Part Four - Constitutional Speedy Trial Considerations
By Robert C. Bonsib, Esq. and Megan E. Coleman, Esq.
This is the final a four-part analysis of speedy trial considerations in Maryland. We began with State speedy trial considerations under Maryland Rule 4-271, Criminal Procedure Article 6-103, and Hicks, and then discussed speedy trial considerations under the 6th Amendment to the United States Constitution, the Maryland Declaration of Rights, and Barker v. Wingo. Last month we presented cases in which a constitutional speedy trial violation did occur. In this article we will present cases in which a constitutional speedy trial violation did not occur.
As a recap, in determining whether a defendant's constitutional right to a speedy trial has been violated, the court should consider:
- Length of Delay
- A pre-trial delay of one year is guaranteed to be of "constitutional dimension" and "presumptively prejudicial" thus requiring the trial court to conduct a speedy trial analysis.
- However, a delay of less than one year may be of "constitutional dimension" requiring analysis, depending on the circumstances, especially where the case is routine.
- Reason for the Delay
- A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.
- A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.
- A valid reason, such as a missing witness, should serve to justify appropriate delay.
- Assertion of Right to a Speedy Trial
- Did the defense make a speedy trial demand in writing?
- Did the defense oppose any requests for continuances or make repeated requests for continuances?
- Did the defense adopt and incorporate speedy trial demands made by co-defendants?
- Actual Prejudice to the Defendant
- Oppressive pretrial incarceration
- Anxiety and concern
- Impairment of the defense - loss of evidence or witness
- Financial strain and loss of employment? Maybe
A Constitutional Speedy Trial Violation Did Not Occur in the Following Cases:
(1) In Howard v. State, 66 Md.App. 273 (1986), cert. denied, 306 Md. 288, an eight month delay was upheld where two months of that delay were deemed to be consented to by the defendant.
Length of delay: Eight months. Howard and others were charged with conspiracy to commit robbery with a deadly weapon. Howard was arrested on September 21, 1983 and went to trial on June 19, 1984.
Reason for delay: The first trial date was February 27, 1984. The delay between arrest and this date was attributable to the orderly processing of the case, and thus not chargeable to the State. There were delays of trial on both March 19, 1984 and April 16, 1984 which the CSA said were neutral because they were just short of two months and good cause was found based upon the unavailability of courtrooms.
There were delays of trial on February 27, 1984 and May 14, 1984 which the CSA attributed to the State, but only accorded slight weight. On the February 27th trial date, the State sought to consolidate the trials of the co-defendants. Howard did not object or move to sever until the May 14th trial date. When his motion was granted, trial was promptly set within the next month, thus mitigating the effect of the delay.
Assertion of right: At arraignment on November 18, 1983 Howard filed a motion for speedy trial. On December 19, 1983, new counsel entered his appearance and filed a second motion for speedy trial. On May 15, 1984, a motion to dismiss for lack of speedy trial was filed. On June 18, 1984, Howard was brought to trial. Another motion to dismiss for lack of speedy trial was filed. The CSA found that this factor "is entitled to strong evidentiary weight."
Actual prejudice: The only noted prejudice was pre-trial incarceration.
Balancing of the factors: The CSA said the weight accorded to the two months' delay attributable to the State is slight, and although Howard's assertion was timely and he was incarcerated, the delay was not of the kind or duration to warrant dismissal.
(2) In Fields v. State, 172 Md.App. 496 (2007), the CSA found that the trial court did not abuse its discretion in postponing the trial date beyond the 180-day period, and the 20 month delay in bringing the defendant to trial did not violate his right to a speedy trial.
Length of delay: Over 20 months. Fields was convicted of second degree murder, conspiracy to murder, assault and firearms violations.
Reason for delay: Fields was arrested June 9, 2003 and arraigned October 7, 2003. Co-defendant Colkley filed a motion for speedy trial on October 14, 2003.
The first trial date was February 4, 2004. With respect to the first delay from arrest to this first trial date, the CSA charged the delay to the State because "the ultimate responsibility for such circumstances rests with the government." However, it was given less weight because it was due to the complexity of the case and witness availability.
At that first trial date counsel for Fields requested a brief postponement because defense counsel was sick. The State wanted the case to be postponed until after the detective's vacation. The administrative judge found good cause to postpone beyond 180-days. The CSA found that the five day delay was attributed to the defense and the three month delay was attributed to the State. The CSA accorded this delay neutral.
The next trial date of May 10, 2004 was postponed because the prosecutor wanted to try an older case and there was no courtroom availability. The CSA found that this weighed against the State but the CSA did not find evidence in the record that there was purposeful delay.
The next trial date of July 28, 2004 was postponed because a new prosecutor was assigned to the case and noticed that a witness was not summonsed and that the primary detective would be going on vacation the next day and would not be back until the following Monday. The defense objected. The administrative judge admonished the State and granted a continuance but cautioned that the case would not be postponed again. The CSA weighed this delay heavily against the State.
The next trial date of October 19, 2004 which was postponed by the State because the prosecutor was in another trial.
