Friday, September 14, 2001
Some years ago, Mahoning County Common Pleas Judge Elwyn V. Jenkins looked down at the man he was about to sentence on a murder conviction and declared, "You, sir, are lower than a rat. My apologies to the rat."
It does a body good to occasionally hear a judge express old fashioned, righteous indignation.
This week, Judge R. Scott Krichbaum did the job quite nicely, if not as colorfully as the late Judge Jenkins. It should be noted that Krichbaum was addressing not a murderer, but a witness to a killing who, when called upon to do his duty, shirked.
Brian McGauley, 19, was one of three people subpoenaed in July to testify as eyewitnesses during the trial of a 19-year-old Gypsy Lane man accused of shooting of Bert King, also 19, last October.
None of the three witnesses showed up for the trial, which was postponed for seven weeks. One was eventually found and testified during the trial, which resulted in the acquittal of the defendant. McGauley was taken into custody after the trial. The third witness is still free, but faces arrest.
Court time: This week McGauley had his day in court -- two days actually.
Tuesday, Krichbaum held a hearing and ruled there was reason to believe that McGauley knew about his subpoena and deliberately ignored it. The judge said that before he sentenced McGauley, he intended to put him on the stand and have him testify as he would have had to at the trial.
McGauley's lawyers howled in protest. If the judge were going to punish McGauley on the basis of how important his testimony might have been to the trial, then forcing him to testify might violate his constitutional right against self incrimination.
Judge Krichbaum wisely removed that impediment Thursday. He brought McGauley back into his courtroom and sentenced him to 30 days in jail for failing to answer the summons. After the 30 days is up, McGauley will still be required to testify.
Reminiscent of Judge Jenkins, Krichbaum told McGauley, "You, sir, are a coward. You allowed justice to escape because you aren't man enough to come to court and tell a jury what happened. Truly, I have nothing but contempt for you."
McGauley's lawyers may claim that his testimony is moot, now that the trial is over. But it is never too late to arrive at the truth. The truth is always relevant.