Yes, Virginia...
...there is a speedy trial statute, and like Christmas, a reversal for violation of it comes but once a year. Or so it seems. Well, last week was the time of the season up here by the lake. In State v. Byrd, the 8th District addressed a plethora of speedy trial issue, among them...
The defendant's demand for discovery. In 2002 in State v. Brown, the Supreme Court held that a demand for discovery, or even a request for a bill of particulars, was a tolling event under the speedy trial statute. Subsequent decisions, though, have indicated that the time for response isn't open-ended; the State can't keep the time from running simply by not responding to discovery. Last year, in State v. Barb, the 8th District confronted a situation in which the State had taken sixty days to respond; the court there held that thirty days of that was reasonable, but the rest against the speedy trial time. Byrd elevates dictum to scripture, citing Barb for the proposition that "this court has interpreted the reasonableness requirement of the rule to mean 30 days." The bottom line: in the 8th District, at least, any delay in responding to the defendant's discovery request beyond 30 days is going to count against speedy trial.
The State's demand for discovery. Two years ago, in State v. Palmer, the Supreme Court held that the defendant's failure to respond to discovery could also toll the time, at least to the extent that a delay in response is "unreasonable." As I explained at the time, this was a bad result, but it was made infinitely worse by the 8th District's subsequent conclusion that the time is tolled from the point where the State requests discovery, on the absurd theory that the request constitutes a "continuance" requested by the defendant. Perhaps spurred by my splenetic discussion of the initial decision here, the 8th District reconsidered, and came to the same conclusion in at least one other case. Byrd doesn't mention those cases, and in a footnote quotes extensively from Palmer's language about the time being tolled only for the period in which the defendant "unreasonably" delays responding. That's as good as it gets, though; the court avoids the issue entirely by dealing with
The effect of reindictment. The State reindicted Byrd, for reasons not made apparent in the record, on January 28, and dismissed the old indictment a week later. The State argued that defendant's failure to respond to discovery tolled the time, but the court found that the duty to respond didn't "carry over" to the new indictment.
The court's holding here is suspect; the only rationale it offered was that "nothing [in Palmer] holds that the speedy trial clock is tolled from one case to another. . ." but that's because there was no occasion for the Palmer court to consider the question, since the defendant there hadn't been reindicted. And it raises several interesting questions. Normally, the time is tolled if the defendant files a motion, such as a motion to suppress. Does the tolling stop if the defendant is reindicted? Since reindictment has become much more common in the post-Colon era, this is a question that's going to be answered soon.
Running a sloppy docket. The most likely explanation for the court's decision is that it simply felt the judge let the case get away from him. The court continued the case on its own three times. The first was for six days, and the entry gave as the reason "Court engaged in trial" on that date. The courts have long held that in order for a sua sponte continuance to toll the speedy trial time, the entry must indicate the reasons requiring the continuance. This entry, Byrd finds, was sufficient. Not so the entry of February 20, which cancelled the trial on that date with no explanation and reset it for March 3. Even worse was what happened on March 4:
The bailiff, outside the presence of the judge, called the parties into the courtroom on the record to discuss the potential for a plea, which the defendant declined. The docket indicates that on that date, the bailiff surreptitiously cancelled the trial, this time continuing the matter for a third time [to] March 18, 2008.
Although the entry of that continuance claimed that it was at "defendant's request," the court notes that the record indicated Byrd was ready to go to trial on the 4th, and notes further that
the ultimate reason for this continuance was revealed in the record by the trial judge himself on March 18, 2008, when he indicated that the court was on vacation on March 4, 2008.
And that's simply not going to cut it.
There's some quibbles to pick with Byrd. It would have been better if it had clarified the question of whether time is tolled from the point where the State demands discovery, or only from the point where the defense "unreasonably" fails to respond to it. The effect of the reindictment should have been dealt with more substantively. The court reviewed the speedy trial issue for plain error, on the grounds that "Byrd's counsel never objected to the alleged discovery violations at the trial court level." It seems that the motion to dismiss on speedy trial grounds, which Byrd filed pro se, would've been sufficient to preserve that.
But Byrd provides guidance on at least two issues. First, for prosecutors and defense attorneys: a clear guideline of 30 days by which the State must respond to discovery. And for judges: the next time you go on vacation, it's probably a good idea to remind your bailiff not to conduct on-the-record plea negotiations in your absence.
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