Question: Are any of you having problems with judges denying motion for continuances based on the fact that a police officer witness (also in the military) is called to duty post 911? If so, how have you handled the situation? If not, do you have any suggestions on how to handle the situation?
Have you considered bringing this problem to the attention of he local media?
Yes we have considered the press. But...before we did that we wanted to see if anyone else was having the problem and if they had any luck solving it out of the press.
Thank you for your reply!
In our county we have Ft. Hood and often have to get active duty military people to court. Absent a real and immediate national emergency, the Army has always worked with us when we have to have one of their active duty troops for a criminal case. In the event of a true war situation/mission critical need, federal law would probably trump state law and there'd be nothing you can do to actually enforce a subpoena until the emergency ends, but the judge would be obligated to try or give you your continuance. There are USCA and miltary regulations governing the service of active duty types as jurors and their appearance in state courts.
Have you just tried to issue a subpoena for the absent police guy? I have brought witnesses back to Texas from their duty stations in Germany, Bosnia, Korea, Italy, etc and from all over the United States. The people in Austin that pay for witness travel for state's witnesses get excited sometimes at the cost of the airline tickets from and to Bosnia or Italy, but ... It is my experience that a military member's command will work with you as much as they can if it is a serious offense and the crook would potentially go free if you don't get your necessary witness.
If your officer is still in the U. S., get effective service of a subpoena even if you have to use the interstate compact ... It will help if he will cooperate in the service. Alert your officer to notify his chain of command of the service of the subpoena and what is required of him. Have him talk to a JAG officer where he is stationed if he needs legal advice on what he should do if the command has problems with him honoring the subpoena.
The military has always tried to work with us if we work with them. Naturally I would weigh the gravity of the case - is it a loud muffler case or a murder case? Dump the Class C's and think hard about other misdemeanors ... If you don't believe your officer's unit is responding well, talk to them and talk to the local JAG office. That usually settles things. If you really get run around, your local U. S. Congressman's Office could make an inquiry of the command that would be answered but .... that can put a confrontational point on it that is probably unnecesssary. The Congressman's Office will get you the statute or the regulation that your officer's military unit believes justifies them in denying the officer's appearance in your court.
If the judge refuses to enforce the right of the State to compulsory process after you get good service on the absent officer and refuses to continue the case, ... the State Judicial Commission? However, that is another route to trouble. Surely your judge would not want to join that battle. Another alternative, move to dismiss and in the motion to dismiss alert the defense of your intent to refile if your witness becomes available to testify before the statute of limitations runs and that he should take steps to preserve whatever witnesses or evidence or whatever he needs so that he won't be harmed by the delay. He'll claim harm anyway from the delay, but ... point and say it's his fault. Ask the defense if they'd like to stipulate to the officer's testimony and waive the right of confrontation, ... be helpful if they want a speedy trial. :-)
If you have multiple cases in which this officer is a necessary witness, see if you can bundle them up so just one trip back is necessary. The military will rightly get irritated if you plan on bringing him home every week for a different trial. That won't work.
Stephen, It is answers like yours which make this board so great. Many of us would not begin to know exactly how to deal with this type problem, while it may be routine to others. Thanks for taking the time to inform.
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