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

• Author: Sarah C. Sykes
• Position: 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., 199...
• Pages: 170-211

170 MILITARY LAW REVIEW [Vol. 216

“DEFENSE COUNSEL, PLEASE RISE”:

A COMPARATIVE ANALYSIS OF TRIAL IN ABSENTIA

MAJOR SARAH C. SYKES

“Run, run as fast as you can. You can’t catch me, I’m the Gingerbread

Man.”1

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.

1 JIM AYLESWORTH, THE GINGERBREAD MAN 9 (1998).

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.” BLACK’S

LAW DICTIONARY 1645 (9th ed. 2009).

7 Transcript of Record at 24, United States v. Medina (No. 2008-022).

8 Id. at 61.

2013] ANALYSIS OF TRIAL IN ABSENTIA 171

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

discharge.12

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 INT’L 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.

172 MILITARY LAW REVIEW [Vol. 216

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.

JOHN’S L. REV. 721 (1979).

19 WILLIAM WINTHROP, MILITARY LAW, at v (1886).

20 The Supreme Court recognizes Colonel Winthrop as the “Blackstone of Military

Law.” Hamdan v. Rumsfeld, 548 U.S. 557, 597 (2006).