Myrtle Beach Criminal Defense Attorney Bobby G. Frederick recently posted on his
Trial Theory Blog, concerning the issue of bench warrants being issued without adequate notice to the defendant or their attorney. Unfortunately for defendants outside of Horry County, this issue isn't just limited to any single part of the state.
I agree with Bobby that the current system whereby prosecutors ex parte contact the Court and obtain warrants has serious due process considerations. I've had clients receive bench warrants based on the following types of circumstances:
- The client appears for roll call, but then the prosecutor loses their signup sheet and then later requests a warrant
- The client was scheduled to appear in multiple courts at the same day\time and a single prosecutor refused to cooperate with his schedule although they were notified of the issue
- The client was in jail in another county
- The client had a reasonable mistake as to the date and time of their hearing
- The wrong date\time was put in the notice to the client by the Court
What we are talking about here is not a defendant who fails to show up for a scheduled trial, or who is out committing other crimes. Bench warrants are issued for missing 1st, 2nd, 3rd+ roll call "appearances", where a defendant is just simply supposed to report to the Courthouse on a certain day and time to check in. Usually there is no judge or Court proceeding going on related to the case. In larger counties hundreds of appearances may be scheduled for the same date and time.
The main complicating factor is that in almost all circumstances neither the defendant nor their attorney is notified about the issuance of the bench warrant. I understand the State's responsibility to seek issuance of a bench warrant when someone appears to be running, and not appearing in Court. However some reasonable safeguards should be put in place to avoid an injustice.
As it is now the defense attorney learns all too often about the issuance of the bench warrant only after a family member calls, usually weeks after the alleged missed appearance, reporting their loved one has been arrested. Then after several minutes\hours trying to determine what happened, in many cases the defense attorney is left to scramble to prepare a motion\order to vacate the bench warrant.
Bobby's post ends asking "What's the answer?" My suggestion is to do something similar to what would be done in civil or family court, require the prosecutor to seek a rule to show cause.
Under my proposal the prosecutor's office would prepare an affidavit that the defendant failed to appear in Court. This would be sent to the judge or the Clerk of Court's office for approval, and a date and time would be set for a hearing. If the defendant failed to appear again and/or could not establish a valid reason for his failure to appear the Court could then issue a bench warrant. Hearings could be scheduled quickly, and could even be presided over by a Magistrate \ Transfer Court judge.
One effect of my proposal is that the prosecutor may choose to spend 30 seconds on a quick e-mail to the defense attorney inquiring about the failure to appear, prior to spending 10-15 minutes on the paperwork required for the rule to show cause. The Court too is going to get frustrated with prosecutors bringing rules without consultation with the defense attorneys, and this is going to increase the amount of civility in the relationship between prosecutor and defense attorney. If a defendant has a good reason, it would be easier on everyone, and more in line with a fair judicial process, to simply allow the defendant to reschedule or make up his appearance.