The Fugitive Disentitlement Doctrine Part 2

Jay Leiderman
By: Jay Leiderman
October 16 2016

The fugitive disentitlement doctrine is discussed in detain in the case of People v. Kang (2d Dist. 2003) Cal.App.4th 43, the court recognized, in achieving a different result that: “If it is essential to vindicate judicial authority, the prosecution may charge Kang with failure to appear pursuant to Penal Code section 1320.5, although the penalty for that crime pales in comparison with the sentence imposed by the trial court. Put in perspective, disentitlement is largely symbolic. Also, any consideration that dismissal discourages escape is speculative at best.” (107 Cal.App.4th at 51-52.)  Kang fled to Korea after a guilty verdict and had to be extradited back to the U.S.

In this case, the prejudice suffered to the appellate process was less than that suffered in Kang. “The most critical consideration is whether the absence of the appellant undermined the appellate process. Kang’s fugitive status prevented the consolidation of his appeal with the appeal of his codefendants.”  (Id. At 52)

Likewise, the summation of Kang is apposite:  “We agree with Clark II’s [People v. Clark (1927) 201 Cal. 474, 478] admonition that if the court has the power to reinstate the appeal “it should only be exercised in those cases where it is plainly made to appear that a denial of its exercise would work a palpable injustice or wrong upon the appellant.” (citation omitted)”  (Id. At 52-53)

Not only does the petitioner fit within the “palpable injustice or wrong” category, in light of the fact that his flight was coerced, but the appeal should be reinstated because Petitioner alleges that he fits within the fundamental miscarriage of justice exception to the fugitive disentitlement doctrine. Polanski v. Superior Court (People) (2009) 180 Cal.App.4th 507[1] tells us that when issues of great concern to the criminal justice system are raised, they should be dealt with by the trial court notwithstanding the fugitive disentitlement doctrine.

when issues of great concern to the criminal justice system are raised, they should be dealt with by the trial court

Accordingly, twice, in both Kang and Polanski our circuit has decided that it is best that courts resolve these issues rather than disentitle the litigant.  Indeed, a reading of Kang and Polanski together operates to create the rule of law that once a person is back in custody the court cannot disentitle the litigant from, his appeal.  Likewise, this court must reconsider its earlier position and reinstate the appeal.

Fugitive disentitlement, however much it may advance legitimate policies (United States v. Veliotis (S.D.N.Y. 1984) 586 F.Supp. 1512, 1515 (Veliotis)), is not an automatic rule but a discretionary tool of the courts that may only be applied when the balance of all equitable concerns leads the court to conclude that it is a proper sanction for a party’s flight. (United States v. Van Cauwenberghe (9th Cir. 1991) 934 F.2d 1048, 1054 (Van Cauwenberghe) [“The disentitlement doctrine . . . is not one of jurisdictional dimensions, but rather one based on equitable considerations”].) The doctrine is a blunt weapon, not appropriate in every matter in which a party has fled criminal prosecution. (Polanski v. Superior Court (People) (2009) 180 Cal.App.4th 507, 531)

California courts, too, have declined to apply the disentitlement doctrine when the equities did not support it. In Kang, supra, 107 Cal.App.4th at page 48, the Court of Appeal addressed the question of whether a former fugitive whose initial appeal had been dismissed could pursue an appeal anew after his recapture. Considering the factors traditionally evaluated in the disentitlement analysis, the court concluded that it should decide Kang’s appeal on its merits. (Id. at p. 51.) Enforceability was no longer a problem, because Kang was back in custody. (Ibid.) Moreover, “[i]t may be true that Kang flouted the authority of the trial court when he failed to appear for sentencing and became a fugitive, but disentitlement of Kang to foreclose appellate review is not desirable. If it is essential to vindicate judicial authority, the prosecution may charge Kang with failure to appear pursuant to Penal Code section 1320.5, although the penalty for that crime pales in comparison with the sentence imposed by the trial court. Put in perspective, disentitlement is largely symbolic. Also, any consideration that dismissal discourages escape is speculative at best.” (Id. at pp. 51-52.) The court considered the most significant factor to be the impact that Kang’s fugitive status had on the appellate process: his appeal could have been combined with that of his codefendants had he been present. (Id. at p. 52.) The court questioned whether there would be prejudice to the government because “it would be impossible to convene a new trial due to the unavailability of witnesses and other evidence,” but found no evidence of prejudice. (Ibid.) The court concluded, “Even though Kang’s fugitive status precluded consolidation of his appeal with his codefendants‟ appeals, which resulted in the loss of an efficient disposition of these related appeals, that is an inadequate basis by itself to disallow appellate review.” (Ibid.) (180 Cal.App.4th at 536-37)

