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Old 2nd May 2012, 01:04 PM   #1
Bob001
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Conviction in absentia?

Can a person in the United States be convicted of a crime in absentia? The Constitution guarantees a defendant the right to confront his accusers and defend himself, but if he chooses not to avail himself of his right -- by going into hiding, leaving the country etc. -- can a court conduct a trial and reach a guilty verdict? Presuming that the court appointed a defense attorney, would such a verdict stand up on appeal? I was wondering about this in particular regarding some of the people identified by name as terrorists around the world, but I wonder whether the principle could be applied more broadly, say, to the FBI's top 10 most wanted criminals, etc.?

(Also, hey mods, how 'bout a separate discussion category for law and legal procedure? "Social Issues and Current Events" is a little broad, and "US Politics" doesn't cut it either.)
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Old 2nd May 2012, 01:08 PM   #2
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Yes, but it is supposed to have safeguards built in,

Much easier and prone to abuse to get a judgement (lawsuit) in absentia.
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Old 2nd May 2012, 04:02 PM   #3
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I suppose having a lawyer present is "legal representation" and he does the confronting too.
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Old 2nd May 2012, 04:59 PM   #4
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That murderer who invented Earth Day then killed his girlfriend and fled to France, IIRC, was convicted in absentia, but then it was reversed as part of an attempt to get him extradited.
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Old 2nd May 2012, 05:04 PM   #5
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Originally Posted by Beerina View Post
That murderer who invented Earth Day then killed his girlfriend and fled to France, IIRC, was convicted in absentia, but then it was reversed as part of an attempt to get him extradited.
Ira Einhorn didn't invent Earth Day.
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Old 2nd May 2012, 05:12 PM   #6
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Funny how many people think he did.

That was the first case that came to my mind, although Wiki says there are others.

http://en.wikipedia.org/wiki/In_absentia#Examples
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Old 2nd May 2012, 06:32 PM   #7
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Roman Polanski requested in 2010 an in absentia sentencing for his 1977 statutory rape case - for which a plea agreement was entered but sentencing was still open - but the judge denied that.
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Old 3rd May 2012, 05:56 AM   #8
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Drew&Mike show in Detroit called him in France on a prank, got him to talk about his involvement in creating Earth Day, then started hassling him about the murder.

So...reports about him not being involved are greatly exaggerated. Unless he, himself, is the exaggerator.
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Old 3rd May 2012, 05:42 PM   #9
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I think it is pointless to try a person without knowing where they or their assets are. After all you need to find them to lock them up. The worst you could do is get the assets.
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Old 3rd May 2012, 08:29 PM   #10
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Originally Posted by Beerina View Post
So...reports about him not being involved are greatly exaggerated. Unless he, himself, is the exaggerator.

Given that he was accused of murder and fled the country in an attempt to avoid prosecution, you don't think the latter might be the more likely?
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Old 3rd May 2012, 09:26 PM   #11
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Originally Posted by crimresearch View Post
Yes, but it is supposed to have safeguards built in,

Much easier and prone to abuse to get a judgement (lawsuit) in absentia.
Can you give a citation for this? I would have thought the answer was no-- seems like a violation of due process and the right to trial. If you have some authority to the contrary, I'd be interested in seeing it.

ETA: Reading the excerpt from Crosby in the Wikipedia article linked to above, it seems as if it depends on how one defines "in absentia." If the defendant is present for the beginning of trial and then absents himself from subsequent proceedings, the trial can apparently proceed. However, if I'm reading this correctly, it sounds like the trial cannot commence without the defendant being present, which is what I would have understood "in absentia" to mean.
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Old 3rd May 2012, 10:22 PM   #12
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Originally Posted by Beerina View Post
That murderer who invented Earth Day then killed his girlfriend and fled to France, IIRC, was convicted in absentia, but then it was reversed as part of an attempt to get him extradited.
WTF???

