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Speedy trial: what's left?

The Ohio Supreme Court apparently decided that since I'm snowed in, it should issue some opinions I can write about.  Thanks, guys.  Three criminal ones, no less, and every one of them going for the state.

First one up is State v. Palmer, yet another in a line of decisions eviscerating the speedy trial statute.  In Palmer, the trial court had held that the defendant's failure to file a response to the state's discovery motion for sixty days tolled the running of the statute for half that time, thus bringing the defendant's trial within the required period.  The 11th District had reversed, holding that none of that time could be counted against the defendant, because the state had never filed a motion to compel.

The Supreme Court reversed that and reinstated the trial court's decision, noting that it had ruled twenty years ago in Lakewood v. Papadelis that filing a motion to compel wasn't necessary for a trial court to impose sanctions for failure to provide discovery.  That is correct, but completely irrelevant.

The Court has made numerous decisions over the past few years holding that various actions of the defendant extend the time in which he can be tried.  Less than five years ago, in State v. Brown, it held that a defendant's filing a request for discovery tolled the time; last year, in State v. Sanchez (which I discussed here), it held the same for a defendant's motion in limine.  And now this.

What all those decisions have in common is the Court's complete failure to analyze how any of those activities affect the statute's only actual concern:  when the defendant is tried.  The obvious purpose of the statute is to ensure that the defendant gets tried within a certain period of time.  The statute correctly anticipates that a defendant may do certain things which delay the trial, and excludes those from the calculation.

What the Court has done is conclusively assume that if the accused does any of those things, it will delay the trial.  In fact, its holding in Brown that "the statute does not require a showing that a motion caused delay before the running of speedy-trial time may be suspended" is directly contrary to the statute, which plainly states that the time is extended only for "the period of delay necessitated" by the defendant's motion.

It's one thing to hold that, say, a motion to suppress will delay a trial, although even that's not the case here in Cuyahoga County, where such motions are heard on the day of trial.  (And in at least one courtroom, the judge will routinely order a jury up before he's even heard the motion.)  But the filing of discovery is usually one of the first things a defense counsel will do, well before a trial date is even set.  There's no logical or empirical basis whatsoever for the belief that the filing of a request for discovery causes any delay in the actual trial.  The only time that happens is when the state is tardy in responding, but that's the state's fault for its tardiness, not the defendant's for requesting the information in the first place.

The decision in Palmer suffers from the same defect in analysis.  This time, the court relies upon 2945.72(D), which extends the time for "any period of delay occasioned by the neglect or improper act of the accused."  There's nothing in the facts of the case to indicate that any delay was "occasioned" by the defendant's tardiness in responding to discovery.  If the defendant had provided a lengthy witness list the day before trial, the state might have been within its rights to request a continuance to investigate the matter more fully, and that delay would have been rightfully charged to the defendant.  But that didn't happen here:  the defendant's response indicated it had no documents and no witnesses.  It probably should have been provided sooner, but there's no indication that it caused any delay whatsoever in the trial, and that's what the speedy trial statute is about.

This case also opens up another can of worms, because it places on the trial court the burden of determining whether defendant's response was "timely."  Obviously, the task of preparing a response to discovery in a crack pipe case is far different from that in a murder case.  Note that the trial court in Palmer split the baby, holding that half the 60-day delay was "unreasonable"; there's little to suggest that his decision was supported by anything other than a desire for Solomonic simplicity.

The good thing about Palmer is that its consequences are easy to avoid.  Note that, unlike the situation in Brown, the time isn't tolled from the point where the state files its request for discovery, but only from the point where the defendant's failure to respond can be called "unreasonable."  If defense counsel files a response within, say, three to four weeks later, it's hard to see any court determining that's unreasonable.  The response can say that the defense doesn't anticipate calling any witnesses or providing any reports, reserving the right to supplement the responses; in probably 80% of the cases, that will be accurate, and if a witness or some evidence you're required to disclose does turn up, you can simply supplement your response at that point.

Palmer's not a good decision from the defense standpoint, but another one the Court handed down yesterday is worse.  We'll get to that one tomorrow, and the other one next week.


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