SAN JOSE - AUGUST 10: People gather outside of the Hall of Justice in San Jose, Calif., on Monday, Aug. 10, 2020. (Randy Vazquez/ Bay Area News Group)
SAN JOSE — Earlier this year, line-level public defenders in Santa Clara County started noticing an unexpected trend: Criminal defendants were suddenly getting new charges added to their existing charges — specifically for not showing up to court.
There are a lot of reasons why people don’t show up to court. For public defenders, the factors they typically see are often a combination of poverty, language barriers, and homelessness, with the latter situation making it hard to receive mail notices and phone calls.
Until this past summer, non-appearances where negligence was suspected were responded to primarily by judges who issued bench warrants. Prosecutors have always had the ability to file failure-to-appear felony charges against absentee defendants, but historically only did so a handful of times a year, largely deferring to judges to handle enforcement.
But the District Attorney’s Office says the new charges have become necessary to uphold accountability for people charged with serious crimes who willfully defy the court system.
Public defenders and civil-rights activists, however, point out that the felony charges double down on penalizing populations that already lack trust, access and literacy with the court system.
“It was mostly people of color and poor people, and people in encampments who are already so beaten down,” Molly O’Neal, the county’s chief public defender, said in an interview last month. “When you start digging down into the reasons, it’s almost never because they intentionally miss their court dates.”
The issue caught the attention of public defenders and court observers, when starting in August they saw a charge they rarely encountered instead show up multiple times a week, peaking to about a dozen in a week that month. Then after a few weeks, the charges subsided again, with no clear inflection point other than prosecutors’ empirical observation of court scofflaws trending upward.
Both sides agree that there is a continuing massive backlog of case progression in the county Superior Court caused by the COVID-19 pandemic. But Chris Yuen, a deputy public defender in the county who works heavily in arraignment court, said it was only this past August — more than two years after the pandemic began — that he started to see felony charges for failing to appear in court get filed by prosecutors.
“I don’t think I had ever seen one before,” Yuen said. “When I first saw it, I was really confused. At first I was enraged. Then we thought, let’s start tracking this.”
After O’Neal and a coalition of community and civil-rights groups — along with this news organization — asked prosecutors to explain the uptick in charges citing Penal Code 1320 — willful failure to appear — District Attorney Jeff Rosen wrote them a letter in October describing “a startling backlog of cases which is exacerbated by some criminal defendants who willfully and repeatedly refuse to come to court.”
In the letter, Rosen said one case cited by O’Neal’s office, involving a man charged with weapons and drug offenses, prompted failure-to-appear charges based on a pattern of court no-shows rather than solely on the most recent charges. He also acknowledged that most defendants comply with their court dates, but that the segment who don’t must be held accountable.
To illustrate his stance, Rosen cited one-day sampling in October when he said a quarter of 101 out-of-custody defendants did not show up to court for hearings, and that with felony cases, that rate was 35%.
“Failures to appear in court constitute a drain of precious resources and exacerbate the already substantial delays and backlogs caused by Covid as our court system and community recover,” Rosen wrote. “It is corrupting when some people set themselves above the law and simply decide they won’t comply with a judge’s order to appear in court.”
For the public defenders and activists, that explanation fell short and did not give enough credence to the circumstances they say fuels court absenteeism, including the effects of the pandemic.
“There have been these enormous backlogs, and people missed court dates because court shut down and they didn’t know when their new court dates were,” O’Neal said. “It’s a strange time to start filing failures to appear.”
Yuen said one common issue is that when it comes to unhoused defendants, there’s often no proof that they ever got written notice of their court appearances, given their inability to reliably receive mail. That challenge is often worsened by the presence of mental illness and substance abuse that contribute to their instability.
“There’s no proof the letter got delivered,” Yuen said of appearance-failure notices.
O’Neal also questioned the viability of PC 1320 charges once they face legal scrutiny: “It’s very hard to prove someone intentionally didn’t come to court.”
Raj Jayadev is co-founder of the civil-rights group Silicon Valley De-Bug, which allocates much of its resources to court watching and supporting indigent defendants, who he says have been by far the most impacted by failure-to-appear charges.
“The reality is that people are not fleeing,” he said. “They’re not divising plans to run from the court hearings. People are missing court because their lives are de-stabilized, and there are such urgencies on survival that important appointments get lost in the mix.”
He added that adding the felony charges make “no sense that there would be a criminal punishment beyond that. It’s not going to act as some sort of deterrent for people missing court, and it’s not going to act as an incentive.”
In his letter, Rosen stood firm on the rationale of enforcing accountability for court absenteeism in egregious instances. But he did say in response to O’Neal’s questions that his office has no intention to file PC 1320 charges in misdemeanor cases, and that he has assigned two of his assistant DA’s to evaluate instances where charges “might not be an optimal response,” and to dismiss them. The criteria for the charges, subject to final approval by those supervisors, involve only felony cases, “a recent history of significant numbers of willful failures to appear” and/or the presence of a serious public safety concern.
One of those evaluating supervisors, Assistant DA James Gibbons-Shapiro, said in an interview that one of the distinct differences between a failure-to-appear charge and a bench warrant for not appearing in court is that the former can consolidate repeated instances of absenteeism to establish a pattern to a judge.
Gibbons-Shapiro added that for the population of defendants affected by circumstances like homelessness and substance-abuse, making them show up to court is sometimes the only way for them to be directed to county rehabilitative and treatment programs.
“Right now, not only are we not not getting accountability for those less-serious cases, but we’re not allowing the innovative programs in this county to work,” he said. “These programs only work if they are in court for a judge to order to the program.”
After the public defenders’ outcry this fall, the rate of failure-to-appear charges being filed has sharply fallen off compared to the surge in August. But the notion they’re now part of prosecutors’ contemporary repertoire, O’Neal said, warrants continued diligence.
“The pressure of my office and community groups has done its work, I’m glad about that,” she said. “But I still don’t really know why it started in the first place.”
Originally published at Robert Salonga