John McConnell (peace activist)
Quote:
John McConnell (born March 22, 1915), the founder and creator of Earth Day, a luminary with a major passion for peace, religion, and science throughout his life. He has made huge strides to relieve human suffering and promote the common good.[1] His interests include answering many of the critical problems that face humanity today.
Are you thinking of this guy? Roman Polanski

(ETA: Oh crap -- I didn't see ddt's post.)
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Old 4th May 2012, 06:13 AM   #13
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In almost every case in the US where you hear of someone being convicted in absentia it is only in absentia because the defendant waived their right to be present, either explicitly or implicitly.

For instance, a defendant can say "I do not want to be there at my trial. I waive that right." In some states the Judge is likely to require the person to sit in the courtroom, while in others the judge will inquire of the defendant to make sure that they understand what rights they are giving up, and then let them avoid the trial. Most of the time the judge will bring the defendant back at the start of the trial for each day and make sure that they have not changed their mind. That would be an explicit waiver.

And implicit waiver of the right to attend the trial would be where the defendant absconds after the trial has commenced. Once the trial starts, the defendant does not have the right to disrupt the proceedings by going on the run. If that happens, the judge will almost always keep the trial going. And the media will report the person, if they are convicted, was convicted in absentia.
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Old 4th May 2012, 06:35 AM   #14
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Originally Posted by JamesDillon View Post
Can you give a citation for this? I would have thought the answer was no-- seems like a violation of due process and the right to trial. If you have some authority to the contrary, I'd be interested in seeing it.

ETA: Reading the excerpt from Crosby in the Wikipedia article linked to above, it seems as if it depends on how one defines "in absentia." If the defendant is present for the beginning of trial and then absents himself from subsequent proceedings, the trial can apparently proceed. However, if I'm reading this correctly, it sounds like the trial cannot commence without the defendant being present, which is what I would have understood "in absentia" to mean.
Rights can be waived.
For example, a defendant who files a dozen continuances, hasn't been denied a speedy trial. A defendant who insists on defending themselves hasn't been denied the right to counsel.
And a defendant who deliberately refuses to participate in their own trial hasn't been denied the right to confront their accusers.

http://supreme.justia.com/cases/federal/us/397/337/

http://www.law.cornell.edu/uscode/ht..._combined.html

http://posttrib.suntimes.com/news/cr...-marshals.html

http://www.timesunion.com/local/arti...od-3393297.php

http://www.timesonline.com/news/drug...f25c8fcfc.html

http://www.gaffneyledger.com/news/20..._absentia.html

http://azstarnet.com/news/local/crim...d3e38c2b7.html
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Old 4th May 2012, 06:40 AM   #15
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Originally Posted by Beerina View Post
Drew&Mike show in Detroit called him in France on a prank, got him to talk about his involvement in creating Earth Day, then started hassling him about the murder.

So...reports about him not being involved are greatly exaggerated. Unless he, himself, is the exaggerator.
He is the exaggerator. The actual founders of earth day are quite adamant that he had no involvement:

http://www.amgot.org/einhorn/eday.htm

"Much to our dismay, we now find that the self-styled hippie guru and alleged murderer of Holly Maddux, Ira Einhorn, has been taking credit for initiating and/or organizing Earth Day. He is not telling the truth. A group of very dedicated young people worked very hard to organize Earth Day, but Einhorn was not one of them. In fact, Einhorn was asked to leave several meetings of the organizing committee which he attempted to disrupt. He was not welcome there, nor did he contribute in any material way to the committee’s activities. Einhorn, given a small role on the stage at Earth Day, grabbed the microphone and refused to give up the podium for thirty minutes, thinking he would get some free television publicity. We just waited until he had completed his "act" and then got on to the serious business at hand, the keynote speech of U.S. Senator Edmund Muskie, author of the landmark U.S. Clean Air Act of 1970.

