Defense Counsel, Please Rise': A Comparative Analysis of Trial In Absentia

AuthorSarah C. Sykes
PositionJudge Advocate, U.S. Army. Presently assigned as Assistant Professor, The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia. LL.M., 2012, The Judge Advocate General's Legal Center and School, Charlottesville, Virginia; J.D., 2004, Washburn University School of Law; M.S., 2000, University of Missouri at Kansas City; B.A., 199...
“Run, run as fast as you can. You can’t catch me, I’m the Gingerbread
I. Introduction
On May 27, 2007, Private (PVT) Jonathon Medina viciously beat
and raped a young enlisted female Soldier in her barracks room.2
Assigned to the same battalion, PVT Medina and the victim were
acquainted with each other and attended the same party earlier in the
evening on the night of the attack.3 After investigators matched DNA
recovered from the victim to PVT Medina, his commander charged him
with rape,4 burglary with intent to commit rape, and attempted anal
sodomy.5 On March 17, 2008, the military judge arraigned PVT Medina
and advised the Soldier that if he voluntarily failed to appear for trial, he
could be tried and sentenced in absentia.6 During the arraignment,
Private Medina indicated his understanding.7 On March 20, 2008, on the
eve of his court-martial, PVT Medina voluntarily absented himself from
the proceedings.8 A hearing was held before the commencement of trial
* Judge Advocate, U.S. Army. Presently assigned as Assistant Professor, The Judge
Advocate General’s School, U.S. Army, Charlottesville, Virginia. LL.M., 2012, The
Judge Advocate General’s Legal Center and School, Charlottesville, Virginia; J.D., 2004,
Washburn University School of Law; M.S., 2000, University of Missouri at Kansas City;
B.A., 1998, Benedictine College. Previous assignments include Trial Counsel, 101st
Sustainment Brigade, 101st Airborne Division (Air Assault), Fort Campbell, Ky., 2005–
2007; Trial Defense Counsel, Fort Campbell Field Office, Fort Campbell, Ky., 2007–
2009; Special Victim Prosecutor, Region VIII, Fort Benning, Ga., 2009–2011. Member
of the bar of Kansas and admitted to practice before the District of Kansas, the Court of
Appeals for the Armed Forces and the Supreme Court of the United States.
2 United States v. Medina, No. 2008-0233 (A. Ct. Crim. App. June 2008), cert. denied,
United States v. Medina, 09-0775/AR (C.A.A.F. Dec. 4, 2009).
3 Id.
4 Transcript of Record at 5, United States v. Medina (No. 2008-0233).
5 Id.
6 Id. A “trial in absentia” is a “trial held without the accused being present.” BLACKS
LAW DICTIONARY 1645 (9th ed. 2009).
7 Transcript of Record at 24, United States v. Medina (No. 2008-022).
8 Id. at 61.
the following day, wherein the military judge heard testimony from PVT
Medina’s mother, his roommate, a friend from his unit, and the company
first sergeant regarding PVT Medina’s actions the last night for which he
was accounted.9 After hearing the evidence, the military judge found
that PVT Medina voluntarily absented himself and the Government made
all necessary efforts to procure his presence at trial to no avail.10 The
trial proceeded without the accused present and an officer panel the court
convicted PVT Medina of rape and unlawful entry,11 sentencing him to a
reduction to the lowest enlisted grade, forfeiture of all pay and
allowances, confinement for thirteen years, and a bad-conduct
Rule for Courts-Martial (RCM) 804(c) allows for trial in absentia if
an accused voluntarily absents himself before the start of the court-
martial but after arraignment.13 This approach conflicts with the
corresponding civilian federal rule and with international law. Under
federal law, a civilian accused may not be tried in absentia without being
present at the beginning of trial which does not include arraignment.14
States have enacted laws that either adopt the federal view or take the
opposite approach to allow for trial in absentia once an accused is
notified of a court date.15 In the international arena, trials in absentia
“are controversial and the subject of critical review by . . . leading
human rights bodies. . . .”16 Internationally, in absentia trials are
generally not permitted unless the “individual convicted in absentia may
obtain a retrial.”17 From an ethical standpoint, trials conducted in
9 Id.
10 Id.
11 Id. at 251.
12 Id. at 290.
13 MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 804(c) (2012) [hereinafter
2012 MCM].
14 FED. R. CRIM. P. 43(b); Crosby v. United States, 506 U.S. 255 (1993).
15 Kurtis A. Kemper, Annotation, Sufficiency of Showing Defendant’s “Voluntary
Absence” from Trial for Purposes of State Criminal Procedure Rules or Statutes
Authorizing Continuation of Trial Notwithstanding Such Absence, 19 A.L.R. 697 (2006);
Gov’t of the Virgin Islands v. Brown, 507 F.2d 186 (3d Cir. 1975); United States v.
Peterson, 524 F.2d 167 (4th Cir. 1975); United States v. Pastor, 557 F.2d 930 (2d Cir.
1977); Commonwealth v. Hill, 723 A.2d 255 (Pa. Supr. Ct. 1999).
16 Chris Jenks, Notice Otherwise Given: Will In Absentia Trials at the Special Tribunal
for Lebanon Violate Human Rights?, 33 FORDHAM INTL L.J. 57, 61 (2009); International
Covenant on Civil and Political Rights art. 14, Mar. 23, 1976, 999 U.N.T.S. 171;
Convention for the Protection of Human Rights and Fundamental Freedoms art. 6, Nov.
4, 1950, 213 U.N.T.S. 222 [hereinafter CPHRFF].
17 Id.
absentia present insurmountable ethical issues for defense counsel
representing the accused.18
This article examines the rights afforded an accused under military
law, civilian federal law, various state laws, and international law with
regard to trial in absentia. Part I explains the history of military trials in
absentia and examines the application of the current rule and case law,
with particular attention paid to how the unique structure of the military
may affect the treatment of an accused who voluntarily absents himself
prior to trial. Part II compares the military trial in absentia provision to
the federal rule to demonstrate the disparity between the two. Part III
examines the international stance on trial in absentia from both a
doctrinal standpoint and a human rights perspective as compared to the
military approach. The ethical implications of the current military
system governing to trial in absentia and how the federal rule ensures a
more equitable and ethical process are discussed in Part IV. In
conclusion, this article argues for a change in policy in the military
criminal justice system to bring it in line with the federal system and
international practices to create a more fair and equitable judicial process
for the absent accused.
II. Military Trials In Absentia
A. History
One of the earliest mentions in American military writing of trial in
absentia was in Military Law, “a comprehensive treatise on the science
of Military Law,” written by Colonel William Winthrop, former
Assistant Judge Advocate General of the Army, in 1886.19 Colonel
Winthrop wrote extensively on the court-martial process and discussed
the manner in which to proceed in the event an accused absented himself
from custody and was not present for trial.20 Understanding that the
presence of the accused was fundamental to an equitable court-martial,
Colonel Winthrop carved out several exceptions:
18 See Franics A. Gilligan & Edward J. Imwinkelried, Waiver Raised to the Second
Power: Waivers of Evidentiary Privileges by Lawyers Representing Accused Being Tried
In Absentia, 56 S.C. L. REV. 509 (2005); James G. Starkey, Trial In Absentia, 53 ST.
JOHNS L. REV. 721 (1979).
20 The Supreme Court recognizes Colonel Winthrop as the “Blackstone of Military
Law.” Hamdan v. Rumsfeld, 548 U.S. 557, 597 (2006).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT