By Shellsea Lomeli
SACRAMENTO – The effect of COVID-19 on the California court system is evident—it’s reduced jail populations, and ended trials for months—and here, in-custody defendant John Kempker didn’t appear in court because he refused to be tested for the deadly virus.
About three times, according to court records.
Kempker was taken into custody on June 14, 2020. His charges involve identify theft and attempted fraud..
His arraignment has not occurred, but not because the defendant has been labeled as 5150—in reference to California law for temporary, involuntary psychiatric commitment of individuals who have presented themselves as either a danger to themselves or others because of potential mental illness.
The court was told that he actually fit the 5150 mold; he has just refused to take the COVID-19 test. He was scheduled for arraignment June 16, and June 18. However, failure to take the virus test has postponed the hearings. Thursday, June 25, court records show he didn’t show, either.
In fact, several defendants failed to appear at the Sacramento Superior Court this past week.
While most were either ill or provided no explanation for their absence, the discussion of defendant John Kempker’s case determined a unique circumstance—he refused to be tested for COVID-19, the virus that has been traveling through incarceration facilities at an exceptional rate compared to the overall US population.
According to the National Commission on Correctional Health Care (NCCHC), “you cannot force an individual to have a test against his or her will (at least not without a court order).” Most facilities respond to this refusal by segregating them from the rest of the jail or prison population.
“In our experience, when you provide this type of explanation, virtually everybody decides to comply,” the NCCHC added. So far, Kempker does not appear to be a part of “virtually everybody.”
During the June 18 hearing, John Buchholz, the public defender speaking on behalf of the defendant, initially requested the arraignment to be pushed back two weeks.
Court Commissioner Kenneth Brody, who presided over the hearing in Department 61, indicated his disagreement with such a long extension. Arraignments are the first step in a criminal court case and should ideally occur as soon as possible, he said.
Additionally, the Chief Justice of California and the Judicial Council responded to COVID-19 by granting state courts the right to “extend the deadline in which a detained felony defendant has to appear in court from 48 hours to as long as seven days.” Extending Kempker’s arraignment for two weeks would be a violation.
“I need to know the difference if someone is 5150 or if there’s an issue where they’re being quarantined because it makes a difference whether I put it over one day. I can’t put over an arraignment for two weeks.” Commissioner Kenneth Brody stated via Zoom.
The bailiff, who was physically present in the Sacramento Superior Court, indicated that Kempker was “not present due to a medical reason.” She clarified that the defendant was placed on a 14-day quarantine on the psychiatric floor of the county jail due to his refusal to be tested for COVID-19.
“They also said he was uncooperative and aggressive so he wasn’t really safe to transport to court,” the bailiff added.
“Refusal to take the test does not grant good cause for him not to be arraigned for two weeks,” stated Commissioner Brody.
The public defender agreed, stating, “if it’s not COVID related, I ask for something sooner.”
“I find good cause to put this over to June 25,” concluded Commissioner Brody, noting that it indicated that someone refusing to be tested for COVID-19 is not enough reason to prolong an arraignment of a longer amount of time than what the court has normally been doing as far as waiving time in court. (Waiving time is a component of the Sixth Amendment right that allows defendants to slow their court proceedings, which has been used frequently during the COVID-19 crisis.)
However, another public defender expressed concern regarding what is “normal” for court proceedings in this unprecedented time. “I’m not sure what ‘normally’ is anymore because we had many changes,” she stated.
As it turned out, John Kempker didn’t appear Thursday, June 25, either. He now has a July 1 court date.
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