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SPEEDY TRIAL MOTIONS John Gioffredi CLE Presentation for DCDLA March 2011 (214) 739-4515 Every defendant is guaranteed the right to a speedy trial by the Sixth Amendment of the US Constitution and Article 1, Section 10 of the Texas Constitution. The first case to set forth the criteria by which the speedy trial right is to be judged was the 1972 case of Barker v Wingo, 407 US 515, 92 Sup. Ct. 2182. Prior to then, the Supreme Court had only dealt with speedy trial issues on a few infrequent occasions. BARKER v WINGO Barker v Wingo set up a four part balancing test to determine whether or not a defendant had been deprived of his constitutional right to a speedy trial. The four factors to be considered are: 1) length of the delay, 2) the reason(s) for the delay, 3) the defendant’s assertion of the right, and 4) any prejudice to the defendant. Length of the delay: Until there is some delay which is presumptively prejudicial, there is no need for inquiry into the other factors. The length of the delay that will provoke such an inquiry depends on the circumstances of the case. The delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge. Generally, in the north Texas area, for a defendant to have a decent shot at a speedy trial dismissal, the delay has to be at least a year, although there are cases that say that an eight month delay is sufficient to trigger a speedy trial inquiry upon demand. Reasons for the delay: Different weights are to be assigned to different reasons for the delay. A Deliberate attempt to delay the trial in order to hamper or harass the defense should be weighted heavily against the government. A neutral reason, such as crowded dockets are weighed against the government, but much less heavily. Such delays are still weighed against the government because the ultimate responsibility for bringing the defendant to trial rests with the government, not the defendant. Valid reasons, such as missing witnesses, should generally serve to justify delay. Assertion of the right to a speedy trial: The defendant’s assertion of his right to a speedy trial is entitled to strong evidentiary weight in determining whether he has been denied the right. And failure to assert the right will make it difficult for a defendant to prove that his speedy trial right was denied. BECAUSE OF THIS FACTOR, YOUR FIRST SPEEDY TRIAL MOTION SHOULD ALWAYS BE A DEMAND FOR A SPEEDY TRIAL, NOT A MOTION TO DISMISS. Prejudice to the defendant: Prejudice is to be assessed in light of the interests of defendants which the speedy trial right was designed to protect. There are three such interests: a) to prevent oppressive pretrial incarceration, b) to minimize anxiety and concern of the accused, c) to limit the possibility that the defense will be impaired. The most serious of these is the last. If witnesses die or disappear during the delay, prejudice is obvious. Loss of recollection is also trial prejudice; however, what has been forgotten can rarely be shown. The disadvantage of those who may not secure pretrial release are obvious, but even those on bond are disadvantaged by restraints on their liberty and by living under the cloud of anxiety, suspicion, and often hostility. Barker, at 533. None of the four factors are either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Rather, the courts are to engage in a difficult and sensitive balancing process. Barker, at 533. In Barker, the Supreme Court declared “the difficulty of balancing these factors is illustrated by this case [Barker], which we consider to be close.” The delay of well over five years was considered “extraordinary” by the Supremes, and they noted that “only seven months of that delay can be attributed to a strong excuse – the illness of the investigating officer.” But then they concluded that the two counterbalancing factors outweighed those deficiencies: 1) the prejudice was minimal – only two very minor lapses of memory, and 2) Barker never requested, nor ever really appeared to actually want a speedy trial. And this last factor – the lack of the assertion of the right - was held to be “more important that the absence of serious prejudice.” The record in Barker showed that defendant took no action that could be construed as asserting his right to a speedy trial, and instead the record strongly suggested that he hoped to take advantage of the delay. In oral arguments, Barker’s lawyer stated “Your honor, I would concede that Willie May Barker probably – I don’t know this for a fact – probably did not want to be tried.” Barker, at 535. The Commonwealth of Kentucky wanted the delay because they desired to secure the testimony of the accomplice, Silas Manning. If Manning had never been convicted, Barker