Saturday, May 09, 2009

The facts behind the process of issuing a subpoena - or why it's all the city's fault

There seems to be quite a bit of confusion over officers not showing up in court and cases being dismissed as a result.

Here are some things people need to know about the process.

Quite some time ago, in order to help cut down on the overtime costs of police officers appearing in court, a new subpoena process was created for the Toledo Municipal Court and the Toledo Police Department to utilize. It was a 'paperless' system, in many ways, and worked quite well.

Of course, it assumes that the police officers needed to testify in court are actually still employed by the city and getting their notifications via the police department.

If a laid-off officer is needed for a court case, it is highly likely they would not get the notification of their subpoena through this process because they're no longer employed. That should have been evident to the prosecutors, who are responsible for issuing the subpoena, who then should have filed the proper paperwork with the Clerk of Court which would have resulted in a new subpoena be issued to the officer at their home address. This is the process for issuing a subpoena to any other citizen and the one that could have been followed for the laid-off officers who are now civilians.

Had a laid-off officer gotten such a subpoena and then failed to appear in court, the court could have, and should have, held them in contempt for failure to appear.

But if the laid-officer did not get such a subpoena and no longer had access to the internal system of notification within the TPD, that officer cannot be held accountable for a failure to appear.

Nor can a judge be held accountable for dismissing a case as a result of such non-appearance. Courts have time constraints to processing cases under federal and state laws, as well as the Rules of Superintendence which govern how Ohio courts operate. If a prosecutor finds himself without a key witness due to the lack of planning on behalf of the city that failed to address the inevitable notification issues, he can ask for a continuance. The first question a judge will ask in response to such a request is: "Until when?"

Of course, a prosecutor will not have an answer for that, so that leaves the prosecutor without a firm date for ensuring the witness's appearance and the defense attorney asking for a dismissal due to a lack of prosecution. A judge will then be faced with little or no ability to do anything but grant the motion for dismissal.

It is not the judge's fault for following the law, nor the defense attorney's fault for doing what is in the best interest of the client. It is, however, the fault of the prosecutor for not making sure that the proper subpoenas for their witnesses are issued.

And the prosecutors work for the city of Toledo, specifically, for the Law Director, then the Safety Director, then the Mayor.

In the end, it's the city's fault that cases are dismissed because officers did not appear. The prosecutors should just issue a regular subpoena and let the now-civilian witnesses show up like everyone else who gets a subpoena, but that would require some advanced planning and thinking about the consequences of decisions that have been made - something the city isn't very good at.

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