Part Three - Constitutional Speedy Trial Considerations
In the last two articles we discussed State Speedy Trial considerations under Maryland Rule 4-271, Criminal Procedure Article 6-103, and Hicks and its progeny. In this article we will be discussing Speedy Trial considerations under the 6th Amendment to the United States Constitution, the Maryland Declaration of Rights, Barker v. Wingo, and Maryland cases applying those principles. Specifically, we will present cases in which a constitutional speedy trial violation did occur. Next month's article will present cases in which a constitutional speedy trial violation did not occur.
"In all criminal prosecutions, the accused shall enjoy the right to a speedy...trial[.]" U.S. Const. Amend. VI; see also Md. Decl. of Rts. Art. 21 ("[I]n all criminal prosecutions, every man hath a right...to a speedy trial"). Howard v. State, 440 Md. 427, 447 (2014).
In determining whether a defendant's constitutional right to a speedy trial has been violated, a court considers the "[l]ength of [the] delay, the reason for the delay, the defendant's assertion of his [or her] right, and prejudice to the defendant." Vermont v. Brillon, 556 U.S. 81, 90, 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009) (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)) (first alteration in original). None of these four factors alone establishes a violation of the right to a speedy trial; thus, a court considers the four factors "together[.]" Barker, 407 U.S. at 533, 92 S.Ct. 2182. Howard v. State, 440 Md. 427, 447 (2014).
(1) Length of Delay
Length of delay is measured from the day of indictment or arrest. See United States v. Loud Hawk, 474 U.S. 302, 310 (1986) ("[W]hen no indictment is outstanding ... arrest ... engage[s] ... the speedy trial provision of the Sixth Amendment."
This is an important distinction from the Maryland Statutory speedy trial rule which considers the time from the defendant's or defense counsel's initial appearance in circuit court, rather than the date of arrest. Thus, the constitutional speedy trial clock begins ticking sooner, but may have to tick longer before the defendant can get relief.
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. Generally, a delay of at least one year triggers a speedy trial analysis. Howard, 440 Md. at 447-48 (citing Doggett v. United States, 505 U.S. 647, 652 n. 1, 651 (1992)). A pre-trial delay of this length is considered one of "constitutional dimension" and a presumption of prejudice arises that a defendant has been deprived of his right to a speedy trial. Henry v. State, 204 Md.App. 509, 555 (2012). This presumption merely kick-starts the balancing of the four factors, the one year or more delay alone does not mean that a constitutional speedy trial violation has occurred, and in fact, "the length of delay is the least determinative of the four factors that [a court] consider[s] in" determining whether a defendant's right to a speedy trial was violated." State v. Kanneh, 403 Md. 678, 690 (2008).
Most of the cases addressed by the Court of Appeals ("COA") look at delay where the interval between arrest and trial was longer than one year. See State v. Bailey, 319 Md. 392, 415, cert. denied, 498 U.S. 841 (1990) (two years and nine days); Brady v. State, 288 Md. 61, 70 (1980) (fourteen months); Wilson v. State, 281 Md. 640, 651, cert. denied, 439 U.S. 839 (1978) (four years and two months); Jones v. State, 279 Md. 1, 6 (1976) (two years and five months); Smith v. State, 276 Md. 521, 528 (1976) (sixteen months).
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. In Epps v. State, the COA recognized "that an interval of nine months 'may be wholly unreasonable under the circumstances.'" 276 Md. 96, 110 (1975) (citing Barker v. Wingo, 407 U.S. 514, 528 (1972). Also, in a pre-Barker decision in Jones v. State, 241 Md. 599 (1966), overruled on other grounds, the COA applied the constitutional analysis where the delay was nine and one-half months. Likewise, the Court of Special Appeals ("CSA") considered the constitutional implications of a delay of twelve months in Caesar v. State, 10 Md.App. 40 (1970) and a length of delay of eight months in Barnett v. State, 8 Md.App. 35 (1969). And in Battle v. State, 287 Md. 675, 686 (1980), "[t]he State concede[d] that [an] eight month twenty day delay 'might be construed to be of constitutional dimension so as to trigger the prescribed balancing test.'"
