You’re handling a criminal case, and you’ve filed for discovery.  The prosecutor responds, and also makes a reciprocal request for discovery from you.  We know that speedy trial time is tolled until the prosecutor responds to your request; is it also tolled until you respond to his?

I’ve run into several judges and defense lawyers recently who believe that the Ohio Supreme Court’s decision in State v. Palmer earlier this year means that it does.  That’s not the case. 

I discussed Palmer back in February when it first came out, and my post here gives a more complete explanation of the case, and a discussion of why the Ohio Supreme Court’s analysis of the speedy trial statute is screwed up.  The shorter version, which I’ll give here, is that the statute, specifically 2945.72(E), tolls the time if the defendant files a motion.  That was the basis for the Court’s earlier holdings that the filing of a request for discovery, a motion to suppress, or even a motion in limine, tolled the time until the prosecutor responded to the discovery or the court ruled on the motion.

Obviously, though, the state’s request for reciprocal discovery isn’t a motion filed by the defense, and thus can’t trigger the tolling provisions of that subsection.  What the Court held in Palmer was that an unreasonable delay in responding to the state’s discovery was a delay occasioned by the “negligent or improper act of the accused” under 2945.72(D).  What had actually transpired in Palmer was that the defense had never responded to the state’s discovery request, which was filed two months before trial.  The lower court determined that 30 days of that time constituted an “unreasonable” delay, and thus the speedy trial time was tolled for that 30 days.  The Supreme Court agreed.

In short, if you respond to the state’s discovery within a “reasonable” time, none of that time is tolled; it’s only when you unreasonably delay in responding that the clock stops running again.

Needless to say, Palmer doesn’t define what’s an “unreasonable” time, and that will might vary depending on the circumstances.  My guess is that it’s going to be tough for the state to argue that anything less than three or four weeks is unreasonable, and if you get your response in within that time frame, there shouldn’t be a tolling problem.

A couple of points here.  First, many of us have a tendency to forget about the state’s discovery request.  Don’t.  File something, anything, even a simple response saying you don’t have any documents or test results and don’t plan on calling any witnesses.  If that changes, you can always supplement your response.  But a speedy trial violation is a get-out-of-jail free card; unlike many other claims of attorney misfeasance, no one has to spend any time figuring out how a screw-up there might have affected the outcome.  If you blow a speedy trial claim because you neglected to file a response to the state’s discovery, chances are you’re going to become much more familiar to your malpractice carrier than you want to be.

Second, it’s real hard to get a speedy trial violation nowadays, given the numerous Supreme Court decisions which have basically gutted the statute.  But one good way to get a violation is for everybody to think that the time is tolled, when it’s not.