The right to a speedy trial is a constitutionally guaranteed right that is so accepted and recognized that many courts easily force or grant dismissals in cases almost automatically under certain circumstances. For example, in Bexar County there is a tradition that a second State’s continuance will automatically be denied. In part, this is because asserting speedy trial demands aligns perfectly with many judges’ desires to move their dockets. However, because of traditions such as Bexar County’s, lawyers can easily find themselves thinking of speedy trial in terms of local practice when, in reality, speedy trial hearings are more broadly useful. Criminal defense attorneys are not naturally in perfect harmony with a judge’s interest in hurrying things along, but helping hold the State’s feet to the fire by demanding a speedy trial for your client can be one of those times.
I. Speedy Trial Is a Fundamental Right
A speedy trial is a fundamental constitutional right, according to the seminal case Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Sixth and Fourteenth Amendments of the United States Constitution guarantee it to all accused citizens of this country, and it is further supported by Article I, § 10, of the Texas Constitution and Article 1.05 of the Texas Code of Criminal Procedure. “This right protects the accused from anxiety and concern that accompanies a public accusation, seeks to avoid impairment to a defense, and assures freedom from oppressive pretrial incarceration.” Bosworth v. State, 422 S.W.3d 759 (Tex. App.—Texarkana 2013, no pet.), citing Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). The right to a speedy trial is so important that appellate courts that find a speedy trial violation has occurred will not reverse and remand, but reverse and render a judgment in favor of your client.
II. The Barker Factors
In reviewing a constitutional speedy trial claim, appellate courts will “apply a bifurcated standard of review: an abuse of discretion standard for the factual components, and a de novo standard for the legal components.” Cantu v. State, supra, 253 S.W.3d at 282, citing Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). In the leading United States Supreme Court case of Barker v. Wingo, the Court laid down a four-prong test for determining whether this right has been violated by the State. Review of the Barker factors involves both legal and factual determinations, but “[t]he balancing test as a whole . . . is a purely legal question.” Id., citing Zamorano v. State, supra, 84 S.W.3d at 648 n. 19. The four factors include:
1. The length of the delay (from the time the defendant was arrested or accused);
2. The government’s reasons for the delay;
3. The defendant’s assertion of his right to a speedy trial; and
4. Prejudice to the defendant because of the length of the delay.
Id.; Gonzales v. State, 435 S.W.3d 801 (Tex. Crim. App. 2014).
It does not constitute a violation of the defendant’s right to a speedy trial where the defendant fails to show prejudice from the delay. Knox v. State, 934 S.W.2d 678 (Tex. Crim. App. 1996).But prejudice is presumed if the delay is unreasonable. Bosworth v. State, supra. The State must rebut the presumption of prejudice. Gonzales v. State, supra.
A. Length of Delay
Length of the delay is measured from the time the defendant is arrested or formally accused. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003), citing United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). “There is no set length of time constituting a presumptively unreasonable delay.” Bosworth v. State, supra, citing Cantu v. State, supra, 253 S.W.3d at 281. “On the other hand, courts have generally recognized a delay of eight months to be an unreasonable one and one which is adequate to trigger the Barker inquiry.” Id., citing Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992) (delay of 13 months from arrest to capital murder trial was prima facie unreasonable under circumstances). A delay that is presumptively prejudicial requires analysis of the remaining Barker factors. Barker v. Wingo, supra, 407 U.S. at 530; see Shaw v. State, supra, 117 S.W.3d at 889, citing Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (Twelve months is presumptively prejudicial and counts in favor of defendant; “‘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”).
The defendant bears the burden of demonstrating a lengthy delay and meets the burden by showing that the interval between his arrest or accusation and trial has crossed the threshold dividing ordinary delay from presumptively prejudicial delay. Doggett v. United States, supra, 505 U.S. at 651–52.
Moreover, Barker and its Texas progeny are concerned with post-indictment delay, which is addressed under the Sixth Amendment. If pre-indictment delay: (1) caused substantial prejudice to a defendant’s right to a fair trial; and (2) if it was an intentional device to gain tactical advantage over the defendant or for another improper purpose, the Due Process Clause of the Fifth Amendment would require dismissal of the indictment. State v. Ford, 410 S.W.3d 341 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d); United States v. Marion, supra; Spence v. State, 758 S.W.2d 597 (Tex. Crim. App. 1988).
B. Government’s Reason for Delay
The State may argue that the delay is unintentional or not the State’s fault. However, negligence on the part of the State does not justify excessive delay. Branscum v. State, 750 S.W.2d 892 (Tex. App.—Amarillo 1988, no pet.). Such negligence has lead to the dismissal of charges. See Phillips v. State, 650 S.W.2d 396 (Tex. Crim. App. 1983) (delay of 17 months; state was negligent in not finding defendant; no proof that defendant deliberately failed to move for speedy trial because of tactical reasons; and prejudice arose because defendant was deprived of his right to have federal sentence run concurrent, and he could not talk to defense witness, who subsequently died before trial).