The next court date of January 5, 2005 was postponed due to the prosecutor being assigned a new position and having a heavy workload. Also, the State said that witnesses were requesting immunity. The CSA found that "[t]he nature, complexity and various circumstances of witnesses and counsel all contributed to the reasons articulated by the State.
The next trial date was March 22, 2005. Motions to Dismiss were argued and denied. The jury was sworn March 24, 2005.
Assertion of right: Fields adopted Colkley's demands to be tried promptly and thus asserted his right to a speedy trial.
Actual prejudice: Fields was incarcerated upon arrest on July 9, 2003 and remained incarcerated for nearly 20 months until trial. These charges were the only charges holding him. The Court recognized that the defendant endured anxiety and concern and experienced oppressive pre-trial incarceration, but the Court looked at the most important factor to establish prejudice which is the inability to prepare one's defense. There was no contention that a witness died or had faded memories due to delay, nor that they were hindered in any way. The Court said "[i]n view of the complexity and gravity of the case, we accord great weight to the lack of any significant prejudice resulting from the delay." Id. at 542-43.
Balancing of the factors: The length of delay was over 20 months and therefore the period of delay was "presumptively prejudicial." Fields satisfied the requirement that he demand a speedy trial. With respect to the prejudice prong, Fields never claimed his defense was impaired by destruction of evidence or unavailability or loss of memory of witnesses. The CSA recognized that the most troubling prong is the reason for delay. The State sought to try the defendants jointly but the State did nothing to bring the defendants to trial timely. The State continuously sought continuances despite assurances to the Court that it would be ready for trial each time. The CSA said that the reasons offered by the State in obtaining postponements, the lack of diligence, and the corresponding frustration of the administrative judge's designees are "strikingly similar" to Wilson v. State, 148 Md.App. 601 (2002).
The CSA said that consideration of the multiple defendants represented by different counsel, recalcitrant witnesses, moderately complex issues and crowded court dockets are all properly factored into the speedy trial equation. However, the administrative duties of the prosecuting attorney are not proper considerations in an evaluation of the reasons for delaying a criminal trial and in a determination of whether a defendant has been denied the Sixth Amendment right to a speedy trial.
Although the CSA found the reasons for the delay troubling, the delay did not impair the ability of the defendants to present their defenses. The CSA said it may have been different if the delay was purposeful by the State rather than a lack of "professional diligence" and had the defendants been able to demonstrate impairment of their defenses as a result of the delay. The CSA said in weighing the actual and presumed prejudice, the scales are not tipped in favor of a violation of the 6th Amendment right to a speedy trial.
(3) In State v. Kanneh, 403 Md. 678 (2008), the Court of Appeals held that delay of 35 months did not violate the defendant's constitutional right to a speedy trial.
Length of Delay: 35 months. Kanneh was charged with sexual abuse of a minor and related offenses. The trial court ultimately dismissed the case for a violation of the defendant's constitutional right to a speedy trial. The State appealed and the COA granted certiorari before any proceedings in the intermediate appellate court.
Reason for the Delay: Kanneh was arrested on August 18, 2004. He was charged by indictment on December 3, 2004. Kanneh's attorney entered her appearance on January 18, 2005, and the first trial date was set for April 5, 2005.
At a scheduling conference on January 28, 2005, the State indicated that DNA evidence would likely not be ready for the April 5th trial date, and defense counsel agreed. The COA found that the first postponement of the April 5, 2005 trial date to obtain DNA evidence is neutral because there is no evidence that the State failed to act in a diligent manner.
The second trial date of June 6, 2005 was postponed pre-trial because the State indicated the DNA evidence had still not been processed. The COA found that this postponement due to unavailability of DNA evidence is also "largely neutral."
The third postponement of the November 28, 2005 trial date was to consolidate the defendant's trial with his father's case. This is charged against the State, but "in the balance, it has relatively little weight given that this only resulted in a delay of approximately two weeks."
The fourth postponement of the December 12, 2005 trial date was partly because of the defendant's request for severance, and partly the result of the unavailability of an interpreter. The COA found that the unavailability of an interpreter does not weigh heavily against the State. It is "analogous to the problem of overcrowded courts" which has been a "more neutral reason" that should be "weighted less heavily" but considered nonetheless.
The fifth postponement of the January 23, 2006 trial date which resulted in a delay of nine months until October 16, 2006 was caused by the inability to secure an interpreter who could simultaneously interpret court proceedings. The State had made "Herculean efforts" to find an interpreter and the original request for an interpreter had not even been made by the defense until January 28, 2005. There was no bad faith by the State, thus the delay is not weighed against the State.
The sixth postponement of the October 16, 2006 trial date to February 26, 2007 was both because of the ongoing attempt to find a qualified interpreter, and to have the defendant undergo a competency evaluation. The COA found that for the purpose of determining the defendant's competence to stand trial, that delay must be weighed against the defendant.
The seventh postponement of the February 26, 2007 trial date was due to the interpreter's recent surgery and was not the result of any bad faith, and therefore if weighed against the State, it is only slightly.