Again, Ira Einhorn’s claims that he was a founder or organizer of Earth Day are false. He is a fraud. His lies do a real disservice to those of us who were and are deeply concerned about our planet’s environmental problems and who have worked hard to solve them."
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Old 6th May 2012, 04:10 AM   #16
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Originally Posted by crimresearch View Post
Rights can be waived.
For example, a defendant who files a dozen continuances, hasn't been denied a speedy trial. A defendant who insists on defending themselves hasn't been denied the right to counsel.
And a defendant who deliberately refuses to participate in their own trial hasn't been denied the right to confront their accusers.

http://supreme.justia.com/cases/federal/us/397/337/

http://www.law.cornell.edu/uscode/ht..._combined.html

http://posttrib.suntimes.com/news/cr...-marshals.html

http://www.timesunion.com/local/arti...od-3393297.php

http://www.timesonline.com/news/drug...f25c8fcfc.html

http://www.gaffneyledger.com/news/20..._absentia.html

http://azstarnet.com/news/local/crim...d3e38c2b7.html
Is it the case that a defendant must be present at the commencement of trial, but can be convicted in absentia if he thereafter absents himself? That seems to be implied by the statute, the Crosby case, and Illinois v. Allen. At least one of the articles you cite (Ikard) seems consistent with that; others are unclear, though a couple of the articles (Gaffney and LaMadrid, in particular) seem to suggest that the defendant was absent when the trial commenced.
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Old 6th May 2012, 07:29 AM   #17
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In civil cases, debt collectors assure the court that they've 'tried' to contact the person, and the court can issue a judgement without the person ever knowing there was an opportunity to contest the claim.

But in criminal cases, the general idea (one of the safeguards I mentioned) is that the accused has to know they are facing trial, and deliberately choose to let it go on without them.
Clearly if they are there at the beginning of the trial, they knew about it. Less clear if they are arraigned and out on bail, but apparently some place accept that (unless it is a capital case).
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Old 7th May 2012, 01:36 AM   #18
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Originally Posted by Bob001 View Post
Can a person in the United States be convicted of a crime in absentia?
I can't see why anybody would want this. If the person in question is not in custody then the conviction is moot and if he is in custody then the conviction would almost certainly be appealed on constitutional grounds.

I don't think that a conviction in absentia would achieve anything that an international arrest warrant wouldn't.
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Old 7th May 2012, 01:39 PM   #19
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Originally Posted by psionl0 View Post
I can't see why anybody would want this. If the person in question is not in custody then the conviction is moot and if he is in custody then the conviction would almost certainly be appealed on constitutional grounds.

I don't think that a conviction in absentia would achieve anything that an international arrest warrant wouldn't.
It allows witness testimony to be examined at the time, instead of 20, 30, or more years later... if and when a fugitive defendant is recovered.

And the Supreme Court has done a thorough job of explaining the constitutionality of a defendant electing to waive their rights to participate in a trial.
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Old 7th May 2012, 02:22 PM   #20
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Originally Posted by psionl0 View Post
I can't see why anybody would want this. If the person in question is not in custody then the conviction is moot and if he is in custody then the conviction would almost certainly be appealed on constitutional grounds.

I don't think that a conviction in absentia would achieve anything that an international arrest warrant wouldn't.
A conviction could certainly help in getting the person extradited. IIRC, Switzerland didn't extradite Polanski to the US because, a.o., they weren't convinced he would be sentenced to more than 6 months (which is the lower bound in the extradition treaty).

Originally Posted by crimresearch View Post
It allows witness testimony to be examined at the time, instead of 20, 30, or more years later... if and when a fugitive defendant is recovered.
To expand on that: 20 or 30 years down the line, those witnesses might even not be alive anymore.
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Old 7th May 2012, 05:29 PM   #21
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I believe it also stops the clock on a statute of limitations.
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Old 7th May 2012, 07:33 PM   #22
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Originally Posted by Jarlaxle View Post
I believe it also stops the clock on a statute of limitations.
It does. The statute of limitations applies to the time limit for bringing charges. Once a defendant is charged, he has a 6th Amendment right to a speedy trial, so any post-charging delays in prosecution would be analyzed under the test for speedy trial violations.

Back on topic, though, the right to be present is not absolute. For example, in Illinois v. Allen, 397 U.S. 337 (1970), the defendant was disruptive in court and was removed by the judge for part of the trial (he later agreed to behave and was allowed back for the rest of the trial). The Supreme Court held that the trial judge had discretion to remove the unruly defendant and continue the trial in the defendant's absence.

