Compulsory Process Is Optional?

The Sixth Amendment's right to compulsory process of witnesses may well fall a victim to the vagaries of federalism next week. And I am not sure what to do about it.

Evidence begins today against my client, a former homicide detective accused of diverting funds intended for confidential informants to his own use. We have pleaded not guilty, studied the state's evidence and interviewed witnesses. Our most important witness is in federal custody, being held out of state. His name is Billy White.

Mr. White is the stuff of legend in New Haven. For many years, he was head of the city's narcotics unit, running what amounted to an almost unreviewable fiefdom. It all came crashing down around his ears in March 2007. That's when the FBI raided the New Haven Police Department headquarters, seizing thousands of documents, and, ultimately, arresting Mr. White, who is now serving federal time after pleading guilty corruption charges.

Mr. White's name is all over the documents in my client's case. Centeral to the state's claim is the assertion that my client used the registration number of an actual confidential informant, CI 01-02, to claim funds, but that the informant never received the money. We'd like to question Mr. White about this, having good reason he'll have plenty to say about the matter.

In the normal course, a lawyer simply prepares a writ of habeas corpus ad testificandum to compel a warden to produce a prisoner and requests that a judge sign it. If the lawyer succeeds in persuading the judge the witness is necessary, the order issues. Thus, if I need someone incarcerated in Connecticut, I simply ask for him. It is that simple.

But in Mr. White's case, the warden is a federal official and the facility is out of state. As a result, the reach of my subpoena power is limited. We've been told point blank by prison officials that they will not honor an order from our judge. He is, after all, a mere state court judge with limited jurisdiction.

However, the prison may just send the fellow along. It is up to them, they say. In order to send him, however, the prosecution must request that Mr. White be sent to Connecticut. The prosecution has accommodated us and made the request. A so-called 10 Point letter has been sent to the prison requesting production of Mr. White. A copy of the judge's order granting my writ of habeas corpus has also beem forwarded to the prison.

Trial begins in about four hours, and, as it does, I have no idea whether Uncle Sam will produce my witness. I hope to put him on the stand next week. The trial court here has ordered that the State of Connecticut shall pay the costs of transporting the witness, and that state officials will retrieve the man and accompany him to the state. There is really nothing for federal officials to do and no expense for a harried prison staff or Marshal's service to incur.

In many years, neither the judge, the prosecution nor I have faced this potential stark limitation on the right to compulsory process. Should the federal prison reject the request we have made to have the prisoner brought here for trial, we'll ask a federal judge for relief. I cannot believe that the Sixth Amendment's reach stops at the door of a federal prison.

Comments: (3)

  • Hi Norm,Two questions if I may. If the detective ...
    Hi Norm,Two questions if I may. If the detective did use the funds for information he got from other CIs not identified, can they be deposed in secret on tape to defend your client?Can Mr. White be deposed on location where he is jailed, on tape or in some other format acceptable to the court, so you don't lose his valuable input?Wondering Aloud
    Posted on April 3, 2009 at 12:32 pm by Anonymous
  • What a nice comment. You made my day
    What a nice comment. You made my day
    Posted on April 1, 2009 at 12:17 pm by Norm Pattis
  • Fascinating stuff, when you are an outsider, just ...
    Fascinating stuff, when you are an outsider, just observing. It must be a burden unique to your profession to carry the weight of another person's fate on your shoulders. Honestly, I don't give that kind of thing much thought when I think about what lawyers do. Thanks for enlightening us, Norm. I am sure I speak for a host of others when I say I admire the work you do. This detective can be very grateful to have someone as skilled and as caring as you.
    Posted on April 1, 2009 at 12:03 pm by Anonymous

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