But a delay of six months has not been sufficient to trigger the constitutional analysis. The COA has held that six month delay "was not presumptively prejudicial [and therefore] there is no necessity for inquiry into the other factors which go in to the balance." State v. Gee, 298 Md. 565, 579 (1984).
If the Defendant is able to establish that the delay is of constitutional dimension, the Court must then continue to assess these other factors.
(2) Reason for the Delay
Closely related to length of delay is the reason assigned to justify the delay. Different weights are assigned to different reasons. The Barker Court said:
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.
407 U.S. at 531. See also Henry v. State, 204 Md.App. 509, 550 (2012).
(3) Assertion of the Right
This is best assessed by looking at the action of defense counsel or the defendant. 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 request a speedy trial demand orally at the time the case was continued? Did the defense adopt and incorporate speedy trial demands made by co-defendants?
(4) Actual Prejudice
While presumed prejudice may be established by a length of delay of more than one year to trigger the analysis, that is different than the prejudice prong which looks to see if the delay caused actual prejudice to the defendant.
Actual prejudice may result from any of the three factors: (1) oppressive pretrial incarceration; (2) anxiety and concern; and (3) impairment of the defense. See Baily, 319 Md. at 416-17.
The most severe form of actual prejudice is impairment of the defense such as where a witness goes missing or becomes deceased, evidence goes missing, or memory by witnesses becomes faded. If the charges are not serious, then actual prejudice of financial strain and loss of employment may be factored in. Generally, the length of delay will serve as a presumption of prejudice in favor of the defendant where it is more than one year. Even when there is no showing of actual prejudice, the defendant's speedy trial rights could be violated. See Brady v. State, 288 Md. 61, 62 (1980).
Analysis of the Four Factors
Constitutional Speedy Trial Violations Established In The Following Cases
(1) In Reed v. State, 78 Md.App. 522 (1989), the CSA held that while the defendant's statutory speedy trial right was not violated, his constitutional speedy trial right was violated.
Length of delay: This was a prosecution of two counts of simple battery. The length of delay was more than 13 months and the defendant was incarcerated the entire time. The CSA found that the length of delay was sufficiently inordinate to constitute a "triggering mechanism" to engage in the "sensitive balancing process" of reviewing the conduct which gave rise to the delay.
Reasons for delay: The CSA found that the reasons for delay were all attributable to the State, despite the trial court finding the reasons neutral based upon court overcrowding. The CSA found that "[a]lthough the delay must be weighed less heavily than intentional delay, it is nonetheless entitled to some weight." 78 Md.App. at 538.
The first trial continuance occurred when the State's complaining witness became ill and the second continuance was because the court's schedule was too busy to have a trial that day. The third continuance was because the prosecutor was in another jury trial starting that day. The fourth continuance was because there was "no courtroom available." The fifth continuance was because the prosecutor was involved in another jury trial that day.
The defendant's motions to dismiss were denied so the defendant entered a not guilty to an agreed statement of facts in order to secure a sentence of time served so that he could be released. However, his lawyer made sure to put on the record that he was not intending to waive his right to a speedy trial by proceeding this way.
Assertion of right: The CSA found that the defendant made the demand early, often, consistently, and persistently. Thus, the defendant's assertion is "entitled to strong evidentiary weight in determining whether [he was] being deprived of the right."
The defense objected to each and every continuance. The defendant reminded the court how long he'd been incarcerated waiting for trial to begin. The defendant told the court that the same reasons were repeatedly being given for continuances. The defendant even filed a pro se motion for speedy trial and defense counsel filed a motion to dismiss. The defendant sent letters to the Clerk of the Court and the State's Attorney protesting the continual delay.
Actual prejudice: The CSA found that the defense was not prejudiced by the delay, but found that the balancing test is not confined to that consideration, "nor is an affirmative demonstration of prejudice necessary to prove a denial of the constitutional right to a speedy trial." The CSA found that the trial court gave too little weight to the "inevitable personal prejudice" that results from delay.
