SPEEDY TRIAL MOTIONS
CLE Presentation for DCDLA
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
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.
Every defense lawyer should take a look at TCCP Art. 35.27 Reimbursement of
“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.