Results matching “speedy trial delay”
Friday Roundup
Reason No. 38 why I don't practice divorce law. There must have been some sweaty palms over on the 3rd floor of the Lakeside courthouse, home to the Cuyahoga County Domestic Relations Division, in the wake of the Ohio Supreme Court's decision the other day in Disciplinary Counsel v. Sargeant. Sergeant was a judge of the Sandusky County Common Pleas Court, and was publicly reprimanded by the Supreme Court for "unnecessary and unjustified delay" in ruling on six separate cases. Several divorce cases had dragged on for two years.
Well, if Sergeant was on the bench here, his nickname would be "Speedy." As chronicled by the Plain Dealer, the town's favorite fishwrap, divorce cases here can languish for as long as four years. (Actually, longer; one lawyer in my office was upset that he wasn't interviewed for the article, claiming that he has the longest unresolved case: the complaint was filed six years ago, and the final hearing was just continued for the seventh time.)
After the appearance of the newspaper article, various excuses were proffered and promises of correction made. The decision in Sergeant might provide a further prod in that direction. Meanwhile, word is that plans to officially rename the Domestic Relations Court "The Land that Time Forgot" have been put on hold.
More on sex offender residency restrictions. A study was published a couple of months back in the Journal of Criminal Justice and Behavior with the imposing title, "Does Residential Proximity Matter? A Geographic Analysis of Sex Offense Recidivism." From the abstract:
Examining the potential deterrent effects of a residency restrictions law in Minnesota, this study analyzed the offense patterns of every sex offender released from Minnesota correctional facilities between 1990 and 2002 who was reincarcerated for a new sex offense prior to 2006. Given that not one of the 224 sex offenses would have likely been prevented by residency restrictions, the findings from this study provide little support for the notion that such restrictions would significantly reduce sexual recidivism.
Forum-shopping. Overlawyered points us to an article about the "Texarkana triangle, labeled "'the third worst judicial hellhole' by the American Tort Reform Foundation for its 'plaintiff-friendly' decisions in patent infringement lawsuits." That friendliness apparently extends to other torts, too:
Within the United States, motor vehicle product liability cases consist of only 0.18 percent of all lawsuits filed since 2004. In Texas since 2004, those cases are 0.72 percent of all Texas lawsuits. So since 2004, Texas has received 28 percent of all U.S. motor vehicle product liability cases.But what is most significant is that of those Texas cases, 61 percent are filed in the Eastern District of Texas. That means that of all the U.S. motor vehicle product liability cases, 17 percent are being filed in the Eastern District of Texas.
The two major cities in the Marshall Division - Marshall and Texarkana -- have a combined population of around 60,000.
Scheduling matters. Because of the holiday, there'll be no post here on Monday. I'm getting a new grill on Saturday (a Weber Genesis EP-310), just in time to have our biannual spare rib feast. (The other occasion is on Labor Day.) I'll be back with the Case Update on Tuesday, and on Wednesday I'll talk about one of those cases, the Supreme Court decision last week affirming a 139-year sentence for three home robberies, where the trial judge had given the defendant maximum consecutive sentences on a plea. See you then.
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.
Case Update
Today's menu features Virginia v. Gray, a notable US Supreme Court decision on search and seizure, which I'll discuss in more detail tomorrow. Closer to home, their Ohio counterparts handed down Columbus v. Kim, upholding that city's noise ordinance against a claim of unconstitutionality, concluding that whatever one's standards of "unreasonably loud" was, it was met by a dog barking for an hour and a half so loudly that it could be heard over a running lawnmower. The court also handed down another decision in a speedy trial case, with a result that's sure to astonish you. Yep. Shocking, I tell you. Shocking. We'll talk about that on Wednesday, along with another case that came down a few weeks back.
On to the courts of appeals...
Case Update
Nothing of significance in the US Supreme Court this week. Down in Columbus, in addition to State v. Sarkozy, which I discussed on Friday, the Ohio Supreme Court decided Pruszynski v. Reeves, a decision significantly clarifying the law on prejudgment interest. Although a number of courts have decided that a hearing is only required if the trial court is going to grant interest, the Supreme Court says no: you've got to hold a hearing either way. The trial court does have some latitude in exactly what type of hearing to conduct, but there's got to be one. And in State ex rel Stucco Inc. v. Ind. Comm., the Court holds that even if an employee is validly terminated, if he's on temporary total disability at the time, he's entitled to continue collecting it.
On to the courts of appeals...
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.
Case Update
The big legal news out of the nation's capital was that the Supreme Court agreed to hear the case challenging the District of Columbia's law banning possession of handguns. How Appealing has a bevy of news articles on it, and, if you're really into this sort of thing, you can check out the treatment of it on ScotusWiki (yes, that does exist; I'm not making it up), which has links to all the briefs and other documents.
Closer to home, the Ohio Supreme Court finally handed down some decisions. One of them was State v. Jones, in which the Court ruled that a trial judge didn't have to explain to a misdemeanor defendant that a plea of guilty waived his right to appeal a motion to dismiss the indictment. The actual issue was exactly what is meant by Criminal Rule 11(B)'s requirement that a judge must advise a defendant of the "effect" of a plea. What's interesting is that it was a 4-3 decision, with Justice O'Connor joining Moyer and Cupp in dissent. Moyer especially has long urged a strict and literal adherence to the rules, and it may be he's getting some converts to that position.
On to the courts of appeals...
Discovery and Speedy Trial
You're handling a criminal case, and you've filed for discovery. The prosecutor responds, and also makes a reciprocal request for discovery from you. We know that speedy trial time is tolled until the prosecutor responds to your request; is it also tolled until you respond to his?
I've run into several judges and defense lawyers recently who believe that the Ohio Supreme Court's decision in State v. Palmer earlier this year means that it does. That's not the case.
Speedy trial for prisoners
Back about six years ago, one of my favorite judges figured he'd do me a favor, and assigned me an aggravated robbery case which had come back on a reversal and remand. The defendant had already done eight years in prison, and the judge assured me that the resolution would be simple: the defendant would plead out, the judge would sentence him to time served, and I'd submit my fee bill. Easy money. A quick call to my secretary confirmed that at that particular moment there wasn't anybody standing outside my office door with a burning desire to give me a thousand bucks, so I took the case.
It seems that this was in the same category as those radio ads which promise that you can quadruple your income by working for a couple of hours a week out of your home. The defendant wouldn't make a deal, it turned out; he was still on parole, and a guilty plea would have violated him and sent him back to serve the remaining fifteen years of his sentence. Besides, he wasn't interested in working something out. He had become an expert on Ohio's "other" speedy trial statute, RC 2941.401, and he was going to ride that horse all the way.
That section, as you can see, provides that if the state brings an indictment against someone who's already a prisoner in Ohio, it has six months to try him; otherwise, the case is dismissed, just as with the regular speedy trial statute. Of course, that's contingent on the prisoner making a demand for trial. What had happened with my client was that he claimed the state didn't properly notify him of the pending charges, and so he didn't have a proper chance to demand the trial. The judge (a different one; this was ten years earlier) didn't buy it, and denied the motion to dismiss.
Which is where things got really funky. The defendant worked out a plea, intending to take the issue up on appeal. He did, only to find that his guilty plea waived his right to contest the denial of the motion to dismiss. (Just as it will waive everything else except whether the plea was valid, and the sentence. If you want to take up a denial of a motion to suppress, for example, you need to plead no contest to the indictment.) Long story short, a couple years later the defendant filed a motion for post-conviction relief, arguing that his counsel was ineffective for not telling him about this. The attorney was a stand-up guy, and testified that he'd wrongly advised his client that he could still appeal from a guilty plea. The judge vacated the conviction. The prosecutor took the case up to the court of appeals, which affirmed it, and so after a ten-year legal oddyssey, the case was back at square one: the judge didn't feel bound by his predecessor's ruling on the application of 2941.401, so he wanted a new hearing on whether the defendant had been properly notified of the pending indictment, so that he could request disposition. That's the door I came in.
Last week, the Supreme Court cleared all that up in State v. Dillon. No, that wasn't my case, but it was fairly similar. The defendant had been told by the police that he'd been indicted, and the state had subsequently sent a copy of the indictment to the warden and told him to serve it on the defendant. He never did; Dillon was finally served with the indictment when he was brought back by the county for his arraignment.