Crowded dockets or lack of public resources for the criminal justice system do not justify a delay. In that regard:
“Unreasonable delay in run-of-the-mill criminal cases cannot be justified by simply asserting that the public resources provided by the State’s criminal justice system are limited and that such case must wait its turn… This approach… subverts the State’s own goals in seeking to enforce its criminal laws.” The right of the accused to a speedy trial serves not only substantial interests of society but those of the accused as well. Therefore, such may not be sacrificed upon the altar of practicality and reduced public treasuries.
Santibanez v. State, 717 S.W.2d 326, 330–331 (Tex. Crim. App., 1986), quoting Barker v. Wingo, supra.
C. Effort of Defendant to Obtain Speedy Trial
Although it is the primary burden of the government to bring an accused to trial, the defendant does bear the responsibility of asserting his right to a speedy trial. Barker v. Wingo, supra, 407 U.S. at 529–30. An accused’s failure to assert that right will make it difficult to prove he was denied a speedy trial. Id. at 532; see also Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003) (failure to timely demand speedy trial strongly suggests defendant did not really want trial and suffered no prejudice by not having one). “Repeated requests for a speedy trial weigh heavily in favor of the defendant, while the failure to make such requests supports an inference that the defendant does not really want a trial, he wants only a dismissal.” Cantu v. State, supra, 253 S.W.3d at 283 citing Barker v. Wingo, supra, 407 U.S., at 534–36.
Defense attorneys need to establish a record of demanding speedy trial, if possible. Unfortunately, we cannot always rely on judges’ notes, coordinators properly documenting resets, or a court reporter’s record since many resets occur without one. So, in filing a written request for a speedy trial alongside the standard pretrial motions, which are often ignored unless raised by the defense, you can establish a record favorable to supporting a request for a dismissal.
D. Prejudice to Defendant
The accused citizen is entitled to have any further proceedings arising out of the charges dismissed because of an unreasonable delay and its consequent prejudice. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (delay caused actual prejudice to the accused as a result of the deaths of two potential witnesses, the unavailability of another potential witness, and the loss of police records).
Claims which go to impairment of defense are not required to show prejudice. In Zamorano, the finding of prejudice was based on the evidence of financial cost, disruption of employment, and the length of the delay, which “support[ed] an inference of actual prejudice.” Zamorano, 84 S.W.3d at 654. The lack of particular evidence of impairment of Zamorano’s ability to present potential defenses did “not doom his claim.” Id. at 652 n. 49. In Stock v. State, prejudice was shown where the defendant was incarcerated for one year before trial, there was unrebutted testimony that the delay substantially interfered with Stock’s employment prospects, and he was subjected to burdensome economic costs and travel requirements for trial settings and urinalyses; there was no discussion of impairment to his ability to present a defense. Stock v. State, 214 S.W.3d 761, 766–67 (Tex. App.—Austin 2007, no pet.).
Indeed, “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria . . . it is part of the mix of relevant facts, and its importance increases with the length of delay.” Doggett v. United States, supra, 505 U.S. at 655–56. Further, an accused need not show actual prejudice—only some possibility of prejudice. Green v. State, 760 S.W.2d 50 (Tex. App.—El Paso 1988, no pet.).
Once presumption of prejudice arises, the burden switches to the prosecution to show that no serious prejudice occurred beyond that which ensued from ordinary and inevitable delay. Id. The government must justify the delay. Id.
There are three categories of delay. First, deliberate attempts to delay the trial to gain a tactical advantage or hamper the defense weigh heavily against the government. Second, more neutral reasons such as negligence, court congestion, or an understaffed prosecutor’s office weigh against the government. Finally a valid reason for the delay, such as newly discovered evidence like a concealed murder weapon, will not weigh against the government.If the record is silent and the government offers no reason for the delay, it will be placed in the neutral category and weigh against the government, though not heavily. United States v. Cardona, 302. F.3d 494, 498 (5th Cir. 2002).
The Barker Court also expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial:
We regard none of the four factors identified above [length of delay, reason for delay, defendant’s assertion of his right, and prejudice to the defendant] 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.
Barker v. Wingo, supra; Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) (three-year delay was unacceptable).
III. Speedy Trial Practice
There are two types of speedy trial motions. The first demands a speedy trial. It may be filed alone or coupled with an objection to a State’s Motion for Continuance or with a request for a special setting, for example. The second demands a dismissal for a defendant who has been denied a speedy trial and may be filed as soon as your client has suffered significant prejudice as a result of delay. However, the likelihood of success too early in a case is low.
