Speedy Trial - Carryover prosecutions
The Ohio Supreme Court handed down a couple of criminal law decisions in the past few weeks. One has relatively narrow impact; the other could have substantial significance. I'll talk about the latest speedy trial case today, and a decision on the mens rea requirements in indictments tomorrow.
The first is State v. Blackburn, which deals with how the speedy trial statutes affect serial prosecutions, i.e., either where the prosecution dismisses an indictment, and then reindicts the defendant, or where it subsequently adds new charges arising out of the same facts. The law's pretty clear that if a defendant's indicted, the charges get dismissed, and then the prosecution refiles the indictment, speedy trial carries over: all the time run up during the first case is carried over and applied to the second. (Needless to say, if additional charges are simply added, the speedy trial clock continues running from the time of the original arrest.) This applies regardless of whether the new indictment is the same as the old one, as long as the new indictment arises out of the same incident, and the state had sufficient knowledge to bring the charges at that time.
The question, though, is what happens if the defendant has waived time, or filed motions which toll the time, in the first case: does that carry over to the second?
The first time the court addressed that question was in State v. Adams, back in 1989. In that case, Adams had been charged with DUI under one section of the statute, then subsequently with the same offense but under a different section. In the first case, he'd waived time to a specific point on several occasions, but the court held that these didn't carry over. Why? Because for a waiver to be valid, it "must be done knowingly, voluntarily, and intelligently." Since the charges against Adams in the second case weren't the same as in the first case, his waiver in the first couldn't meet that test.
The issue next came up in 2000, in State v. Homan. In that case, the defendant was originally charged with DUI, and filed a motion to suppress. The state subsequently added a charge of child endangering, based on the same facts, but the Supreme Court held that the tolling caused by the filing of the motion to suppress didn't apply to the subsequent charges. Again, the defendant's unawareness of the new charges was critical:
When a defendant is unaware of the precise nature of the crimes charged, he or she cannot make informed and intelligent tactical decisions about motion filings and other matters.
So now we get to Blackburn. The defendant had been arrested for "illegal conveyance of weapons or prohibited items onto the grounds of a detention facility or institution" in December of 2004. The charges were dismissed five days later. He was indicted on the same offense in February of 2005, and after several continuances requested by the defense, mainly to get new counsel, the prosecution dismissed that case in December of 2005. It then reindicted him, this time for trafficking in drugs, in February of 2006.
The trial court tossed it, and the appellate court affirmed, finding that the delays in the previous case didn't carry over into the present one, based on Adams and Homan. The Supreme Court reached a different result, making a galliant, if eventually unconvincing, attempt to distinguish both of the earlier cases.
The Blackburn court first drew a distinction between waiver and tolling. In Adams, the defendant had waived time to a specific point; in Blackburn, the defendant had filed motions which tolled the time. The effect was the same -- the running of the speedy trial was suspended -- but the outcome is different: The time tolled by Blackburn's motions are counted against him, while Adams' waivers are not counted against him.
The distinction between waiver and tolling makes some sense, I suppose, although that distinction is undercut by the analytical error in Adams: in that case, the court applied the test for waiver of a constitutional right to the waiver of a statutory right. More troubling, though, is the Blackburn court's treatment of Homan. It's difficult to reconcile Blackburn and Homan, and the court makes a half-hearted stab it:
Unlike Homan's tactical decision to file a motion to suppress, Blackburn filed the motion to continue the trial to allow his newly hired counsel time to prepare.
Why one is a "tactical" decision and the other isn't is not explored further. More problematically, Blackburn winds up overruling Homan without ever saying so. Here's the syllabus from Homan:
When a criminal defendant files a pretrial motion and the state later files against the defendant additional, related criminal charges, R.C. 2945.72(E) does not extend the time within which the defendant must be brought to trial on those additional charges.
And from Blackburn:
In calculating the time within which a criminal defendant must be brought to trial under R.C. 2945.71, periods of delay resulting from motions filed by the defendant in a previous case also apply in a subsequent case in which there are different charges based on the same underlying facts and circumstances of the previous case.
The reference to 2945.71 in the latter case is somewhat misleading; although that is the general statute on speedy trial, "periods of delay resulting from motions filed by the defendant" are governed by -- you guessed it -- 2945.72(E).
So what's a poor lawyer (or judge) to do? The net effect of Blackburn is to continue the court's trend of turning the admonition that the speedy trial statutes are to be construed strictly against the state on its head. In fact, the court expressly states that the "the public's interests. . . in the prompt adjudication of criminal cases" has to be balanced against the interest "in obtaining convictions of persons who have committed criminal offenses against the state." While that may be true, there have been very few cases in the past decades which indicates that this court places much if any importance on the public's -- and the defendant's -- interest in prompt adjudication.