Editor’s note: This piece from the SCOV Law Blog is by David Rangaviz.
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Today’s case fractures the SCOV over the meaning of the Sixth Amendment right to a speedy trial, and the proper method that courts should use to assess whether that right has been violated.
Defendant was arraigned on Sept. 3, 2008. (Start your clock.)
Two months later, in November 2008, the parties set a discovery schedule in which trial was set for June 2009. In the intervening months, the parties investigated the case, interviewed witnesses, and took depositions. Basically, they prepared for trial.
When June rolled around, they weren’t quite ready. So the case was set for a jury draw in August. In the period between June and August, however, defendant’s attorney developed more witness leads, so he requested that the case be further delayed.
Defendant then took matters into his own hands. He filed a pro se — meaning “for himself” (without counsel) — motion to dismiss the charges on the ground that his right to a speedy trial had been violated. The court did not immediately rule on this motion, so the underlying criminal case continued.
Defendant also requested new counsel, which caused further delays as his new attorney brought himself up to speed. The trial was finally held on March 17-18, 2010, which resulted in a mistrial due to a hung jury. (Defendant was later convicted in a July 2010 trial, but he did not claim the March to July period violated his speedy trial rights, so the SCOV (and I) will ignore this.)
Stop your clock!
Sept. 3, 2008, to March 17, 2010. That’s 560 days between arraignment and trial, or one year, six months, and 14 days.
Let’s put that in perspective, shall we?
• You could watch the extended cut of the entire Lord of the Rings movie trilogy (or, if you prefer, all six Star Wars movies) about 1,120 times during the delay.
• The winner of the 2013 Iditarod could cross Alaska about 62 times on a dogsled over the course of defendant’s case.
• The delay was almost eight times longer than Kim Kardashian’s marriage to Kris Humphries (72 days).
• Defendant’s case took about three months longer than the entire O.J. Simpson murder case, from arraignment to verdict (470 days).
• Finally, the case lasted about one month longer than Michael Jordan’s mid-career “retirement” to play baseball (528 days).
Is this delay a violation of defendant’s constitutional right to a speedy trial?
The SCOV unanimously says no, and thus affirms the conviction. But the SCOV divides 3-2 over its reasoning — an apparent disagreement between a “one size fits all” and the “case-by-case” approach to speedy trial questions.
Three justices believe in the more “one size fits all” approach. Writing for the majority, Justice Skoglund (joined by Justices Robinson and Dooley) cites a four-factor balancing test, taken directly from a 1972 Supreme Court opinion. The factors are:
(1) length of delay,
(2) reason for delay,
(3) extent to which defendant asserted his speedy trial right, and
(4) prejudice (if any) to defendant from the delay.
The first step in the analysis hinges on factor one — the length of the delay. A court must begin by assessing whether the length of delay is “presumptively prejudicial.” If so, then it proceeds to the other three factors. If not, then the case is over and no speedy trial violation exists.
So that’s the disagreement: three justices adopt a rigid first step in the analysis by adherence to firm deadlines, while two justices prefer a more ad hoc, context-specific threshold inquiry.
According to the majority, the 18-month delay in this case is a sufficient trigger. This conclusion is based in large part on previous SCOV decisions which applied similar scrutiny to even shorter delays.
The majority quickly plows through the remaining factors, all of which weigh against defendant. The delay occurred largely because the rules of criminal procedure contemplate many months of discovery in every criminal case. Any additional delays here arose from the fact that multiple witnesses had to be called and new counsel was appointed. Both reasons were attributable to defendant. As for defendant’s assertion of his right to a speedy trial, he did so only after much of the delay and in a single motion to dismiss. He never opposed the extensive discovery nor did he oppose his counsel’s motion to withdraw or the delay that would arise from withdrawal. Finally, defendant failed to specify any prejudice that followed from the delay (i.e., how it actually hurt him during his trial). The majority votes to affirm the conviction on this basis.
Justice Burgess, joined by Chief Justice Reiber, concur but write separately to express disagreement with how the majority applied step one — the length of the delay. The concurrence would follow what is, by its description, “a different and more efficient route.” Rather than adhere to the majority’s step one approach (“rigid timeframes entirely divorced from the circumstances”), they would instead “restore to this threshold inquiry the context contemplated by” the Supreme Court in its 1972 doctrinal decision.
According to the concurrence, the first step of the inquiry should be more a matter of whether there has been “untoward delay.” At the time that defendant filed his motion to dismiss, the case had proceeded along the “normal, orderly pretrial process.” Since “[n]othing in defendant’s motion to dismiss or the record before the trial court raised any factual dispute or suggestion that the delays . . . were attributable to any cause other than routine pretrial proceedings, or that the State had failed to prosecute the matter with diligence,” the 560-day delay was not “presumptively prejudicial.” As such, he would prefer to have “rejected the claim at the threshold” of the first step in the analysis, without proceeding to the balancing of the other factors.
So that’s the disagreement: three justices adopt a rigid first step in the analysis by adherence to firm deadlines, while two justices prefer a more ad hoc, context-specific threshold inquiry.
I’m left scratching my head.
It seems that the concurrence’s approach, rather than being any more “efficient,” really just imports the latter three factors into the first step of the analysis. Instead of looking solely at the “length of delay,” as the first factor demands, the concurrence clearly peeks into the other three: the reasons for the delay (“routine pretrial proceedings” as well as “defendant’s expressed dissatisfaction with his assigned counsel”), the extent to which the defendant asserted his speedy trial right (“defendant agreed to many of the delays and never expressly demanded that he proceed to trial”), and prejudice (“nothing can be identified as unduly postponed, made late, restrained, put off or otherwise hindered”).
The concurrence does this while, simultaneously, quoting the very Supreme Court doctrine that would seem to prohibit such a mode of analysis: “The length of delay is to some extent a triggering mechanism. Until there is some delay that is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” That language suggests a more mechanical application rather than an analysis of how the delay arose.
This leads me to wonder: What if the concurrence had found this delay presumptively unreasonable? What analysis would have been left to do? By importing the other three factors into the first step, the concurrence renders the remainder of the “test” a nullity.
In other words, the concurrence seems to protest just a bit too much, and the “disagreement” is really much ado about nothing. Functionally, I fail to see the difference. The two roads not only lead to the same place, but they’re also essentially the same road, neither one any faster or slower. Of course, the concurrence argues that its route is quicker, but the concurrence gets bogged down in the very same factors that occupy the majority. It just does so at the first step rather than the second.
Unfortunately, delays have become the norm in many criminal courts. (I’d point you toward an excellent recent series in the New York Times available here about the problem in Bronx courts.) As caseloads increase and resources shrink, speedy trial claims will inevitably become commonplace.
It would be best if the SCOV could reach a consensus in how to go about dealing with these cases, so as to provide clear guidance to the state trial courts that have to implement their decisions. For the sake of clarity, the majority’s approach — applying a fixed threshold deadline — appears to make sense. But, again, the real difference between the two camps is difficult to discern. Disagreement for disagreement’s sake, it seems.
What a collegial court: Even when the SCOV is divided, they agree.