Results matching “speedy trial delay”
Followups
I wanted to use today to follow up on some previous notes. The other day I mentioned State v. Palmer in my discussion of recent trends in speedy trial decisions. In Palmer, the state had taken 79 days to respond to a defendant's motion for bill of particulars, and despite previous decisions holding that the filing of such a motion tolled the running of speedy trial time, the Palmer court held that this wasn't reasonable, and thus counted it against the 270 days. (Actually, 90 days in this instance, since the defendant was in prison.)
Palmer was notable for another reason, though: the state had filed a request for discovery, and argued that the time was tolled until the defendant responded to it. The court didn't buy that, and the 8th District rejected a similar argument a couple of years ago in State v. Borrero.
Be forewarned, though: the Supreme Court has allowed an appeal from Palmer on the question of
"Whether a defendant's failure to timely respond to the State's request for reciprocal discovery is a period of delay occasioned by the 'neglect' or 'improper act' of the defendant that tolls the speedy trial time pursuant to RC 2945.72(D) even in the absence of a Crim.R. 16 demand for discovery."
I wouldn't want to handicap this one. On the one hand, the Supreme Court's speedy trial decisions have almost invariably run against the defendant and in favor of liberally applying tolling provisions. On the other hand, since Rule 16 doesn't specify any time period for the defendant's response (or for the prosecution's for that matter), deciding what is a "failure to timely respond" opens up a can of worms. If the defendant hasn't responded -- as, let's face it, a lot of us don't -- that's one thing; it's pretty hard to argue that you responded "timely" if you didn't respond at all. But what if the defendant files his response a day or two before trial? What part of that period isn't "timely", and should be counted against the defendant?
The other thing I wanted to follow up on is a post I did about three months back on marijuana law enforcement, in which I noted the disturbing tendency to prosecute people for trafficking in marijuana if they happened to have more than a few small baggies of the stuff on them. The prosecution claim is that this is the way dealers sell marijuana; as numerous defense lawyers have pointed out, that means it's also the way users buy marijuana, and inferring trafficking from possession of a small number of baggies doesn't make much sense.
A number of judges have come to the same conclusion, and Judge Stuart Friedman of the Cuyahoga County Common Pleas Court wrote an opinion in one such case. You can find it here. It obviously is not binding precedent on the other judges, and the opinion makes clear that it's a fact-specific situation. Had there been other indicia of trafficking, such as the defendant waving down cars or approaching people and engaging in hand-to-hand transactions, the result might have been different. But it's an excellent opinion to use to establish that trafficking can't be inferred merely from possession of small numbers of baggies.
You'll notice that I've reworked the links on the right. I've cut down on some of the Ohio court stuff; my guess is that the next person who uses the link for the 6th District will be the first. I've added some links to other blogs. Appellate Law and Practice is what it says; I've limited it to the decisions of the US 6th Circuit, but you can find just about anything there. The Legal Theory Blog is just that; discussions of law on a more abstract level. (Such as a recent piece on the alarming trend of disposing cases by way of summary judgment.) When that makes your head hurt, you can go over to Anonymous Lawyer, a humorous blog by a fictional hiring partner at a fictional large law firm. (One of his recent posts bemoaned the death of Steve Irwin, the crocodile hunter, and the effect this might have the partner's ability to stage a Snakes at the Firm day.) And then there's Inside Opinions, which basically is a blog about legal blogs. You can find some interesting stuff there, too, like this recent piece on the use of song lyrics in judicial opinions. It notes that Bob Dylan is the most frequently cited songwriter, and that
one Dylan lyric, "You don't need a weatherman to know which way the wind blows," has virtually become boilerplate in California appellate decisions discussing the need for expert testimony.
And for those who are more modern in their music tastes, the author notes
the increasing tendency of courts to cite hip-hop lyrics.... As an example, [the author] offers a 2005 decision in which the 7th U.S. Circuit Court of Appeals was compelled to explain the difference between a "hoe" and a "ho." In so doing, it referenced the lyrics of rapper Ludacris, "You doin' ho activities with ho tendencies."
Word.
Shameless marketing, and more speedy trial stuff
One of the other things I can do with the new site is use pictures. Which allows me to introduce the new additions to the Bensing family. That's Isabel on the right, and William's the little charmer on the left. This continues the mildly unfortunate modern trend of giving pets human names. We know a couple who have cats called Alexander and Victoria. Their kids are named Rags and Muffin.