would have never been convicted. Manning was tried six times over four years before his convictions were final. From the record, it appeared that acquiescing in the delay was a deliberate trial decision of Barker and his counsel. EFFECT OF DENIAL OF DEFENDANT’S RIGHT TO A SPEEDY TRIAL The Sixth amendment provides “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State…” The right to a speedy trial is as fundamental as any of the other rights secured by the Sixth Amendment. Klopfer v North Carolina 386 US 213 at 221, 87 Sup. Ct. 988 at 992 (1967). Once there has been a finding that a defendant was denied his right to a speedy trial, the only appropriate remedy is dismissal. In designing the appropriate way of analyzing speedy trial motions, the Barker Supreme Court considered setting a fixed time period so that there would be absolute clarity in the acceptable length for tolerable trial delay. That was in fact the approach recommended by the ABA. But the Supreme Court declined to do so, as they felt that such action would be “engaging in legislative rulemaking,” or as it is more commonly called today, legislating from the bench. Another approach considered was the demand-waiver rule, in which the defendant waives any speedy trial consideration for any periods of time to which he has not invoked the right. But that was ruled too restrictive, as there are some times where delay appreciably harms the defendant, and not all defendants would understand that they could demand a speedy trial, or that they would have to file a written demand to do so. So the Supreme Court decided that the assertion of the right, or failure to do so, would simply be one factor of the inquiry. Such an approach, it was decided, would allow the trial court to exercise discretion. Because speedy trial considerations involve the balancing test, and are very fact dependent, and require careful and thoughtful judicial discretion, the wording of your motion to dismiss is probably more important in these motions than it would be in other more routine motions. Judges (in my experience, at least) actually read these motions prior to the hearings, and you want to make an immediate impression that your guy has been screwed, and that he is deserving of relief. I always try to include a factual summary in the motion itself, and some relevant quotations from other cases to try to get the judge leaning in the direction of dismissal before the hearing even starts. IS ACTUAL TRIAL PREJUDICE REQUIRED TO OBTAIN A DISMISSAL? NO! Trial judges tend to place an inordinate emphasis on trial prejudice. Two particular cases clearly demonstrate that actual trial prejudice is not necessary for a speedy trial dismissal. Zamorano v State 84 SW 3d 643 (CCA 2002). There was nearly a four year delay between the arrest and the resolution of Zamorano’s plain, vanilla misdemeanor DWI. All parties agreed that four years was well beyond the length of time necessary to trigger a full speedy trial inquiry. And that delays of this length weigh heavily in favor of the defendant. The State presented essentially no acceptable explanation for the delays. The main reason given was that the video tape was in Spanish, and the prosecutors assigned to the case didn’t speak Spanish. Since the prosecution was in San Antonio, Texas, the CCA said that the reason given by the State, if true, constituted “official negligence.” This factor weighed in favor of the defendant. Defendant’s first speedy trial demand was two and a half years after the arrest, which the CCA categorized as “tardy”. But two months after defendant’s first speedy trial request was denied, the defendant filed a second request. The CCA categorized this as “a repeated assertion”…“evidencing his persistence” and noted that “nothing indicated an affirmative desire for delay” on the part of the defendant. As far as prejudice, the CCA noted that neither pretrial incarceration nor impairment of his defense was indicated. But Zamorano missed 11 days of work due to attending court dates. He testified that these missed days from work cost him $120 a day. He testified that he had to check in with his bail bond company every Tuesday for four years. He also testified that the long delay had caused him stress. The CCA wrote “the length of the delay, the direct economic costs, four years’ worth of disruptions to his job, and the weekly reporting to his bail bond company all support an inference of actual prejudice.” Keller and Keasler dissented, of course, since the majority decision meant that a defendant would prevail. Womack dissented as well. Still, a 5 – 3 majority of that CCA decided to dismiss this case on these facts (Judge Hervey did not participate). Turner v State 545 SW 2d 133 (CCA 1976). A felony theft