While that is not quite the same as a situation where a defendant flees the jurisdiction after proceedings against him have commenced, it does clearly establish that a defendant can, by his actions, justify the trial judge in exercising discretion to proceed without the defendant. However, in the case of a fugitive defendant, it would probably be an abuse of discretion to proceed without the defendant until all reasonable efforts have been made to bring the defendant before the court. If, for example, they learn that the defendant has fled and is beyond the reach of the court, then it would be permissible to presume that he has waived his right to be present, and to proceed without him. Even then, it would probably only be done after efforts to extradite are unsuccessful.
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Old 7th May 2012, 07:52 PM   #23
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Originally Posted by Freddy View Post
It does. The statute of limitations applies to the time limit for bringing charges. Once a defendant is charged, he has a 6th Amendment right to a speedy trial, so any post-charging delays in prosecution would be analyzed under the test for speedy trial violations.

Back on topic, though, the right to be present is not absolute. For example, in Illinois v. Allen, 397 U.S. 337 (1970), the defendant was disruptive in court and was removed by the judge for part of the trial (he later agreed to behave and was allowed back for the rest of the trial). The Supreme Court held that the trial judge had discretion to remove the unruly defendant and continue the trial in the defendant's absence.

While that is not quite the same as a situation where a defendant flees the jurisdiction after proceedings against him have commenced, it does clearly establish that a defendant can, by his actions, justify the trial judge in exercising discretion to proceed without the defendant. However, in the case of a fugitive defendant, it would probably be an abuse of discretion to proceed without the defendant until all reasonable efforts have been made to bring the defendant before the court. If, for example, they learn that the defendant has fled and is beyond the reach of the court, then it would be permissible to presume that he has waived his right to be present, and to proceed without him. Even then, it would probably only be done after efforts to extradite are unsuccessful.
http://forums.randi.org/showthread.p...92#post8256592
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Old 7th May 2012, 07:58 PM   #24
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Originally Posted by JamesDillon View Post
Is it the case that a defendant must be present at the commencement of trial, but can be convicted in absentia if he thereafter absents himself? That seems to be implied by the statute, the Crosby case, and Illinois v. Allen. At least one of the articles you cite (Ikard) seems consistent with that; others are unclear, though a couple of the articles (Gaffney and LaMadrid, in particular) seem to suggest that the defendant was absent when the trial commenced.
I would agree that actual notice is required before the defendant can be presumed to have waived any of his rights, including the right to be present at trial. Waiver of any trial right must be knowing and voluntary in order to be valid. However, I don't think that requires having been present at an earlier hearing. It just requires a showing that the defendant was aware of the proceedings against him and chose not to appear. If he could later show that it was impossible for him to appear for some reason (like being incarcerated somewhere else, unbeknownst to the prosecution), then that would be grounds to vacate the conviction in absentia, since his "waiver" of his right to be present would not have been voluntary. But if he just decided to flee, I don't see why that should result in a windfall to him.
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Old 7th May 2012, 08:00 PM   #25
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Originally Posted by crimresearch View Post
Yeah, I know you said it first. Not everyone reads the links, though, so I assert a defense of less than complete redundancy.

I was actually going to expand on your point about civil vs. criminal, but I decided it was off topic.
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Old 7th May 2012, 08:54 PM   #26
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Originally Posted by crimresearch View Post
It allows witness testimony to be examined at the time, instead of 20, 30, or more years later... if and when a fugitive defendant is recovered.
Originally Posted by ddt View Post
A conviction could certainly help in getting the person extradited. IIRC, Switzerland didn't extradite Polanski to the US because, a.o., they weren't convinced he would be sentenced to more than 6 months (which is the lower bound in the extradition treaty).
Originally Posted by Jarlaxle View Post
I believe it also stops the clock on a statute of limitations.
We should convict people in absentia on the grounds of expediency? That just cuts right through the bill of rights.