Overall balancing: The CSA held that "the unreasonable delay in this run-of-the-mill criminal case cannot be justified by simply asserting that the public resources provided by the State's criminal-justice system are limited and that each case must await its turn." Reed was denied his constitutional right to a speedy trial.
Side Note: The defendant's statutory right to be tried within 180 days was not violated: On the day that the case was postponed beyond Hicks, the case had only been continued once previously for the same reason, court congestion. The CSA did not find that a single recurrence of the same reason amounted to "chronic" congestion. Also, the postponement was granted one month before the end of the 180-day period, and the next trial date was scheduled for a date slightly more than one month after that period. Thus, the delay was not so inordinate as to amount to an abuse of discretion.
(2) In Wilson v. State, 34 Md.App. 294 (1976), the CSA held that the defendants were denied their right to a speedy trial with a 13 month and three week delay in being brought to trial.
Length of delay: 13 months and three weeks. The defendants were charged with robbery with a dangerous and deadly weapon and use of a handgun in commission of a crime of violence and related charges. The CSA noted that this delay was of "sufficient 'constitutional dimension' to 'trigger' the four-fold analytical process enunciated in Baker."
Reason for delay: The defendants were arrested on November 30, 1974. They remained incarcerated continuously. The first trial date was June 23, 1975. This was postponed because not enough jurors were available. The second trial date was October 17, 1975 and this was postponed by the State because no courtroom was available. Defendant Wilson filed a motion to dismiss based on speedy trial which was denied. Defendant Green requested a speedy trial, filed a motion to dismiss and that was denied. The third trial date was scheduled for January 13, 1976 and that was postponed because Green's counsel was unavailable. Trial began on January 19, 1976.
The CSA found that the State must shoulder the blame for the delay since the defendants were twice ready to proceed with the trial only to have it postponed because there were not enough jurors or courtroom availability. Though balanced in favor of the defendants, the CSA attached minor weight because the delay was not intentional.
Assertion of right: Wilson moved to dismiss for lack of speedy trial on October 22, 1975 and Green filed a motion for speedy trial on October 28, 1975, and a motion to dismiss on January 7, 1976. These demands were not made until 11 months after arrest and after two postponements had already occurred. Thereafter the State moved with reasonable expedition to bring them to trial in three months. Thus, the CSA balanced this factor to be neutral with minimal significance to be given to either side.
Actual prejudice: The CSA said that no direct evidence of prejudice was demonstrated at the hearing on the speedy trial issue. But the CSA found the delay here was not insubstantial but rather sufficient to invoke the presumption of prejudice and shift the burden to the State to produce evidence to demonstrate that the defendants suffered no prejudice by reason of the delay. The State failed to provide a scintilla of such evidence, the State made no effort whatsoever to carry its burden. Thus the CSA weighed the length of delay and prejudice prongs heavily in the defendants' favor.
Balancing of all factors: The CSA said the factors are either neutral or weighted in the defendants' favor. Thus, the defendants were denied their right to a speedy trial under the 6th Amendment to the U.S. Constitution and Article 21 of the Maryland Declaration of Rights. Dismissal of the indictment is the only possible remedy when a speedy trial has been denied.
(3) In Divver v. State, 356 Md. 379 (1999), the COA held that a delay of one year and sixteen days violated the defendant's state and constitutional right to a speedy trial.
This case is important because it holds that "[t]here is nothing to prevent a circuit court from deciding whether an Divver's right to a speedy trial was denied in the District Court based upon a record that is made in the circuit court." Thus, the speedy trial clock does not just start again with the de novo appeal, but rather, the Court can consider what occurred in the District Court.
Length of delay: 1 year and 16 days. Divver was charged with driving while intoxicated and running a red light. Divver was arrested for DWI on May 25, 1996. Four days after his arrest Divver demanded a speedy trial in District Court. Sixteen days after his arrest the State filed a notice of intent to seek enhanced punishment.
