without prejudice, could be refiled when the witnesses become available, Clemente-Wagner said. "I've never done that because I don't want to bog down the court."

Personally served subpoena

Judge Thomas P. Gysegem of Warren Municipal Court issues warrants only for witnesses personally served subpoenas by the court's bailiff.

If a witness is not personally served, the court can't be certain that they knew they were required to appear, Judge Gysegem said.

Those cases are automatically dismissed when witnesses fail to appear, as are cases where witnesses can't be served, he said.

Police officers are never personally served, Judge Gysegem said, and the court sometimes has problems getting them to appear. But, like other witnesses who are not personally served, they are not held in contempt and the cases are dismissed.

Will 'work something out'

Robert Johnson, Girard prosecutor, said that when witnesses fail to appear he usually tries to "work something out with the defense attorney" so that he doesn't need to ask for a continuance and fewer cases are dismissed.

When police officers fail to show, Johnson said, the reason they aren't there usually determines whether the judge issues a continuance or dismisses the charges.

Private citizens are less likely to appear than police officers, Johnson said, and witnesses in domestic violence cases are least likely to appear.

The first time a domestic violence victim fails to appear, the case will likely be continued, he said. The second time, the case will likely be dismissed without prejudice. A warrant could be issued for the witness, Johnson said, but that doesn't always happen because the court's intention is not to make the witness a victim a second time: "First they are the victim of domestic violence, then there's a warrant out for their arrest."

Overall, witnesses fail to appear for 15 percent to 20 percent of cases heard in Girard, Johnson estimated.

The prosecutor and defense attorneys come to an agreement on some of those, Johnson noted, so relatively few cases are dismissed.

kubik@vindy.com




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