You’re set for trial in a criminal case.  Speedy trial time runs in a week.  You go over to court, and it turns out the judge is in the midst of a trial in another matter.  So he continues your case — for two months.  What effect does that have on the speedy trial date? 

The 8th District took a look at that question last week in State v. Craig, but didn’t specifically answer it.  It had taken the state from December of 2004 to January of 2006 to bring Craig to trial.  A number of extensions were attributable to the defendant, but there were two that were weren’t:  the court’s sua sponte continuance of the trial date from June 6 until July 26, and from September 29 to October 27, both times because the court was in trial on another matter.

There’s no indication that the court was in trial for the full six weeks or month after the two dates, and that’s highly unlikely; more probably, the court simply continued it to the next “available” trial date, which in practice here in Cuyahoga County means the next date that the court has fewer than five trials scheduled.

Obviously, there’s some limitation to what the court can do here.  RC 2945.72 extends the time for “the period of any reasonable continuance granted other than upon the accused’s own motion,” and there’s case law which holds that continuances for extended periods because of “docket congestion” don’t cut it.  The court in Craig notes that 8th District cases hold that “a sua sponte continuance due to a crowded court docket is deemed reasonable. . . if the defendant fails to object to such court action,” thus posing the inference that it would’ve been deemed unreasonable if the defendant had objected.  I don’t know about that; on the other hand, it seems that there should be some outer limit to a court’s right to extend time under those circumstances.

On the other hand, it’s time for a confession:  my whining, and that of defense lawyers in general, over the erosion of the defendant’s speedy trial rights has a whiff of hypocrisy to it.  Except for the situation where our clients are in jail, we couldn’t care less when the case goes to trial, or if it ever does. 

Much of that is due to a simple understanding of the criminal justice system.  Given that the state has the burden of proof beyond a reasonable doubt, time is the ally of the defense:  witnesses disappear, or they forget. 

But a lot of it is due to our clients, who are in no hurry to face judgment for their alleged sins; to them, “no news is good news” has added meaning.  Many of us have had personal injury clients who seem to call every week to find out what’s going on with their case.  That experience is exceedingly rare in criminal cases.  Frankly, I doubt if I’ve ever had a case where if I’d gone out and told my client, “You’re trial’s been continued for five years,” he’d express anything than utter relief.