Thereafter there was no activity until February 20, 1997 when the District Court notified Divver that his trial would be held on June 10, 1997. Divver made a motion to dismiss on speedy trial grounds and that was denied. Divver was convicted and appealed to the Circuit Court.
In the Circuit Court Divver demanded a speedy trial and moved to dismiss the charges based on the denial of speedy trial in District Court. The Circuit Court denied the motion. Divver plead not guilty to an agreed statement of facts.
The COA found that "the delay is of uniquely inordinate length for a relatively run-of-the-mill District Court case. Trial of the case to verdict on guilt or innocence presented little, if any, complexity. There was one witness for the State, a police officer whose appearance was subject to the control of the State, and the only witness for the defense was the accused himself. Given these circumstances, the length of the delay in the instant matter operates more heavily in Divver's favor than would usually be the case in many circuit court prosecutions." Id. at 390-91.
Reason for delay: There is no evidence in the District Court proceedings that any party requested a delay in setting the trial date, and there was no earlier trial date that was postponed.
At the Circuit Court proceedings, the State responded to Divver's motion to dismiss in District Court stating that "[t]he delay was necessitated by the fact that the District Court of Maryland...was short 2 judges for a significant time during the applicable period."
The COA found that the delay was attributable to the failure of the District Court to assign the case for trial. Although the District Court was down two judges, the COA said that "is immaterial. Assigning cases for trial is the obligation of the State. If the failure to assign the case was due to congestion or understaffing of State offices, the delay is chargeable to the State." Id. at 391. Thus, "the entire delay is weighed against the State in the instant matter, although not as heavily as it would were this a case in which the delay was purposeful, in order to hamper the defense." Id.
Assertion of right: The COA found that this factor clearly weighs in favor of Divver since he made known his desire to have his speedy trial rights strictly enforced. The State even "escalated the stakes with its notice of enhanced punishment" yet, the State failed to accelerate the process in scheduling the case for trial. Id. at 392. The COA said "If...the trial date set by the assignment office is unsatisfactory in relation to the constitutional mandates, the State's Attorney's Office should request an earlier date, and, if necessary, ask the court to order compliance." Id. (citing Smith v. State, 276 Md. at 531).
Prejudice: Divver was on bail during the delay. Divver did not present any evidence of impairment of the defense, thus this factor weighs heavily in favor of the State.
But, the COA cited Epps for "personal factors...such as interference with the defendant's liberty, the disruption of his employment, the drain of his financial resources, the curtailment of his associations, his subjection to public obloquy and the creation of anxiety in him, his family and friends." Id. (citing Epps, 276 Md. at 116)). Epps cited the concurrence in Barker: "for those who desire an early trial, these personal factors should prevail if the only countervailing considerations offered by the State are those connected with crowded dockets and prosecutorial case loads. A defendant desiring a speedy trial, therefore, should have it within some reasonable time; and only special circumstances presenting a more pressing public need with respect to the case itself should suffice to justify delay." Epps, 276 Md. at 116 (quoting Barker, 407 U.S. at 537)).
The COA found that the actual prejudice factor favors the State, but not overwhelmingly.
Balancing of all factors: Neither the District nor Circuit Courts weighed the factors. The COA found that three of the four factors, especially the length of and reason for the delay weigh in favor of Divver. Weighing in favor of the State is the absence of any actual prejudice to the presentation of a defense and that Divver was not in jail. However, there was prejudice that included personal factors as well as a presumption of prejudice from the length of the delay, both of which favor Divver. Weighing all of the circumstances, the COA concluded that Divver's right to a speedy trial was violated and that the remedy is dismissal.
(4a) In Brady v. State, 288 Md. 61 (1980), the COA held that a defendant's speedy trial rights could be violated where there was no showing of any actual prejudice - but the case had to be remanded for further findings on the record.
Brady is significant because the defendant was unaware of the charges pending against him for the period of delay. Despite his unawareness, the COA held that a pretrial delay of constitutional dimension could still trigger the balancing process to determine whether he was deprived a speedy trial.