Originally Posted by crimresearch View Post
And the Supreme Court has done a thorough job of explaining the constitutionality of a defendant electing to waive their rights to participate in a trial.
Giving somebody the opportunity to waive participation rights is not the same as conducting a trial without their knowledge.
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Old 7th May 2012, 09:07 PM   #27
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Conducting a trial without their knowledge isn't what is being discussed. What is being discussed is conducting a trial with their presence.
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Old 7th May 2012, 09:21 PM   #28
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Originally Posted by tyr_13 View Post
Conducting a trial without their knowledge isn't what is being discussed. What is being discussed is conducting a trial with their presence.
The people that I quoted certainly aren't discussing that. They are advocating trying and convicting an alleged criminal before he has been captured.
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Old 7th May 2012, 09:21 PM   #29
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Originally Posted by psionl0 View Post
We should convict people in absentia on the grounds of expediency? That just cuts right through the bill of rights.

Giving somebody the opportunity to waive participation rights is not the same as conducting a trial without their knowledge.
Still playing your usual strawman games of simply making up crap that I never said?
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Old 7th May 2012, 09:27 PM   #30
tyr_13
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Originally Posted by psionl0 View Post
The people that I quoted certainly aren't discussing that. They are advocating trying and convicting an alleged criminal before he has been captured.
Yes they are discussing that, you're just pretending that they are not or missing that fact. They are advocating it under special circumstances that would of course included the alleged criminal reasonably knowing they are wanted.
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Old 7th May 2012, 10:20 PM   #31
psionl0
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Originally Posted by crimresearch View Post
Still playing your usual strawman games of simply making up crap that I never said?

What are you on about? I quoted you directly:
Originally Posted by crimresearch View Post
It allows witness testimony to be examined at the time, instead of 20, 30, or more years later... if and when a fugitive defendant is recovered.
or, to put it another way:
Originally Posted by tyr_13 View Post
Yes they are discussing that, you're just pretending that they are not or missing that fact. They are advocating it under special circumstances that would of course included the alleged criminal reasonably knowing they are wanted.
These sound like expediency arguments to me.
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Old 7th May 2012, 10:54 PM   #32
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Originally Posted by psionl0 View Post
What are you on about? I quoted you directly:

or, to put it another way:
These sound like expediency arguments to me.
You made an assertion that a trial in absentia would not accomplish anything that waiting for an international warrant would not... and you were given an example of something that might be accomplished. You then dishonestly tried to pretend that was something other than what it was.

The Supreme Court never *advocated* such procedures based on 'expediency' or 'cutting across' the bill of rights, and neither did I.
They said that under very specific circumstances, a defendant knowingly refusing to participate (whether by running away, or by disrupting the courtroom), put themselves in the same situation as refusing to enter a plea, in that the trial might go on under special conditions.

But don't let that stop you from spinning as much straw about being tried 'without their knowledge', and so forth as you always do when people are having a rational and factual discussion about reality.
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Old 8th May 2012, 03:04 AM   #33
psionl0
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Originally Posted by crimresearch View Post
You made an assertion that a trial in absentia would not accomplish anything that waiting for an international warrant would not...
... because I believe that a conviction in absentia might be considered moot or unsafe (assuming that the bill of rights applies).

Originally Posted by crimresearch View Post
and you were given an example of something that might be accomplished.
You said, "It allows witness testimony to be examined at the time, instead of 20, 30, or more years later... if and when a fugitive defendant is recovered.

Originally Posted by crimresearch View Post
You then dishonestly tried to pretend that was something other than what it was.
I said that was an argument based on expediency. Just because you think it is something else doesn't mean I am being dishonest.

Originally Posted by crimresearch View Post
The Supreme Court never *advocated* such procedures based on 'expediency' or 'cutting across' the bill of rights, and neither did I.
They said that under very specific circumstances, a defendant knowingly refusing to participate (whether by running away, or by disrupting the courtroom), put themselves in the same situation as refusing to enter a plea, in that the trial might go on under special conditions.
You advocate trying someone before they have been captured so the evidence won't be stale "... if and when a fugitive defendant is recovered". Now you state something very different and call me dishonest?

Originally Posted by crimresearch View Post
But don't let that stop you from spinning as much straw about being tried 'without their knowledge', and so forth as you always do when people are having a rational and factual discussion about reality.
You're the only one here with a spinning wheel.
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