Washington Defendants' New Right of Pre-trial Flight

• Publication year: 1996
• Citation: Vol. 19 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 19, No. 3SPRING 1996

NOTE

Washington Defendants' New Right of Pre-Trial Flight

Christopher T. Igielski(fn*)

As an indoctrinee to criminal law in the first semester of law school, I buried more than one naive assumption about the purpose and workings of criminal law. For instance, I learned that criminal law serves the important and broad societal purposes of retribution, rehabilitation, and deterrence. Yet, I can call to mind a bleached notion that criminal law should mainly serve the interests of crime victims. In the household of my youth, loud after-dinner discussions following the evening news focused not on the deterrence of future crime, the moral imperative of retribution, or the elusive promise of "correction." Rather, we were concerned that the justice system punish criminals for the sake of their victims. We believed that rape victims should not be deprived of "such balm as a conviction of their torturer supplies."(fn1) We felt that families of murder victims have a right to know that the person who took the life of a loved one will also be made to suffer.

Law students are taught doctrines of legal philosophy that neatly flank and dismember the common idea that criminal law should punish wrongdoers on behalf of their victims. First, vengeance is identified as a base moral purpose, ill-equipped to meet higher social objectives. For instance, acts of vengeance do not stoically deliver punishment as a moral obligation to the wrongdoer. Nor does vengeance acknowledge the sickness of the wrongdoer as a condition that society must cure.

Second, law students learn that, from a historical and practical viewpoint, a foremost purpose of criminal law is to serve the interest of the state in maintaining an ordered society and deterring future crime.(fn2) Victims' interests are relegated to civil actions.(fn3) The subordination of victims' interests in criminal law is most plainly illustrated by the broad prosecutorial discretion afforded the state in selecting cases to try.

Lastly, the victim's perspective is identified as one too narrow from which to punish all crimes. For example, where a murder victim is loved and remembered by no one, punishment of the murderer will only make sense if it is carried out in service of a legal philosophy that considers more than just the victim's rights. Similarly, when a four-year-old child is raped by her uncle, she may be too young to have developed a sense of vengeance, or even to understand on a conscious level the violation. But, the psychological scars of such a crime may play out in untold ways over her lifetime.

Law students may play a lonely role at family gatherings and dinner parties, ardently defending the higher moral purposes of criminal law to "normal people," who seem universally frustrated by a criminal justice system that appears to have forgotten the victim. While 37 percent of Americans polled believe crime is the most important problem facing this country today, only 15 percent express confidence in the criminal justice system.(fn4) Perhaps the point made by "normal people" should influence our system. A system that devalues the rights of the victim may fail to achieve justice in some cases and may diminish public confidence in the courts as instruments of justice.

Certainly, it is only by disregarding the "victim's rights" that one can begin to fathom the Washington Supreme Court's recent decision in State v. Jackson.(fn5) This decision reversed the conviction of a man who raped his four-year-old niece on Christmas Eve in 1979, causing her to contract gonorrhea.(fn6) Following his arraignment, Jackson fled and failed to appear at his trial.(fn7) After attempts to locate Jackson failed, a trial was held in absentia(fn8) and he was found guilty of rape, with sentencing suspended pending his return to custody.(fn9) Jackson evaded the law for nearly thirteen years.(fn10) Shortly after his eventual capture and incarceration, the Washington Supreme Court reversed his conviction.(fn11) The court did so not because Jackson was innocent or because his constitutional rights had been violated. Rather, the majority found that during Jackson's long evasion of authorities, the Washington Supreme Court had interpreted the state court rule pertaining to trials in absentia in such a manner that it dictated the reversal of Jackson's conviction.(fn12)

In State v. Hammond,(fn13) decided one year before Jackson, the Washington Supreme Court interpreted the state court rule pertaining to trials in absentia as prohibiting the commencement of a trial in the absence of a defendant. The Hammond court disregarded earlier appellate court decisions allowing the commencement of such trials in certain circumstances.(fn14)

The Jackson court applied Hammond's interpretation of the state court rule to Jackson, stating that procedural changes to criminal court rules apply retroactively to all cases not final when the rule is adopted.(fn15) The Washington Supreme Court reasoned it was duty-bound to retroactively apply Hammond's rule for trial in absentia and set Jackson free.(fn16) The reversal of Jackson's conviction is tantamount to an acquittal, given the practical impossibility of re-trying Jackson with presently available evidence.(fn17)

This Note will argue the woes of the Jackson decision, with minimal resort to the much disavowed notion of victims' rights. However, it is submitted that a visceral disagreement with this decision springs from the hollow echo of justice for the victim.

In arguing the infirmities of the Jackson decision, it is important to note that the Washington Supreme Court majority did not claim the decision to be a triumph of justice.(fn18) That position is untenable for all but Kenneth Jackson and his attorney. Nor did the majority opine that its ruling was consistent with the approved purposes of criminal law: deterrence of future crime, rehabilitation, and retribution for the criminal. Rather, the supreme court seems to have viewed Jackson's "acquittal" as a rare, unavoidable immunization of a particular defendant. Conservative legal rulings regarding two independent matters-trial in absentia and the retroactivity of new rules-converged, binding the court's hands in a mechanistic application of form over substance.

Notwithstanding the supreme court's assertion to the contrary, Jackson, although a rare case, was not an unavoidable decision. This Note questions the wisdom of the Jackson court's new interpretation of Washington's Criminal Rule (CrR) 3.4, which bars state courts from initiating trial in the absence of a criminal defendant, even when special circumstances are present.(fn19)

Section I provides a brief historical background of the right of the accused to be present at trial. Section II discusses the federal analysis of trials in absentia. Section III discusses Washington State's analysis of trials in absentia, focusing on the decisions in State v. Hammond and State v. Jackson. Section III also offers argument and analysis concerning the Hammond and Jackson decisions. It argues that, like the federal courts after the recent United States Supreme Court decision in Crosby v. United States,(fn20) Washington has created in criminal defendants a new "right of pre-trial flight." Section IV examines the possible motivations of the Washington Supreme Court in deciding Hammond and Jackson as it did. Section IV also explores an alternative solution to the absent defendant problem modeled after solutions found in other jurisdictions. Finally, this Note concludes that the Washington Supreme Court should reconsider the new "bright-line" absentia rule employed in Jackson.

I. Background

The United States Supreme Court has yet to address the issue of whether the Constitution prohibits commencing trial against a criminal defendant who absconds before trial. It is clear, however, that the right of a criminal defendant to be present at his or her own trial is among those protected by the Constitution and has roots as ancient as the Magna Carta.(fn21) The Fifth Amendment to the United States Constitution provides that "[n]o person shall. . . be deprived of life, liberty, or property, without due process of law."(fn22)

Historically, most important to the right of a criminal defendant to be present at trial has been the Confrontation Clause of the Sixth Amendment, which provides that the defendant in a criminal prosecution has the right to be confronted with the witnesses against him.(fn23) One of the most basic rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial.(fn24) Under the incorporation doctrine of the Fourteenth Amendment, the Confrontation Clause extends to defendants in state criminal actions.(fn25)

Similarly, the Washington State Constitution expressly protects the right of an individual to be present at all times during his criminal trial and to "meet the witnesses against him face to face."(fn26) The Washington Supreme Court has declined to interpret the state constitutional provision as conferring broader protection than its federal counterpart.(fn27)

Beyond the constitutional protections, the presence of the defendant at trial serves several important policy functions for the defendant and the judicial system: (1) it allows a defendant to communicate with...