Speedy trial and implied waivers
You're sitting in chambers with the prosecutor and the judge. The bailiff brings in calendar, the judge leafs through the pages, settles on one, runs his eye down it and announces, "Okay, final pretrial will be on February 7th, and trial will be a week later, February 14th. Those dates clear with you guys?" You sit there for a moment, waiting for the prosecutor to point out that speedy trial time runs at the end of January. Instead, she says, "That's fine with me, judge." You think it over, then pull out your iPhone and poke the calendar icon. After a minute, you look up, smile brightly, and say, "Works for me, too, judge," a small part of your mind darting off to contemplate just exactly how pissed the judge is going to be with you when you walk in with the motion to dismiss on the day of trial...
That was the scenario contemplated by the assembled justices and lawyers during oral argument three months ago in State v. Ramey. The outcome could've been worse; while Ramey's attorney insisted he would be committing malpractice by telling a judge not to set a particular date because your client's speedy trial time runs before that, the contention was not welcomed by the judges, and there were some dark murmurings about the defense lawyer being "an officer of the court."
But last week the decision came out, and lo and behold, not only does it come down on the side of the defendants, but it clarifies the respective roles of the parties, especially the defense attorney, in asserting or failing to assert the defendant's right to a speedy trial.
First, the facts. On October 7, 2009, Ramey and his co-defendant, Keeton, were arrested for robbery. Keeton made bond; Ramey didn't, and remained in jail throughout the proceedings. That meant his time for trial was counted as 3 for 1: the State had 270 days from October 7, 2009, to try Keeton, but only 90 to try Ramey.
The court held a pretrial on December 9, and was told by counsel for both defendants that they intended to file motions to suppress and to sever the trials. The court scheduled a hearing on the motions for January 5. Keeton filed his motions the day after the pretrial. Ramey didn't file any. The hearing on Keeton's motions was held on January 5, and they were denied. The next day, the court issued a scheduling order noting that "counsel have indicated their respective availability for trial on February 1, 2010." That February 1st date was 117 days after Ramey's arrest.
This all gets put into the grinder, and what comes out is this:
- A defendant's speedy trial time is not automatically tolled by a motion filed by a co-defendant.
Speedy trial time is tolled for any motion filed by a defendant, and the State argued that the time was also tolled if a co-defendant filed a motion. That was also the basis for the 2nd District affirmance of the denial of Ramey's speedy trial motion. But while the Federal speedy trial statute, and that of several other states, specifies that the co-defendant's motion tolls the time, there's nothing in Ohio's speedy trial statutes which says that. The extensions of the speedy trial time contained in the statute are to be "strictly construed," the court's held on previous occasions, and so on this one it is "compelled to conclude that a co-defendant's filing of pretrial motions does not automatically toll the time in which a defendant must be brought to trial."
- Forget what the defendant has to say about all this.
One of the Big New Things making the rounds inside the jail is a pro se motion by the defendant declaring that he is demanding his speedy trial rights, objecting to any further continuances, specifically instructing his attorney not to request any continuances on his behalf, and withdrawing his consent to any continuance if his attorney does request one. Well, that's nice, but it's entirely meaningless. The court's held in previous cases that an attorney has the right to request a continuance, and even waive a defendant's speedy trial rights, even over objection of the defendant. If the attorney thinks he needs more time to prepare for trial, that's his call, not the client's.
- A waiver has to be express, and on the record
The Ramey court relies on its earlier decision in State v. King, which had facts that were worse for the State: in King, there was a legitimate question as to whether the attorney had agreed to waive the speedy trial time. No matter, said the court there; a waiver, to be effective, "must be expressed in writing or made in open court on the record." That wasn't done in King, and it wasn't done in Ramey, so that's the end of it; there's no such thing as an "implied waiver."
The court doesn't directly answer the question of what a defense lawyer's duty is in the situation I described at the top of this post, but it gives an indirect one. If you're sitting there and the judge gives a date beyond speedy trial time, and there's no such thing as "implied waiver," that means your client's going to get off if you keep your mouth shut. I think speaking up in that instance leaves you open to a disciplinary complaint. You may have a duty as an officer of the court, but that duty doesn't include doing their job.
- That doesn't get your client completely off the hook.
So that means Ramey walks, right? Wrong. The speedy trial clock is automatically tolled by any motion filed by the defendant, but it's also tolled for "the period of any reasonable continuance granted other than upon the accused's own motion." So the court remands the case back to the 2nd District to determine whether the continuance here was reasonable.
If you're like me, you're saying "what continuance?" This wasn't a case where the trial date came, and the court was engaged in another trial, or the prosecutor was sick, so the trial had to be continued to another date. Here, the only trial date set was beyond the speedy trial time, and the Ramey court's decision to treast the "trial court's discretion to extend the trial date beyond the statutory limit" as a "continuance" seems a stretch. Not that it matters:
Ideally, when sua sponte granting a continuance under R.C. 2945.72(H), the trial court must enter the order of continuance and the reasons therefor by journal entry prior to the expiration of the time limit prescribed in R.C. 2945.71 for bringing a defendant to trial.
There are two requirements here: the entry continuing the date beyond the speedy trial time has to specify the reasons for the continuance so as to allow a reviewing court to determine whether the continuance was "reasonable." And, the entry and the reasons have to be contained in a journal entry predating the expiration of the speedy trial time. In short, "trial continued" doesn't cut it; "trial continued because court is presently in trial" does, but not if the entry is made after the expiration of the time. It's hard to see how the entry in Ramey's case is going make the grade. The court makes a point that "the determination of reasonableness must be made on the existing record," and there's simply nothing in the record to show why it was necessary to try Ramey's case after speedy trial time had run.
So I'd expect the 2nd District to come to a different decision this time around, and kick Ramey lose. I'm also betting that within the next two years the statute will be amended to allow tolling for a co-defendant's motion. You read it here first.