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A Strange Case: Process Trumps Presence

By on Oct 2, 2015 | 0 comments

In 2005, Terrance Irby was charged with murder in the death of an associate, James Rock. At his first trial in 2007 he was convicted of the murder. But the Washington Supreme Court reversed his conviction, saying there was a violation of his right to a public trial when attorneys had emailed with the judge about the composition of the jury. The Washington Supreme Court ordered a new trial for Mr. Irby. He got it, but then things got a little weird.

Mr. Irby first decided he didn’t want a lawyer representing him on the charges. He fired his first three attorneys and told the court he wanted to proceed while representing himself, known as proceeding pro se. (Author’s note: don’t do this). 

Then Mr. Irby determined he could not get a fair trial and decided not to be involved in the process at all. This didn’t just mean he sat there without saying anything; he determined he would not need to go to the courtroom at all. This is called a trial in absentia. While rare, if the defendant makes the choice to voluntarily absent themselves from the proceedings, it is permissible. (Author’s note: don’t do this either).

But this case was much stranger than just a trial in absentia. It was a pro se trial in absentia, which means the entire defense was literally an empty chair. No lawyer and no defendant to present evidence, cross-examine witnesses, or argue to a jury. That means a jury was empaneled, the prosecution put on their case with no opposition whatsoever, and then the jury rendered a verdict. Easy win right?

Well, yes and no. The jury did come back guilty. But the conviction was once again reversed.

 Here’s the deal. Every trial, every aspect of criminal justice, requires due process of law. The government gets the extraordinary power of locking citizens up, sometimes even taking their life away. In exchange for wielding that enormous power, they must follow the constitutional strictures of due process. Due process has a lot of components but as the name implies, it’s about a fair system. Everyone, regardless of the individual facts of the case, is entitled to be treated uniformly fairly.  

So what happened in this case? As I said, a jury was empaneled to render a final verdict. It’s obvious to everyone how the verdict is going to go, with a defendant who chose not to face the very serious charges, that everything the prosecution said went unchallenged. But still, due process demands that until the very end, a defendant receives a presumption of innocence, and the jury has to carry that presumption throughout the entire trial.

That didn’t happen here. A potential juror disclosed to the court and prosecutor she used to work for Child Protective Services, a government agency, and that she was inclined to believe the prosecution over the defense. She in fact she said that by simply being a criminal defendant, she believed he was guilty. That is a serious bias. Nonetheless she was seated on the jury. Unsurprisingly the jury came back guilty.

The Court of Appeals reversed the conviction because of the blatantly biased juror. The appellate court held that even absent an attorney or a defendant, a trial still required due process, and that was fundamentally violated here. No one gets a fair trial when the jury starts off believing the defendant is guilty. Mr. Irby will receive a new trial. Whether he participates more than the last one is anyone’s guess.

I know there are people who would say “He didn’t care enough to present a defense! What a waste of resources to make people go through this again!” And I think it’s a fair argument to make. But personally, I am happy that our system attempts to be so fair that even when the prosecution gets such a gift, they are still held to the standards of due process. Our system depends on everyone getting a fair shake.  Saying “due process except if this or except if that…” means we turn a constitutional guarantee into Swiss cheese. We need to do our best to make sure every conviction is based on evidence, because the consequences for a conviction can be so ruinous.

If you or someone you know is facing the very serious consequences associated with a conviction, feel free to give me a call.

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The facts and circumstances of your case may differ from the matters in which results and testimonials have been provided. Every case is different, and each client’s case must be evaluated and handled on its own merits.