No Second Chance to Man Tried Without Notice

     (CN) – Justice Sonia Sotomayor blasted her Supreme Court colleagues Monday for rejecting the appeal of a man who did not know he was on trial in South Carolina before the court convicted him.



     “A trial conducted without actual notice to a defendant and in his absence makes a mockery of fair process and the constitutional right to be present at trial,” Sotomayor wrote. “That is particularly true where, as here, the defendant participated actively in his defense and kept the state informed of his whereabouts.”
     After 30 minutes of deliberation in 2004, a jury convicted William Fairey of obtaining goods and moneys under false pretenses.
     Fairey had not appeared at the South Carolina trial to defend himself, but he had a good reason for his absence.
     South Carolina never notified him of the trial date. Even though Fairey had routinely notified the trial court of his changes of address, and received mail from the court at his home in Florida, prosecutors sent subpoenas to Fairey at two outdated addresses.
     Fairey moved for a new trial after authorities apprehended him to begin an eight-year sentence.
     The state courts rejected Fairey’s claims that the trial had violated his rights under the Sixth and 14th Amendments, finding that Fairey had waived his right to appear. They said the state had properly relied on Fairey’s permanent address stated on the record.
     While awaiting trial in 1998, Fairey had also been warned in writing that the trial would proceed if he did not attend.
     Fairey sought relief from the U.S. Supreme Court after a federal judge and 4th Circuit rejected his plea.
     But Sotomayor said the decisions against Fairey failed to heed Supreme Court precedent adopted in Crosby v. United States, which held “the defendant’s initial presence serves to assure that any waiver [of the right to be present] is indeed knowing.”
     Crosby recognized two instances in which a defendant could waive his right to appear. A defendant can either voluntarily waive his right after the trial starts, or he can forfeit this right when his behavior makes it impossible for a trial to proceed with him in the courtroom.
     “This case, of course, does not fall within either exception,” Sotomayor wrote. “Rather, the state court conceived an additional exception, one never recognized by this Court: waiver on the basis of a defendant’s actions prior to the start of trial.”
     Given the requirement under Crosby that defendants know about such waivers, the justice said Fairey’s case did not “remotely demonstrate such a waiver.”
     Prior to his conviction, Fairey had actively represented himself before the trial court for several years. He returned to South Carolina for hearings and routinely notified the court of his changes in address, according to the six-page opinion.
     Sotomayor said his failure to appear at trial was inadvertent.
     “Consequently, his absence does not demonstrate the intent necessary to establish waiver under our established case law,” she wrote.

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