Assertion of Right: In this case, the defendant, with the assistance of counsel, acquiesced to each postponement until he objected to the final postponement in February, 2007. Therefore, this factor is weighed against the defendant and in favor of the State. The COA said under Barker that Kanneh's failure to assert his right is entitled to "strong evidentiary weight."
Actual Prejudice: Kanneh spent one night in jail before posting bond, and then was on pretrial supervision under the condition that he not be around children. Kanneh never complained that the restriction was onerous. Kanneh's assertion that he did not seek new employment or enroll in school because of the pending case only demonstrates minimal prejudice. There was no assertion of any actual prejudice to the defense's case.
Balancing of the Factors: Although the delay was significant, the nature of the case was complex, there was no bad faith on the part of the State in securing an interpreter which was the primary reason for the delay. The defendant never objected to the postponements which is accorded great evidentiary weight. Any prejudice to the defendant was minimal, thus the defendant's right to a speedy trial was not violated.
(4) In Henry v. State, 204 Md.App. 509 (2012), the CSA held that Henry's constitutional right to a speedy trial was not violated.
Length of delay: 13 months between the defendant's arrest for rape and the commencement of his trial.
Reason for delay: The initial six month period between the charging date and the first trial date was accorded neutral status as it is necessary for the orderly administration of justice. On the first trial date, the State moved to continue that date due to the unavailability of the prosecutor. The defendant did not object, and the trial was rescheduled for three months later. This three month delay is chargeable to the State although the defense didn't object.
At the second trial date the State asked for a continuance due to a backlog at the DNA lab. The defense objected but the administrative judge found good cause to postpone the trial beyond Hicks, and the trial was reset for five weeks later.
The State moved one more time to postpone the third trial date, but that motion was denied.
The defense moved in limine to exclude DNA evidence the morning of trial, that had just been received that same morning. The court denied that motion. The defense then moved to postpone trial but asserted that the defendant was not waiving his speedy trial right. The administrative judge granted the defendant's request for a continuance and trial was reset four months later.
The CSA found that a five-week delay due to backlog at the State DNA lab was not to be weighted heavily. The four month continuance granted after the defendant sought to exclude DNA evidence was for a neutral reason. The prosecution was complex. There was no evidence that the State failed to act in a diligent manner. Even to the extent that the delays in obtaining DNA evidence were attributable to the State, those reasons are weighed less heavily in the analysis.
Assertion of right: The defendant first asserted his right to a speedy trial in an omnibus motion, he then reasserted the right at the conclusion of the motions hearing, and then again when defense counsel asked for a continuance of the trial date. Thus the defendant clearly asserted his right to a speedy trial.
Actual prejudice: The defendant said he suffered anxiety and concern about his family as well as personal and business affairs, the defendant was also incarcerated the entire time. But the defendant did not assert that his defense was impaired. The CSA found that no actual prejudice occurred, especially since he received acquittals on all counts except second degree assault.
Balancing: After balancing the factors the CSA concluded that Henry's constitutional speedy trial right was not violated.
(5) In Howard v. State, 440 Md. 427 (2014), the COA held that a 28 month delay did not violate Howard's constitutional right to a speedy trial.
Length of delay: 28 months. Howard was convicted of 1st degree rape and 1st degree sexual offense.
Reason for delay: The COA found that "[i]n the aggregate, the reasons for the delay are neutral." Howard caused 183 days of delay because he discharged his first lawyer and his second lawyer needed time to prepare. The COA found that there were 223 days of delay which were not caused by either party, but rather were for the orderly administration of justice in setting the first trial date, and also for defense counsel to await expert analysis of DNA. There were 71 days of delay that were neutral for defense counsel to review discovery that had just been provided by the State. The State caused 270 days of delay due to State's witness' unavailability. The State caused 98 days of delay because Howard's counsel had not yet received DNA test results.
Assertion of right: Howard did "frequently and strongly assert[ ] his right to a speedy trial" through motions.
Actual prejudice: Howard alleged that two years of his life were gone while incarcerated and that he was almost stabbed in custody. Howard did not allege that his defense was impaired by evidence gone missing, witness unavailability, or memories faded.
Balancing of factors: The COA concluded that the lack of actual prejudice and the neutral reasons for the delay outweighed the length of the delay and Howard's assertion of his right to a speedy trial. The COA held that Howard's constitutional right to a speedy trial was not violated.
Summary from Cases
Defense Should Assert there was a Constitutional Violation because of...
- Routine charges
- Loss of evidence, memories faded, unavailability of essential witnesses
- Prosecutor's busy schedule not an appropriate consideration for the analysis
- Prosecutor did not act diligently in bringing defendant to trial (or acted indifferently or in bad faith)
- Repeated demands for a speedy trial
State Should Assert there was No Constitutional Violation because of...
- Orderly processing of setting the case in for trial
- Courtroom unavailability
- Need for DNA evidence
- Sickness/Injury/Unavailability of witnesses, interpreters, counsel
- Need for competency exam
- Interpreter unavailability
- Complexity in the case and serious nature of the charges
- No objection to continuances by the defendant
- No actual prejudice articulated by the defendant
- Good faith and professional diligence by the prosecutor