How It Really Works

Rule 9.1 of the Arizona Rules of Criminal Procedure seems pretty simple. It covers a defendant’s waiver of the right to be present in court and provides as follows:

[A] defendant may waive the right to be present at any proceeding by voluntarily absenting himself or herself from it. The court may infer that an absence is voluntary if the defendant had personal notice of the time of the proceeding, the right to be present at it, and a warning that the proceeding would go forward in his or her absence should he or she fail to appear.

Reading it like a reasonable person capable of understanding the English language and with even the slightest faculty when it comes to basic logic, the rule pretty obviously allows a court to infer waiver if certain conditions are met. The court doesn’t have to do it, even if all of the elements are satisfied, but it can. It’s permissive. The court “may” infer a voluntary absence “if” there is personal notice of the hearing and the right to be present as well as a specific warning about things going forward regardless. Any rational reader should be able to see that. Any rational reader should also realize it necessarily follows that, without the things on the other side of the “if,” a court may not make the permissive inference.

As always, leave it to the Arizona courts to mess up the simplest things when they help a defendant or two now and again.

In State ex rel. Romley v. Superior Court, the state conceded a lack of evidence that the defendant had personal knowledge of the trial date. One trial judge was going to let the state proceed with trial, but another apparently read the rule. His ruling:

I think the requirements of Rule 9.1 [and a case explaining the rule] require that all three elements be evident.

After the state was suddenly not allowed to go ahead with trial absent the first factor in Rule 9.1, it filed a special action, Arizona’s emergency appeal of sorts. Unlike with the special actions I file, which the court of appeals seems to decline to hear altogether pretty much the moment the filing fee leaves my bank account, the state’s saviors at the court of appeals did their thing and made some magic happen.

First, they looked at cases where other courts inferred voluntary absence and affirmed trial in absentia in the presence of all three factors. Being the logic-ninjas they are, the court explained how “none of the above-cited cases, however, held that, as a matter of law, the absence of any of the three factors in Rule 9.1 would prevent an inference of voluntary absence to support a trial in absentia.” They then looked at a couple of federal cases and an older case of their own before concluding as follows:

[I]t was within [the first judge]’s discretion to find that defendant had voluntarily absented himself within the meaning of Rule 9.1 to effectively waive his right to be present at trial, thus warranting his trial in absentia.

Voila! There’s a rule that says, “if A, B, and C, then the court may infer D and proceed with trial.” However, the court of appeals decided that, even though A is definitely not present, if D is pretty clearly the case anyway, just forget about the stupid rule and go ahead with trial.

Although this may not be the most exciting rule or the most exciting case, it showcases the way the system really works most of the time. Did the defendant do something wrong? If so, the defendant must lose. As the court in State ex rel. Romley v. Superior Court explained, the United States Supreme Court has observed:

Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong.

If you also begin with the assumption that every defendant is guilty, that tells you pretty much everything you need to know about the criminal justice system.