The Right to a Speedy Trial

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Tuesday, April 30th, 2019
The Right to a Speedy Trial

Recently, some fellow defense counsels and I discussed how the case law regarding the right to a speedy trial applied to our cases. In our speedy trial motions, we have cited cases regarding post-accusation delay of 8 months or longer having been found to be “presumptively prejudicial.” Clarke v. State, 928 S.W.2d 709, 713 (Tex. Crim. App. 1996). We have also cited cases which affirm that at a speedy trial hearing, the State has the burden of proof regarding rebutting the presumption of prejudice. Gonzales v. State, 435 S.W.3d 801 (Tex. Crim. App. 2014). We have noticed that some trial judges do not address this “presumptively prejudicial” delay period and the requirement that the State carry the burden of proof at speedy trial hearings. As a result, we looked into the following speedy trial case law for guidance.

The Speedy Trial Law in General

The Sixth Amendment to the United States Constitution states, in relevant part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” Pursuant to the Fourteenth Amendment, this Sixth Amendment speedy trial right is binding on the states. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).

Regarding this Sixth Amendment speedy trial right, the Supreme Court of the United States has stated as follows:

[The Sixth Amendment] guarantee [of a speedy trial] is an important safeguard to prevent undue and oppressive incar­ceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.

United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).

With respect to the difference between the Sixth Amendment speedy trial right and other constitutional protections, the Supreme Court has stated:

The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at time in opposition to, the interests of the accused.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The remedy for a violation of the speedy trial right is dismissal of the charging instrument with prejudice. Id. Such a dismissal is the sole means that provides a remedy for the harm done to a defendant by a delay in the right to a speedy trial. Id. Such a dismissal is mandated once a defendant’s Sixth Amendment speedy trial right has been violated. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

The Sixth Amendment speedy trial right applies once a person becomes an “accused.” United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). A person becomes an “accused” once there is an arrest. Id. Regarding an arrest, the Court stated:

Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family, and his friends.

Id.

The Court, in 1967, stated as follows regarding the anxiety and other factors on a citizen arrested for an offense:

The petitioner is not relieved of the limitations placed upon his liberty by this prosecution merely because its suspension permits him to go “whithersoever he will.” The pendency of the indictment may subject him to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes. By indefinitely prolonging this oppression, as well as the “anxiety and concern accompanying public accusation,” the criminal procedure condoned in this case . . . clearly denies the petitioner the right to a speedy trial . . .

Klopfer v. North Carolina, supra.

A demand for a speedy trial is not a necessary condition to the consideration of the speedy trial right. Barker v. Wingo, supra. “Such an approach, by presuming waiver of a fundamental right from inaction, is inconsistent with this Court’s pronouncements on waiver of constitutional rights.” Id. “Courts should ‘indulge every reasonable presumption against waiver’ . . . and they should ‘not presume acquiescence in the loss of fundamental rights.’” Id. A presumption against waiver with respect to the speedy trial right is appropriate given that a delay in a speedy trial after a person is arrested and released on bail results in such a person being “unable to lead a normal life because of community suspicion and his own anxiety.” Id.

The Court in Barker v. Wingo concluded that in speedy trial cases a balancing test is appropriate “in which the conduct of both the prosecution and the defendant are weighed.” Id. The Court stated:

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.

* * *

We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other cir­cumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.

Id.

The above balancing analysis is conducted only if there exists delay that is “presumptively prejudicial.” Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). The standard of “presumptively prejudicial” is not a statistical probability of prejudice but is merely a conclusion that the delay is “unreasonable enough” to warrant further analysis under Barker. Id. “Depending on the nature of the charges, the lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.” Id. “We note that, as the term is used in this threshold context, ‘presumptive prejudice’ does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.” Id.

With respect to the reasons for the delay, the Court in Barker stated as follows:

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

Barker v. Wingo, supra.

The prosecution bears the burden justifying the delay. The Court of Criminal Appeals addressed this issue as follows:

[T]he burden of excusing the delay rests with the State and that in light of a silent record or one containing reasons insufficient to excuse the delay, it must be presumed that no valid reason for delay existed.

Turner v. State, 545 S.W.2d 133 (Tex. Crim. App. 1976).

