EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, November 4, 2008

Compulsion: Court Finds Failure To Execute Body Attachment Violated Defendant's Rights Under The Compulsory Process Clause

The Sixth Amendment states that:

     "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

Of course there is manifold precedent concerning the right to a speedy trial, the right to an impartial jury, the right to confront witnesses, and the right to assistance of counsel.  But what about the right to compulsory process?  Well, for almost two centuries, it was thought that the Compulsory Process Clause merely afforded criminal defendants mechanical rights such as the right to (1) subpoena witnesses, (2) obtain writs of attachment or bench warrants, and (3) obtain continuances if witness failed to appear.  Then, starting with Washington v. Texas, 388 U.S. 14 (1967), the Supreme Court began reading more protections into the Clause, which it now reads as "guarantee[ing] criminal defendants 'a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683 (1987).

Most of the interesting case law on the Compulsory Process Clause involves this right to present a defense, but the recent opinion of the Court of Appeal of California in People v. Mitchell, 2008 WL 4694970 (Cal.App. 2 Dist. 2008), actually involves the mechanical rights it contains.  In MitchellLong Beach Police Officer Yun Kim detained Elwood Mitchell because he allegedly saw him throw a cigarette on the ground. After Mitchell admitted that he was on parole, Kim patted him down and found three rocks of what appeared to be cocaine base and a charred glass pipe that could be used to smoke rock cocaine.

Mitchell was charged with cocaine possession and thereafter moved to suppress the evidence on the ground that Kim illegally detained him. At the hearing on the motion, Kim testified that he stopped Jeffrey Towner for jaywalking and that, during Towner's detention, he saw Mitchell, who was walking with a woman, throw a lit cigarette on the ground.  Kim then detained Mitchell, asked him if he was on probation or parole, and Mitchell admitted he was on parole. After verifying that Mitchell was on parole and subject to a search condition, he patted Mitchell down and discovered the cocaine base and pipe

Meanwhile, Jeffrey Towner testified that he saw his girlfriend and was crossing the street to meet her when a police officer stopped him for jaywalking. Towner did not recall whether Mitchell had a cigarette and did not see him drop one. Additionally, Angela Dean testified that Mitchell was her "common law husband" of more than 17 years and that she had never seen him smoke or possess cigarettes.

Finally, Mitchell informed the court that he had subpoenaed Maria Jones to testify at the suppression hearing, but she was not present. The court found that Mitchell's subpoena was "in order" and offered to issue a body attachment for her. Defense counsel asked to wait a few days, and the court continued the suppression hearing. The court apparently then issued the attachment.  It appears that, however, the Long Beach Sheriff's Department never executed the body attachment, and a judge informed the department that it did not need to appear at subsequent hearings in Mitchell's case to explain its behavior.

At one of these hearings, however, the judge asked Mitchell for an offer of proof regarding Maria Jones' proposed testimony, and defense counsel replied, inter alia,

     "I expect her to say that she was walking to the particular liquor store the same night that my client was arrested. She was going to meet her boyfriend after walking to the liquor store on the same corner on Pacific Coast Highway.... [S]he's going to say that she was waking [ sic ] in the same direction on the same street as Mr. Mitchell, that he was not smoking a cigarette, and he did not litter a cigarette, and the police came up and immediately detained him. Since littering a cigarette is the probable cause in this case, her testimony very well may be material .  Now, to be completely candid with this court, Mr. [Towner] and Miss Jones ... have never been cooperative with the defense.... And Miss Jones first told the defense investigator that they didn't remember the incident at all. However, we subpoenaed them anyway because we knew they were present and we thought they were being uncooperative."

The judge, however, concluded, "What you've told the court so far is she's not a material witness because from what I understand, you're saying she is indicating she doesn't remember the incident." Mitchell then testified similarly, but the judge did not believe Mitchell and denied his motion to suppress, leading to his conviction.

On his appeal, however, the Court of Appeals of California reversed, finding that Mitchell's rights under California's counterpart to the Compulsory Process Clause, were violated by the failure to execute the body attachment.  The court then found that this error was not harmless and that Jones was "material" because

     "While neither [Mitchell] nor anyone else could guarantee how Jones would testify if compelled to appear in court and put under oath, [Mitchell]'s offer of proof and testimony established at least a reasonable possibility that Jones could have given material and favorable testimony."

Mitchell seems to fall right into the Compulsory Process Clause' wheelhouse, and I thus agree with the court's opinion.



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