I know, you're thinking, "Is there any length to which you will not go in an attempt to market your site? Using kittens? And how did you get them to sit in that briefcase?" Easy: used a whip.
The Supreme Court last week, in State v. Sanchez, decided another case on speedy trial rights under RC 2945.71, this time holding that the filing of a motion in limine tolls the time. This is in line with the court's 2002 ruling in State v. Brown that the filing of a motion for bill of particulars or a request for discovery by the defense similarly tolls the time. All of these cases are amply supported by precedent: the clear majority of appellate districts had ruled that motions in limine tolled the time, and so had the clear majority of appellate districts with respect to motions for bills of particular and requests for discovery.
I don't think this is good law from a legal, logical, or practical standpoint. Let's start with this language from Sanchez: after quoting the statute's provision that the time is extended only by
"(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused." (Emphasis in Sanchez)
the court concluded,
The statute does not require a showing that a motion caused delay before the running of speedy-trial time may be suspended.
I'm sorry, but that doesn't make sense. If the time is extended only by the period of delay necessitated (and notice that the Court didn't emphasize that word) by the defendant's motion, how can you conclude that it's not necessary to show that the defendant's motion caused a delay? Put another way, how can the time be tolled if the motion didn't necessitate a delay, when that's the showing required by the statute? What Sanchez and Brown essentially do is rework the statute so that the word "necessitate" is written out of it: those decisions basically mean that any motion filed by the accused tolls the time, whether or not it "necessitates" a delay.
This doesn't make any sense from a practical standpoint, either. The court in both cases claimed that the mere filing of such motions placed a strain on prosecutors; as the court stated in Brown, "discovery requests by a defendant divert the attention of prosecutors from preparing their case for trial, thus necessitating delay." I doubt if there's a shred of empirical evidence to support this. Moreover, as the 11th District noted in State v. Palmer,
The state is presumed to have all of its facts and its witnesses prepared and ready to go prior to seeking its indictments, as they choose the time and place to proceed. It is unfathomable that they do not have their discovery and do not have the information readily available in their file to formulate a bill of particulars. If the time, the date, and the offense information are not available to them, they should not seek an indictment or charge a defendant until they are prepared.
Of course, Sanchez and Brown are the law, and that's not going to change. That doesn't mean there aren't loopholes, though. Even Sanchez notes that the decision there "does not imply that the state may prolong its response time or that a trial court has unbridled discretion in taking time to rule on a defense motion." There are cases holding that if the delay in the prosecutor's response is unreasonable, the state doesn't get the benefit of tolling. Palmer is one of them; there, the state took 79 days to file its bill of particulars, every day of which the defendant was sitting in jail, and the court said there was no reason for that.
Still, it's tough to win on a speedy trial motion: last year in Ohio, according to the Supreme Court's statistics, out of the 123,000 felony cases pending at some point in time, only 94 were dismissed for speedy trial violations. Brown and Sanchez make it even tougher, and that comes at the expense of doing what the speedy trial statute was intended to do: ensure an expeditious resolution to criminal cases. Under the Supreme Court guidelines for courts and judges, felony cases are supposed to be disposed of in six months. Since 1999, the percentage of cases exceeding that figure has increased by one-third. Wonder why?
Continue reading "Shameless marketing, and more speedy trial stuff" »
May 24, 2006
The defendant was indicted in 1999 for crimes that occurred one or two years earlier. The regular-mail letter with the summons was returned "address unknown." The state made no further attempt to serve the defendant until it located him in a Federal prison in 2005. The defendant moved to dismiss the indictment on statute of limitations grounds, and the trial court agreed.
So did the appellate court.
May 15, 2006
The police pull over a car, and a search finds enough drugs to keep Robert Downey happy on his next movie set. The defendants are indicted for several drug offenses and work out plea deals, one defendant copping to a fifth degree felony and the other to a first degree misdemeanor. A few weeks later, the grand jury indicts the defendants for several more drug offenses arising out of the same stop. The prosecution argues that the indictments were delayed because the BCI took so long in analyzing the drugs that were sent to them.
Too bad, says the court in State v. Lloyd, not only agreeing with the trial judge that the second prosecution violated the collateral estoppel principles of double jeopardy, but the defendants' speedy trial rights as well.