Both of these motions can be used together. For example, in my practice, I routinely file a Motion Requesting Speedy Trial with my standard pretrial motions and notices and then file a Motion to Dismiss for Lack of Speedy Trial after the State’s first continuance and often subsequent continuances, too. This way, I can establish one of the Barker factors by clearly showing that the defense has made effort to obtain a speedy trial early, but in a way that most prosecutors and courts will ignore. Then, when you have an advantage on the facts or posture of your case, you can use the second motion to get a hearing and fight for a dismissal. Otherwise, you may find yourself losing the advantage of delay and ending up in trial too quickly.
However, sometimes a speedy trial motion can help get a continuance. If your client’s case has been prejudiced, then a judge who rules against you on other Barker factors may be obligated to give a continuance. One of my clients, who was arrested for Assault–Family Violence towards his son, ended up getting divorced. His ex-wife then moved after breaking off contact. She was a witness and had previously given a statement blaming the son and providing a defense. After a private investigator was unable to locate her, we filed a Motion to Dismiss for Lack of Speedy Trial.
Unfortunately, the divorce happened quickly and the criminal trial court was fast. Although there was no denying that she was a material witness, there had not been much delay for trial. There was also the argument that she may not have really been a good witness for the defense after the divorce—which was probably true. Yet, the same judge who denied our Motion for Dismissal granted a continuance to attempt to locate the ex, even though she was known for denying defense requests for more time. I think the sales principle of asking for something big before settling for something smaller helped. So, there is room to ask for a speedy trial dismissal and still demand more time if you lose because the defendant’s case has been prejudiced.
Speedy trial motions requesting a speedy trial should always be filed before the State is actually ready to try their case. Although I favor filing them almost as soon as I am retained and preferably before the first court date, they can also be effective in challenging a continuance. In one case, I filed a Motion Demanding Speedy Trial after I heard the State was having witness problems. Although the missing witness, a truck driver who called 911 to report a drunk driver, was not absolutely critical to their case, he was definitely helpful. Judging that our case was unlikely to be dismissed by an unfriendly judge, I decided to push the State while the witness was on the road. After a fairly heated hearing during which the prosecutor admitted he could proceed without the driver, the judge ordered the State to trial out of concern that once the driver returned we would have another hearing looking for a dismissal. It was the State’s first request for a continuance. Generally, though, the request to get a speedy trial is most useful if the State does not respond. In those cases, it can be a powerful support to a Motion to Dismiss by establishing that the defendant has been diligent in asserting his right to trial.
Deciding when to file a Motion to Dismiss for lack of speedy trial is more complicated. The longer you wait, the greater some types of prejudice—such as financial hardship or incarceration. In theory, it would be appropriate as soon as your client has been sufficiently prejudiced—particularly if there is some incurable harm done to the defendant’s ability to obtain a fair trial. Usually, such harm results from missing witnesses, but it could be anything. For example, the police in one case inadvertently destroyed a dashcam video. We successfully argued that the destruction would not have occurred but for the State’s first continuance, and that because the video was potentially helpful to the defense, the defendant could no longer receive a fair trial.
Given that a delay of only eight months has been found presumptively prejudicial, and many courts would be hard pressed to bring a case to trial in that time, speedy trial motions can be used to attack a large percentage of cases. Although courts have found delays of years (up to five years in one capital murder) to be reasonable, most cases are less complex, allowing for significantly less delay. Defense attorneys should focus on the routine nature of their cases in arguing speedy trial. Often, prosecutors will help bolster the argument while they blame clogged dockets or lack of resources. That argument avoids counting heavily in the defendant’s favor under Barker but also serves to show that there is nothing unusual about the instant case that would justify a lengthy delay. After all, in a docket clogged with DWIs or drug cases, prosecutors should be able to try those cases as a matter of routine. Blaming the system also opens the door to critiques of the prosecutor’s office insofar as they contribute to the systemic problems causing delay. It feels good to remind a judge whose prosecutor has just pointed out how backlogged the judge’s docket has become that maybe all those cases would move faster if the DA’s policy to only offer maximum probation on DWI-2d offense cases was a little more flexible.
This is the true power of the speedy trial argument: It aligns the court’s interests with our own. It is an opportunity to use the criminal justice system’s constant drive to close cases in a way that favors accused citizens. It can also be used to force the State to trial before they are ready. If nothing else, a speedy trial motion on the day of trial can get the State riled up while helping to tell your client’s personal history to the judge and maybe earn your client some sympathy. The right to a speedy trial is an excellent way to keep pressure on the State beyond merely objecting to their requests for continuances. Defense lawyers who are mindful that local practices do not always encompass the full range of situations implicating the right to a speedy trial will find ample opportunities to challenge prosecutors who have come to rely on business as usual.