Strict Construction and Speedy Trial
As anybody who's read my stuff for a while knows, the evisceration of the speedy trial statute is frequently the subject of one of my screeds, as, for example, here and here. The short version (and believe me, you want the short version) is that the Ohio Supreme Court's entire analysis of the speedy trial statute is premised on the assumption that anything the defendant does -- request discovery, file a motion in limine -- will result in a delay of the trial, and thus tolls the time. This runs directly contrary to the language of the statute, which specifically requires that any such action by a defendant have necessitated a delay before that time is chargeable to him.
Well, it looks like my work here isn't done, because along came the 8th District last week and produced a truly mystifying decision on the subject.
State v. Mitchell posed a variety of issues, but the one involving speedy trial was simple. The State had requested discovery on June 27, and the defendant hadn't responded by the time of the trial in September. The Supreme Court had dealt with that question earlier this year in State v. Palmer, holding that the period of time in which the defendant had unreasonably delayed in his response didn't count toward speedy trial. There, the state's request had been filed sixty days before trial, and the defendant had never answered it. The Court held that half of that time was unreasonable, and thus didn't count toward the speedy trial time.
The Mitchell court acknowledges that Palmer held "that a speedy trial calculation is tolled after a reasonable period of time has elapsed for a defendant to respond to a request by the State for discovery." (My emphasis). So then the question should be, what was the reasonable period of time in which Mitchell should have responded to the discovery, right? Wrong; instead of holding that that speedy trial time stops running from the point at which the Mitchell should reasonably have responded to the state's discovery, the court determines that it stopped running from the moment the state filed it.
In justifying its imposition of a different rule from Palmer, the Mitchell court points to a solitary 8th District decision made back in the 1980's holding that the time was tolled upon the filing of the state's request for discovery under RC 2945.72(H), which extends the time for "the period of any reasonable continuance granted other than upon the accused’s own motion."
I'm sorry, but that doesn't work. The statute plainly says "reasonable continuance granted." There was no continuance, reasonable or otherwise, that was granted in this case. That section simply doesn't apply, from its very wording. Mitchell does cite a handful of other cases, but they all deal with the "neglect of the accused" section. What's more, Mitchell ignores State v. Borrero, where just three years ago the 8th District flatly rejected the argument that speedy trial time is tolled as soon the state requests discovery.
I'm not a strict constructionist, except when it comes to applying statutes in favor of the defendant in a criminal case. That's not because of my own predilections, it's because that's what the law says.
And frankly, it avoids a whole set of problems. Where the courts start backtracking and coming up with concepts like "substantial compliance" is where they run into problems. If the rule requires that a waiver of counsel be in writing in felony cases, then it ought to be in writing. If a defendant is required to be advised of PRC for a plea to be valid, then he has to be correctly advised -- "up to five years" doesn't mean the same thing as "five years" for PRC, anymore than it would for a prison sentence. And if a statute extends speedy trial time for a continuance, then there actually has to be a continuance.