Schmuck: Will not make trial date while in Iraq.
By Darrell Todd Maurina: CNJ staff writer
John Schmuck is accused of battery in connection with a Clovis bar fight in November of 2002. He didn’t show up for court in April 2003, he didn’t show up for another court date last week and a warrant has been issued for his arrest.
But his supporters say he has a good excuse for missing court — the Marine sergeant is stationed in Iraq in the United States’ war against terror.
“I think it is ridiculous — stupid, that’s a better word,” said Schmuck’s father, former Army officer Allen Schmuck of Portales. “I think it’s demoralizing not only to him but also to other troops, his relatives and friends.”
Prosecutor Brent Capshaw said he’s not planning to interrupt Schmuck’s military duties; he’s just ensuring a suspect will be held accountable for an alleged crime.
Capshaw said Schmuck doesn’t need to worry about being arrested while on duty in Iraq, or even when he returns to his base in California.
“I asked that a bench warrant be issued, that it only be confined to the borders of this state, and told (Schmuck’s attorney) that when he gets back, let me know, we will quash the warrant,” Capshaw said. “When he gets back … we’ll go get the warrant quashed, set a trial date, and if he shows up — which I’m sure he will — we can go from there.”
Beth Lindsey, Schmuck’s attorney, said Capshaw’s actions are unnecessary.
“The alternative was just to dismiss the charges without prejudice and then re-file the charges when he comes back from Iraq,” Lindsey said. “It was unbelievable to everyone that Brent Capshaw would make that motion. It was stunning to everyone in the courtroom.”
Capshaw said he filed the failure-to-appear notice because New Mexico rules for speedy trial require that cases be prosecuted within six months or run the risk of being thrown out. Issuing the bench warrant for Schmuck’s arrest stopped the clock on the six-month rule, Capshaw said.
He said Lindsey’s approach might also work, but court precedents aren’t clear.
“Dismissal without prejudice does not stop the time limits on a case from running; it changes the standard,” Capshaw said. “The six-month rule is standard by statute, but there is a subjective standard for the other option.
“In civil practice there is a procedure where if someone is assigned overseas you have to put it on hold until they come back, but I’m not aware of any statute that calls for putting a criminal case on hold for someone who is in the military,” Capshaw said.
Allen Schmuck said his son has provided a list of witnesses who say he was not involved in the bar fight. Schmuck refuses to accept a plea bargain offered by the district attorney’s office on the grounds that he is innocent, according to his father.
Lindsey said while a plea bargain would be easy, she has at least eight or nine witnesses ready to testify to her client’s innocence. John Schmuck refuses to admit to something he believes he hasn’t done just because he’s stationed overseas and can’t show up for trial, his attorney said.
Capshaw said he’s equally confident he’ll win the case.
“It’s up to a jury to decide who they want to believe,” Capshaw said. “The police that investigated and the victim are just as adamant that they have their day in court as Mr. Schmuck is that he has his.”