With respect to the standard of review on appeal of a trial judge’s denial of a speedy trial motion, the Court of Criminal Appeals has stated:

When reviewing an application of the Barker test, a reviewing court uses the same burden of proof allocation as in the context of a motion to suppress. [] That is, we give almost total deference to historical findings of fact of the trial court that the record supports and draw reasonable inferences from those facts necessary to support the trial court’s findings, but we review de novo whether there was sufficient presumptive prejudice to proceed to a Barker analysis and the weighing of the Barker factors, which are legal questions. [] In addition, a reviewing court should not consider in its deliberations record evidence that was not before the trial court when it made its ruling.

Gonzales v. State, 435 S.W.3d 801 (Tex. Crim. App. 2014) (citations omitted).

In Texas, a 17-month delay (between the date of indictment and date of trial) was unreasonable enough to trigger the Barker enquiry. Phillips v. State, 650 S.W.2d 396 (Tex. Crim. App. 1983). In Phillips, the defendant was convicted of rape and sentenced to imprisonment for ten years. Id. The offense occurred on May 25, 1976; an indictment for rape was returned and a capias was issued on October 7, 1976; the defendant became aware of the indictment on November 29, 1977; the capias was returned on December 1, 1977; the defendant filed a speedy trial motion on March 2, 1978; and trial began on March 9, 1978. Id. Law enforcement claimed it did not know how to find the defendant to serve him with the capias. Id. The State’s reason for the delay was negligence, which was not a justification. Id. With respect to a showing of prejudice, the court stated, “In considering the factor of prejudice, moreover, this court does not require proof of ‘actual prejudice,’ but only ‘some showing’ that the delay has been prejudicial.” Id. The court granted speedy trial relief. Id.

The Phillips court recognized the timing of the speedy trial motion (client took no action between 11/29/77 and 3/2/78 and then requested dismissal rather than speedy trial). Id. With respect to this timing, the Court of Criminal Appeals stated as follows:

This is not to say, however, that asking only for dismissal will result in a “waiver,” while seeking a speedy trial and, in the alternative, a dismissal, would preserve the claim. In some cases, defense counsel may legitimately feel that a long delay has caused a client so much prejudice that dismissal is warranted, even if the State is belatedly ready to move promptly. Each case must turn on its own facts, and the particular relief a defendant seeks is but one fact to consider.

Id.

Presumptive Prejudice and Length of Delay

Factors to consider in a client’s case regarding presumptive prej­udice and length of delay include: (1) when the client was arrested; (2) when the client was indicted; (3) the period of delay; (4) whether or not this period of delay is sufficient to trigger the Barker enquiry and clearly weigh heavily in favor of finding a speedy trial violation; and (5) did the lengthy delay after arrest seriously interfere with the client’s liberty (was the client free on bail or not; did the delay disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, or create anxiety in him, his family, and his friends). See United States v. Marion, supra.

Prejudice to the Client Because of Length of Delay

Counsel should determine whether or not the facts of the case constitute “some showing” that the delay has been prejudicial. See Phillips, supra; Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) (affirmative demonstration of prejudice not required). Was the delay between the client’s arrest and indictment and later trial solely attributable to the State? A client would be entitled to relief if the presumption of prejudice was neither extenuated by acquiescence nor persuasively rebutted by the State at a speedy trial hearing. See Doggett, supra, 505 U.S. 647, 651. Remember that affirmative proof of particularized prejudice is not essential to a client’s speedy trial claim, and the State’s negligence is not automatically tolerable simply because the client cannot demonstrate exactly how it has prejudiced him. See Doggett.

Unexplained delay by the State tilts a case against the State especially if the client, not the State, has been prejudiced more severely. Determine whether or not the indictment subjected the client to anxiety and concern accompanying public accusation and public scorn thereby almost certainly forcing curtailment of the client’s speech and associations. See Klopfer v. North Carolina, supra.

The State at the speedy trial hearing must persuasively rebut the presumption of prejudice in such a case. If the State during the hearing offered no tenable reason for the delay, negligence is not a tenable justification. See Phillips, supra. The client must bring his speedy trial claim to the attention of the trial judge and the State. The client must not take advantage of the delay. A delay in a case as described above and the negligence by the State in the case results in prejudice to the client resulting in the deprivation of the client’s Sixth Amendment right to a speedy trial.

Hopefully, the cases cited in this article and the factors considered will help defense counsel to successfully assess a client’s speedy trial rights claim and help defense counsel during the speedy trial hearing. I have attached a sample speedy trial motion for your use. Good luck to you.

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