Your Right to a Speedy Trial – and The Effect of the COVID Pandemic

October 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

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:

  1.  The length of the delay;
  2.  The reason for the delay;
  3.  The time and manner in which Defendant asserted their right;
  4.  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.

COVID Delays

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.

Stay Tuned

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.

 

 


Your Right to a Speedy Trial

June 20, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Being accused of a crime sucks.

The framer’s of the constitution knew this which is why the U.S. Constitution guarantees our right to a speedy trial in the Sixth Amendment. Texas also guarantees the right to a speedy trial in Texas Code of Criminal Procedure section 1.05.

If the State violates your right to a speedy trial — the Judge can dismiss the case. Your right to a speedy trial exists on any case whether it be DWI, drugs, marijuana possession, assault, theft or other serious felonies.

Speedy trial law can be extremely complicated believe it or not. I’ll avoid they hyper-technical legalese for the sake of easy reading but you should understand in this area there are no real bright-line rules that will get a case dismissed. Rather, a denial of a right to speedy trial is viewed by the judge and the Court of Appeals on a sliding scale which give the trial judge mountains of discretion.

The seminal U.S. Supreme Court case which still serves as the corner-stone for speedy trial law is Barker v. Wingo, 407 U.S. 514 (1971). In that case, the Supreme Court laid out four general factors as part of the court’s analysis of whether denial of the right to a speedy trial was violated. Those factors include (but aren’t limited to), (1) the length of the delay; (2) the reason for the delay; (3) defendant’s assertion of their right to a speedy trial; and (4) the prejudice to the defendant.

Speedy trial issues usually arise in cases where the judge or the prosecution have continually put a case off for whatever reason — usually either witness problems or a jammed docket. Sometimes they arise where the police made an arrest and the case simply doesn’t get prosecuted over a long period of time for whatever reason (maybe the police lost the police report or some prosecutor dropped the ball).

A speedy trial issue is usually not the first-line of defense in a criminal case. In cases where there the case just never seems ready to go to trial, a good criminal defense lawyer will know how to build a steady record showing the defendant has continually been prepared to try the case and that they have been active in asserting their demand for speedy trial. This will help maximize your chance for a dismissal based on speedy trial violations.

 

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about your own specific case you should consult an attorney.