This court, in 2003, was prevented from balancing “all equitable concerns” (180 Cal.App.4th at 533)

[1]  Polanski dealt with a writ of mandate, not a petition for a writ of habeas corpus.  Even so, the overarching principle is one of justice, and that applies to any type of proceeding.

fugitive dismantlement doctrine
When a fugitive fails to appear for court proceedings, he or she loses their right to appeal

The case of In re Grunau, though it discusses a habeas  proceeding and not a direct appeal, has considerable application herein.  In the case of In re Grunau (2008) 169 Cal.App.4th 997 the court excused a 10 year delay in bringing a habeas petition seeking to reinstate an appeal and found good cause for the delay after it was established appellate counsel had mislead his client into believing the appeal had been filed.

The new Polanski Case also has practical application herein.  Though movie director Roman Polanski remains a fugitive who is currently fighting extradition from Switzerland, the appeals court has stated that his claims should nonetheless be heard because they raise serious issues. Polanski v. Superior Court (People) (2009) 180 Cal.App.4th 507:

“Polanski’s resistance to extradition does not automatically “disentitle” us from considering his petition. (United States v. Gonzalez (9th Cir. 2002) 300 F.3d 1048, 1051 [because fugitive disentitlement “is an equitable doctrine, application is discretionary”].) Because of the very serious allegations of judicial and prosecutorial misconduct raised by Polanski in this matter and their implications for the integrity of the criminal justice system, we decline the People’s request to apply the disentitlement doctrine to Polanski’s petition for writ of mandate and instead consider it on its merits. (See Eisler v. United States (1949) 338 U.S. 189, 196 (Eisler) (dis. opn. of Jackson, J.) [“I do not think we can run away from the case just because Eisler has.”].)” (180 Cal.App.4th at 530)

“[T]he disentitlement doctrine does not bar relief when a matter presents systemic issues and interests of higher importance than the values that would be advanced by disentitling a litigant because of his or her flight.” (180 Cal.App.4th at 554)

The disentitlement doctrine does not bar relief when a matter presents systemic issues and interests of higher importance

“As the trial court may use its inherent power to fashion “a remedy for deprivation of a constitutional right to suit the needs of the case” ([People v.] Flores, [ ], 214 Cal.App.3d at p. 144), the court may consider any suitable options.”  (180 Cal.App.4th at 556)

Suitable options in this case involve putting petitioner back in the situation he was in prior to the harm he suffered at the hands of his attorneys, ordering a new trial, conducting a new sentencing hearing, hearing and considering all of petitioner’s claims that are ordinarily suited for appeal in this habeas proceeding, or all of the above.

Habeas can be a substitute for appeal in certain circumstances, as here, where petitioner was denied an appeal because of the fugitive disentitlement doctrine, a doctrine that should have not been applied in this case because of the unique facts that led to petitioner’s flight, and the issues raised on habeas that are ordinarily suited for appeal go to the constitutionality of petitioner’s conviction and incarceration.

While habeas may not “ordinarily” be a substitute for appeal (In re Harris (1993) 5 Cal.4th 824), from the start, this has been anything but an ordinary case. That is not why petitioner is entitled to extraordinary relief.  Here, petitioner is entitled to the extraordinary relief that he requests because petitioner was acting under duress at times and out of necessity at others.  The duress and necessity that prompted petitioner’s actions was never explained to the appellate court that applied the fugitive disentitlement doctrine to strip petitioner of his appeal rights.  Accordingly, this court should either reinstate his appeal or consider all of the issues that would ordinarily be suited for appeal in this habeas.  Petitioner sets forth some more factual argument and case law to buttress this conclusion.

4 thoughts on “The Fugitive Disentitlement Doctrine Part 2

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