conviction was reversed, and the case dismissed on speedy trial grounds even though defendant made no serious contention that his ability to present a defense was prejudiced. Defendant had been in the federal pen throughout the entire pendency of his state felony theft charge. He was indicted on August 14th, 1972. He made numerous speedy trial demands. He was finally moved, tried, and convicted on November 20th, 1974. The State made no effort to obtain the defendant for trial by writ until September 23rd, 1974, over two years after charges were filed. The State also gave no explanation for that delay. “Delay in bringing such a person [someone in the pen on other charges] to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bond upon an untried charge.” He might lose the possibility of concurrent sentencing, the duration of his current sentence may be increased (i.e. – parole denied), and the conditions under which he must serve his sentence may be worsened (lessened opportunity for clemency, parole, pardon, or trustee status). DOES THE STATE HAVE TO HAVE CAUSED PART OF THE DELAY? NO! Many judges (i.e. - Peggy Hoffman) seem to think that a speedy trial dismissal is punishment for the State, instead of a protected Constitutional right of the defendant, and won’t dismiss a case on speedy trial grounds unless the State has some bad faith or negligent part in the delay. Hull v State, 699 SW 2d 220 (CCA 1985) should conclusively establish that this is not the case. Mr. Hull shot and killed his mother. He was ruled incompetent to stand trial for the first 8 months after the shooting, but the State announced that they were ready for trial at all times after and even before the defendant was found to be competent. The State and the defense made several joint requests that the trial be held. All parties agreed that all of the delay was entirely due to the trial judge *who was “winding things down” as he was retiring soon+ and not the State. No specific trial prejudice was shown. There was a total of 8 months of delay due to defendant’s incompetence to stand trial, and 19 months due to the judge refusing to hear the case. The defendant was only in jail for two months. Even though there was only 27 months of total delay from date of offense to date of trial, eight of which were required because of defendant’s incompetence to stand trial, and even though the State had no responsibility for any of that delay, the CCA reversed this murder conviction, and dismissed it based upon the denial of the defendant’s right to a speedy trial. FIVE COMMON SITUATIONS WHERE A SPEEDY TRIAL CLAIM SHOULD BE EXPLORED When your client is on bond in a felony case, and the DA won’t try it because it is a POS. When the defendant doesn’t even know about the case for over a year after filing. On a misdemeanor, when there is a contested felony pending. Anytime the case drags on for over 18 months. When you are in a court with a backed up trial docket. A FEW NUGGETS TO BE FOUND IN THE CASE LAW: The delay that can tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge. Barker, p 531. The presumption that pretrial delay has prejudiced the accused intensifies over time. Dogget v US, 505 US 647 at 652, 112 Sup. Ct. 2686. Bad faith delay on the part of the State renders dismissal all but automatic. See Zamorano, below. SOME STATUTORY HELP: Take a good look at TCCP Art. 42.12 Sec. 21(b). Upon written demand, a defendant’s revocation hearing must be held within 20 days. If not, the defendant must be released on bond until the hearing is held. If the defendant is being held in another state, the IADA (Interstate Agreement on Detainers Act) (see Cuyler v Adams 449 US 433, 101 Sup. Ct. 703) permits the State to file a detainer against the defendant and gain temporary custody for purposes of prosecution. Once the detainer is filed, the prisoner can request final disposition of the charges. The underlying charge must be brought to trial within 180 days of the prisoner’s request, and 120 days from the defendant’s arrival in Texas. If not, the charges must be dismissed with prejudice. Bonus Stuff: Every defense lawyer should take a look at TCCP Art. 35.27 Reimbursement of Nonresident Witnesses: “Every person subpoenaed by either party…for the purpose of giving testimony in a criminal proceeding…who resides outside the state or the county in which the prosecution is pending…shall be reimbursed by the state for the reasonable and necessary transportation, meals, and lodging expenses he incurs…” Section 9 later adds that this includes up to two character witnesses for each felony defendant, and TCCP Art. 24.16 provides for reimbursement for one character witness for each misdemeanor defendant.
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