Courts must crack down on subpoena scofflaws to ensure equal justice

A subpoena isn't an invitation, it is a legal order designed to guarantee the appearance of an individual in court, or the production of records and other documents. It is an integral part of the criminal justice system. Yet, as a front page story in last Sunday's Vindicator revealed, far too many people in this area have no qualms about simply ignoring such orders.
And while it is true that the person who violates the law is to blame for undermining the proper administration of justice, a judge who turns a blind eye to such an abuse of the system must also be called to account.
The ignoring of a subpoena can have serious consequences, as a recent case in Campbell illustrates.
In the Sunday story, Prosecutor Brian J. Macala was reported as saying that in the eight years he has been on the job in Campbell, not one person has been held in contempt of court for failing to honor a subpoena.
It's not uncommon for witnesses to not appear in court, Macala said.
Then he added this troubling observation: If one person is held in contempt, they should all be held in contempt. To which we ask, why isn't that standard operating procedure?
That question is especially pertinent when viewed alongside the case of Robert T. Dolan, president of the Campbell Board of Education.
In early May, Dolan, 45, of Blossom Avenue, was charged with driving under the influence and driving left of center. He was stopped by police, who said they spotted his blue pickup truck going left of center, almost striking a police car, weaving and traveling left of center four times and then turning onto Blossom.
Police said Dolan's blood alcohol was measured at 0.224, nearly triple the reading at which a driver is presumed intoxicated under state law.
The school board president was released on a $2,500 bond. He was arraigned shortly thereafter, and his trial was set for Sept. 14.
No show
But on the day of trial, the charges against Dolan were dismissed because the police officer who originally arrested him, Thomas McCutcheon, failed to appear to testify -- even though he had been sent a subpoena ordering him to be present. By then, however, McCutcheon was no longer with the police department.
Dolan's lawyer asked for a dismissal of the charges against his client because of the former police officer's absence.
Judge John P. Almasy agreed and explained that police officers must have probable cause to make an arrest and, therefore, must testify to that in court.
The judge also said it is common for a lawyer representing an individual charged with driving under the influence to make a motion for dismissal because of the lack of proof of probable cause.
While residents are left to wonder whether Dolan received special treatment because of his standing in the community, Macala's observation that it is not unusual for witnesses to ignore subpoenas is at the heart of the problem. So long as individuals know they can get away with thumbing their noses at the city's court, they'll do it.
Indeed, the issuance of subpoenas in and of themselves are an admission that the courts cannot depend on witnesses appearing out of a sense of a civic responsibility.
So what can a court do to avoid the kind of outcome that occurred in Dolan's case?
The judge has the power to order a continuance until a witnesses can be brought to court. Or, Judge Almasy could adopt the rule that is now in force in Judge Elizabeth Kobly's court in Youngstown.
Jail time
Every witness who ignores a subpoena is held in contempt by the Youngstown municipal judge. And if the offense is serious enough, she also levies a fine and may even sentence the offender to jail.
More significantly, police officers are held to the same standard as other witnesses.
And the result of this judicial hardball? There isn't a problem in Judge Kobly's court with witnesses not appearing for hearings. Interestingly, in the four years she has been on the bench, a police officer failed to appear without being excused only once. He certainly found out how serious the judge is about subpoenas being honored.
Judge Kobly issued a warrant for the officer's arrest, and when he showed up she fined him $60. The case was reset and the officer now has a perfect attendance record.
By contrast, Warren Municipal Court Judge Thomas P. Gysegem issues warrants only for witnesses properly served subpoenas by the bailiff.
Judge Gysegem automatically dismisses cases when witnesses fail to appear, or when witnesses cannot be served.
As for police officers, they are never personally served in Warren, and, therefore, are not held in contempt. The result is that the Warren Municipal Court sometimes has problems getting officers to appear.
That's unacceptable.
Police officers are sworn to uphold the law and must not be given a pass when they violate it. Chiefs of police have a responsibility to ensure that the men and women clearly understand that court proceedings are part of law enforcement. It does no good to make arrests and then to have the accused walk because of a technicality.
Absent a legitimate reason for witnesses not honoring subpoenas, judges must be willing to throw the book at the scofflaws.
Given that the courts in the region aren't in lock-step on this issue, perhaps some guidance from the Ohio Supreme Court might be in order.