Section 25 To Secure the Attendance of Defendant or Witness

• Library: Remedies 2006

A defendant who is in custody may be produced before the court for the purpose of prosecution by means of a writ of habeas corpus ad prosequendum, State v. Savage, 461 S.W.2d 887, 890 (Mo. banc 1970); State ex rel. Brooks v. Bone, 473 S.W.2d 681, 682 (Mo. 1971), and this order may go to any other county. A writ of ad prosequendum is not used to question the legality of the restraint but only to remove a prisoner to the proper jurisdiction for trial or other trial related proceedings. State v. Branstetter, 107 S.W.3d 465, 471 (Mo. App. W.D. 2003). But filing the writ does not automatically lodge The Uniform Mandatory Disposition of Detainers Law (UMDDL), §§ 217.450–217.485, RSMo 2000, which requires prosecuting officials in the “holding jurisdiction” to try any untried charges unless there is prejudice shown in the current incarceration. Branstetter, 107 S.W.3d at 477. To show prejudice in order for UMDDL to apply, a petitioner must prove additional facts and circumstances that demonstrate that the petitioner has been treated by prison officials as if a formal detainer had been lodged against the petitioner, such as being assigned to administrative segregation, being given a higher security level, or being declared ineligible for educational treatment, rehabilitation programs, and parole. Id.

To produce a witness in custody for the purpose of that witness’s testimony in court, a writ of habeas corpus ad testificandum may be used. Sections 491.230 et seq., RSMo 2000; Rule 26.04. After a showing of substantial and irreparable injustice, the “trial judge may issue a writ of habeas corpus ad testificandum.” Section 491.230.2(2) (emphasis added). A writ of habeas corpus ad testificandum is within the discretion...