The trial judge held that Dillon was required to demand trial when he was first informed of the indictment. The court of appeals didn't agree, though, and neither did the Supreme Court, ruling 6-1 that when the statute requires the warden to "promptly inform [defendant] in writing of any untried indictment. . . of his right to make a request for final disposition thereof," it means exactly that. The defendant wasn't under any obligation to demand a trial until the warden formally notified him, and the time began to run when the warden was first informed of the indictment.
Dillon is obviously not going to have broad application, and it has to be read in context with State v. Hairston, where the Court held that 2941.401 didn't impose any affirmative duty on the state to find out where the defendant was imprisoned, so that it could serve him with the indictment. It is nice to see the Supreme Court actually apply the language of a speedy trial statute as it's written. It would be even nicer if they'd do this with the main speedy trial statute, holding, for example, that when the statute says that the time is tolled for "any period of delay necessitated" by a defense motion, it means that the time is tolled for any period of delay actually necessitated by the motion, not just by the filing of the motion. (A fuller exposition of that argument, as well as a cute cat picture, can be found in this post.)
So whatever happened to my case? Nothing. The judge held a hearing on the motion to dismiss, but by that time the defendant was out of prison and in a halfway house, a few months away from full release on parole. The judge apparently figured that even if he ruled for the defendant, the state could take it up on appeal, and the defendant might wind up having to serve additional time, which the judge, again apparently, didn't figure was fair. So he sat on the case. The next to the last entry on the docket, six years ago, is "HEARING HELD ON MOTION TO DISMISS. HEARD AND SUBMITTED." The only entry after that is the one authorizing me getting paid my fees by the County Auditor.
See? This story did have a happy ending.
Tips and Tricks: Criminal discovery and speedy trial
As I mentioned last week, the various Supreme Court decisions on the statutory right of speedy trial in recent years have essentially reduced the entire concept to an abstraction. Four years ago in State v. Brown, the court held that filing a request for discovery or other motion tolled the time until the state answered; last year in State v. Sanchez the court ruled that a defendant's motion in limine tolled the time; last week's ruling in State v. Palmer held that the time was tolled if the defendant failed to respond to the state's discovery in a reasonable time; and yesterday in State v. 7New86 the court determined that time was tolled if the defendant's name began with an alphanumeric character, a ruling that will probably be expanded in the pending case of State v. #fre*&.
Okay, I made those last two up, but you get the idea. So what's a poor boy to do?
Well, several things. First, for most cases, filing a request for a bill of particulars (which also tolls the time) is a waste, and you can probably get all the discovery you need at the pretrial. Wait until the day of trial to file a motion in limine. Make sure you respond to the state's request for discovery within three to four weeks, and indicate that you'll supplement the responses as necessary.
Now, it may not be appropriate to do those things. The most serious risk is in not filing a request for discovery. If you've filed one, and at trial the state calls a witness who's not on their list, you have an objection to them doing that; if you haven't filed one, there's nothing to prevent them from doing that.
On that score, last week's decision in Palmer might actually be helpful. As noted, Brown holds that the time is tolled from the time you request discovery until the state responds to it. There are a number of courts, and the court of appeals in Palmer was one, which have held that the time isn't tolled if the state unreasonably delays its response. After the Supreme Court's decision in Palmer upholding the trial court's determination that any delay beyond 30 days in responding was unreasonable on the part of the defendant, I think a real good argument can be advanced that the same logic applies to the state: any delay beyond 30 days doesn't toll the time.
One more thing. I gave a seminar on developments in criminal law last Thursday to the Cuyahoga Criminal Lawyers Defense Assocation, and somebody raised the point that the county prosecutors office is now serving defendants with discovery requests, even where the defendant hasn't requested discovery himself. The lawyer said that the prosecutors office believes they're allowed to do this.
Well, I believe I should be the Pope, but that don't make it so. Rule 16 clearly conditions the state's right of discovery to the defendant's having first requested it. Here's the first provision for discovery from the defendant under 16(C)(1):
a) Documents and tangible objects. If on request or motion the defendant obtains discovery under subsection (B)(1)(c), the court shall, upon motion of the prosecuting attorney order the defendant to permit the prosecuting attorney to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, available to or within the possession, custody or control of the defendant and which the defendant intends to introduce in evidence at the trial.
