By Criminal Defense Lawyer Jeremy Rosenthal
This could probably be a full blown law review article but I’ll stick to good blogging etiquette – long enough to cover the basics and short enough to keep interest.
These days I sound like a broken record with my clients. “We’re not able to have your jury trial yet. We need to reset your case again. Sorry.”
Many of my clients don’t want a speedy trial and many are happy to put off their prosecution indefinitely. Everyone is different and their circumstances are different so I can see it both ways. The Constitution guarantees a right to a speedy trial for no other reason that it takes away a possible prosecutorial ploy to ruin someone’s life by just maintaining a cloud of suspicion over a person without ever having to prove their case.
I find courts and prosecutors still struggle with their own understanding of what a speedy trial is or isn’t. Unfortunately my experience is Courts and prosecutors generally don’t take speedy trial issues very seriously and only see it as an arbitrary escape hatch for a criminal to avoid responsibility. Our challenge is to show the Court why the Constitution means what it says and says what it means about speedy trials in every case.
How Speedy Trial Works under the Law
The cornerstone case for speedy trial for both State and Federal purposes is called Barker v. Wingo. That case weighs four separate factors in determining whether there has been a violation of someone’s rights to a speedy trial.
The Barker v. Wingo Factors (Quickly)
The Court Weighs:
- The length of the delay;
- The reason for the delay;
- The time and manner in which Defendant asserted their right;
- The degree of prejudice Defendant has suffered because of the delay.
Prejudice suffered can be anywhere from the natural stress and anxiety which comes from being criminally prosecuted to things which more directly impact the case such as witnesses being more difficult to find or memories about an event fading.
Another big factor is the reason for the delay. Courts typically try and calculate who is at fault for how much of the delay. In Barker v. Wingo, the accused was a co-defendant in a homicide. The prosecution wanted to convict the other person first so they sought 13 or 14 continuances on Barker’s case for strategy reasons.
We won’t know how the Courts will construe speedy trial delays under Barker for the purposes of the pandemic. I don’t think they can blame the defense, obviously, for the delay – but the question is whether the Courts will attribute the delays to the government because of of public safety? Could courts turn around and try to blame Defendant for asserting rights such as the right to confront witnesses in person – or not having a judge trial instead of a jury trial? It’s hard to know.
In 2021 and almost certainly beyond – we are looking to have a major backlog of court cases which will need to be resolved. Courts have often been dismissive of speedy trial issues but the issue may have a resurgence.
What Lawyers Should be Doing Now
There is really no reason a lawyer shouldn’t file a speedy trial demand in each of their cases set for trial during the pandemic. Those speedy trial demands can always be waived, but it helps establish the third prong – that the defense is trying to assert their right early in the process.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.