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Justice delayed

Back when I started practicing in 1975, there were 34 judges on the Common Pleas bench here in Cuyahoga County, and they handled about 2500 criminal cases a year.  Now, we have the same number of judges, but they handle ten times as many criminal cases.

So here's the way it works.  Let's say you talk to the prosecutor, and the case can't be pled out.  The two of you will walk back to the bailiff, PDA's in hand, and the bailiff will look through the judge's calendar -- a loose-leaf binder with a lined page for each day -- and after the appropriate consulation will write down your case for trial on a particular date, sometimes a few weeks away, sometimes a few months. 

And then, a few weeks or a few months later, you'll go over for trial, and find that (a) one of the four or five other cases scheduled for trial that day will be going forward instead, or (b) the judge is already in a trial on another case that started a day or two before yours.  So you'll talk to the bailiff and get another date at some time in the future -- anywhere from two to six weeks later -- and the bailiff will put together a journal entry saying that your trial had to be continued because the court was already engaged in another matter, and the judge will sign it, and that will be that.

After the 8th District's decision last week in State v. Pirkel, that could change.

The basic facts in Pirkel are quite simple:  he signed for his copy of the indictment on April 4, 2008, and his trial was scheduled for June 10, less than three months later.  It didn't happen, and it didn't happen on the seven other dates scheduled for trial.  Finally, on April 13, 2009, Pirkel filed a motion to dismiss for speedy trial violation.  For whatever reason, the state never responded to it, and the judge granted it on April 30.

I've written before that the relief afforded by the speedy trial statute is largely chimerical:  the courts have held that virtually anything the defendant does -- file for discovery, file a motion in limine, or even fail to respond to the state's discovery -- tolls the time for trial.  The problem in Pirkel is that everything the defendant or state could do to toll the time had been completed by June 11, 2008:  Pirkel had filed for discovery on April 15, the state had responded on May 5 and had filed its own discovery request on that date, which Pirkel answered on June 11. 

So what happened after that?  Well, on five separate occasions, the trial was continued because the judge was engaged in another trial; on three other occasions, because the judge was unavailable.  As the court notes,

a continuance due to the trial court’s engagement in another trial is generally reasonable. . . However, a continuance because the court is engaged in trial may be rendered unreasonable by the number of days for which the continuance is granted.

And that's the problem:  the court found that the eight continuances, for a total of 227 days, were simply unreasonable.

Pirkel leaves one big question unanswered:  Can an individual continuance be "unreasonable"?  The continuances for being in trial were for 28, 43, 22, 23, and 21 days; for unavailaility 29, 19, and 42 days.  I can see an appellate court feeling that a seven-week continuance is on the outer boundary of what might be deemed reasonable, but I don't think a violation would have been found if that had been the only event.  I think it was the combination of continuances that did the trick.

I don't think the Common Pleas judges here are going to read Pirkel that narrowly.  The Speedy Trial Screwup and the Probationee Gone Wrong are the two primary nightmares for a judge, all featuring the same scenario:  the judge goes out to pick up the morning fishwrap, and there's the headline, in type size normally reserved for news about the beginning or end of wars, telling of some horrific crime, the details which would have been too gruesome for inclusion in Saw V.  And there above the fold is a picture of the perpetrator, with the caption informing everyone that he was allowed to commit his dastardly deed because the judge <pick one> put him on probation instead of locking him up/screwed up and blew the speedy trial statute.

For that reason, trial courts here take inordinate precautions to avoid speedy trial running.  One of those precautions is to sign journal entries that lie.  I have gone to pretrials where the prosecutor didn't have his file, so the pretrial had to be continued.  "At Defendant's request," I find out when I check the journal entry.  Prosecutor didn't get discovery to me, didn't get the file marked, didn't whatever?  No matter; it turns out I must have requested the continuance so that the prosecutor could perform his job.  I even had a pretrial continued "at Defendant's request" when it had been cancelled because the Justice Center was closed due to a water main break. 

So it's my guess that trial judges aren't going to read Pirkel as standing for the proposition that you can't grant eight -- or five or six -- continuances because you're in trial on another matter.  They'll err on the side of caution.

This will have an unintended consequence -- unintended by defense lawyers, that is -- of actually making it more likely that a defendant will get a trial date at least within hailing distance of that required by the speedy trial statutes.  Why is that unintended?  Because here's the dirty little secret among defense lawyers; other than when our client's in jail, we're in no hurry to try a case.  Time almost invariably invades the defense.  It's the prosecution which bears the burden of proving its case beyond a reasonable doubt, and reasonable doubt's a lot easier to find when witnesses are testifying about an event that happened a year ago, as opposed to one that happened a few months prior.  That is, if witnesses are even still around.

And, in truth, speedy trial doesn't mean diddly to our clients, either.  I haven't had a one who would've mouthed a word of protest if I'd come out of a pretrial and told him, "Bad news.  We're not going to be able to try your case for another five years."

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