The others read the same way; the prosecuting attorney has no right to discovery unless the defendant has filed for and received it from the state. In light of the Palmer decision last week, it's best not to ignore this. File a response with the court indicating that the state's request is improper, and you won't respond to it further, because you didn't request discovery.
Continue reading "Tips and Tricks: Criminal discovery and speedy trial" »
Speedy trial: what's left?
The Ohio Supreme Court apparently decided that since I'm snowed in, it should issue some opinions I can write about. Thanks, guys. Three criminal ones, no less, and every one of them going for the state.
First one up is State v. Palmer, yet another in a line of decisions eviscerating the speedy trial statute. In Palmer, the trial court had held that the defendant's failure to file a response to the state's discovery motion for sixty days tolled the running of the statute for half that time, thus bringing the defendant's trial within the required period. The 11th District had reversed, holding that none of that time could be counted against the defendant, because the state had never filed a motion to compel.
The Supreme Court reversed that and reinstated the trial court's decision, noting that it had ruled twenty years ago in Lakewood v. Papadelis that filing a motion to compel wasn't necessary for a trial court to impose sanctions for failure to provide discovery. That is correct, but completely irrelevant.
The Court has made numerous decisions over the past few years holding that various actions of the defendant extend the time in which he can be tried. Less than five years ago, in State v. Brown, it held that a defendant's filing a request for discovery tolled the time; last year, in State v. Sanchez (which I discussed here), it held the same for a defendant's motion in limine. And now this.
What all those decisions have in common is the Court's complete failure to analyze how any of those activities affect the statute's only actual concern: when the defendant is tried. The obvious purpose of the statute is to ensure that the defendant gets tried within a certain period of time. The statute correctly anticipates that a defendant may do certain things which delay the trial, and excludes those from the calculation.
What the Court has done is conclusively assume that if the accused does any of those things, it will delay the trial. In fact, its holding in Brown that "the statute does not require a showing that a motion caused delay before the running of speedy-trial time may be suspended" is directly contrary to the statute, which plainly states that the time is extended only for "the period of delay necessitated" by the defendant's motion.
It's one thing to hold that, say, a motion to suppress will delay a trial, although even that's not the case here in Cuyahoga County, where such motions are heard on the day of trial. (And in at least one courtroom, the judge will routinely order a jury up before he's even heard the motion.) But the filing of discovery is usually one of the first things a defense counsel will do, well before a trial date is even set. There's no logical or empirical basis whatsoever for the belief that the filing of a request for discovery causes any delay in the actual trial. The only time that happens is when the state is tardy in responding, but that's the state's fault for its tardiness, not the defendant's for requesting the information in the first place.
The decision in Palmer suffers from the same defect in analysis. This time, the court relies upon 2945.72(D), which extends the time for "any period of delay occasioned by the neglect or improper act of the accused." There's nothing in the facts of the case to indicate that any delay was "occasioned" by the defendant's tardiness in responding to discovery. If the defendant had provided a lengthy witness list the day before trial, the state might have been within its rights to request a continuance to investigate the matter more fully, and that delay would have been rightfully charged to the defendant. But that didn't happen here: the defendant's response indicated it had no documents and no witnesses. It probably should have been provided sooner, but there's no indication that it caused any delay whatsoever in the trial, and that's what the speedy trial statute is about.
This case also opens up another can of worms, because it places on the trial court the burden of determining whether defendant's response was "timely." Obviously, the task of preparing a response to discovery in a crack pipe case is far different from that in a murder case. Note that the trial court in Palmer split the baby, holding that half the 60-day delay was "unreasonable"; there's little to suggest that his decision was supported by anything other than a desire for Solomonic simplicity.
The good thing about Palmer is that its consequences are easy to avoid. Note that, unlike the situation in Brown, the time isn't tolled from the point where the state files its request for discovery, but only from the point where the defendant's failure to respond can be called "unreasonable." If defense counsel files a response within, say, three to four weeks later, it's hard to see any court determining that's unreasonable. The response can say that the defense doesn't anticipate calling any witnesses or providing any reports, reserving the right to supplement the responses; in probably 80% of the cases, that will be accurate, and if a witness or some evidence you're required to disclose does turn up, you can simply supplement your response at that point.
Palmer's not a good decision from the defense standpoint, but another one the Court handed down yesterday is worse. We'll get to that one tomorrow, and the other one next week.