Length of delay: 14 months. Brady was arrested on June 7, 1977 and charged with breaking and entering and he was released on bail. Twelve days later he received a letter from the District Court advising him that the charge had been dismissed because "[t]he State's Attorney's office in Annapolis has failed to comply as to whether this case would be tried in District Court or the Circuit Court..." Id. at 62. Unknown to Brady, on August 22, 1977, Brady was indicted for the same charge. The notice of indictment and summons for the arraignment were sent to Brady's last known address and returned undelivered. When Brady did not appear on the date set for the arraignment, a bench warrant was issued for his arrest.
From November 1977 to May 1978, Brady was incarcerated for an unrelated case. When that case concluded, Brady was finally served with the warrant for the instant case on May 29, 1978 which was acting as a detainer. Brady was arraigned on June 9, 1978. Brady first learned of the history of the charge at his arraignment, and he moved for a speedy trial. A trial date of July 25, 1978 was set, and Brady filed a motion to dismiss for lack of speedy trial on July 14, 1978. On the July 25th trial date the State sought a postponement because one of its witnesses, a police officer, was absent. Over objection by Brady, the postponement was granted. Brady was tried on August 8, 1978 and found guilty of breaking and entering. The trial court denied his motion to dismiss on speedy trial grounds finding that Brady failed to show actual prejudice.
Reason for delay: The intermediate court stated "we can find little, if any, justification or excuse for the delay. There is no evidence that the slightest attempt was made to notify [Brady] of his indictment. Even the bench warrant issued by the court on September 2, 1977, presumably was ignored by everyone until 'placed in file' on May 17, 1978, without any effort expended to serve it or, as charged by it to 'have his body before the Circuit Court for Anne Arundel County' to answer for his failure to appear. Such seeming unconcern by the sheriff, who was admonished 'Hereof fail not at your peril . . . .', not only constituted a disregard of [Brady's] speedy trial rights, but appears, without any explanation, to be an affront to the court's order." Id. at 63-64.
Assertion of right: Brady asserted his right both when he was charged in the District Court and when he was arraigned in the Circuit Court.
Actual prejudice: The intermediate court said that prejudice "becomes more elusive without awareness that a charge is pending." Id. at 64. The CSA again indicated it was "difficult" to presume prejudice when the defendant did not know of the charge and the CSA concluded by holding "that in the absence of knowledge of a pending charge, some actual prejudice must accompany the delay to compel a dismissal." Id.
The COA granted Brady's petition for writ on the single question of whether the CSA erred by holding that where a defendant was not aware of a pending charge, actual prejudice must be proved to compel dismissal of the charge for denial of a speedy trial? Id.
The CoA found instead that being ignorant of the charges may bring more prejudice to a defendant who is not focusing on the charge, who later may not think of matters as he would have earlier, or where witnesses or other evidence are no longer available. Thus, the defendant's ignorance of the pending criminal charge furnishes no logical basis for refusing to presume prejudice from a long pre-trial delay. Id. at 68-69.
Balancing of the factors: The COA remanded the case to the CSA for application of the balancing test in accordance with the principles set forth in the opinion.
(4b) In Brady v. State, 291 Md. 261 (1981) the COA again granted Brady's writ of certiorari after the CSA affirmed the judgment on remand. This time, the COA reversed the conviction with instructions to dismiss the case based upon a speedy trial violation.
Length of delay: 14 months. The COA said that this delay must be weighed against the State. Although it is sufficient to invoke constitutional issues, the COA does not construe it as controlling.
Reason for delay: The COA said that the State, in the performance of its public trust, has a duty to coordinate the efforts of its various criminal divisions in attempting to locate a defendant. Its failure to do so in the instant case is particularly disheartening. Brady was incarcerated on an unrelated charge for six months and the authorities made no attempt to find him. He remained totally unaware of the pending charges against him. "As if the State's neglect were not manifest and egregious enough at this point, the State sought and obtained a two week postponement, during which time Brady remained in jail." The COA found that "[t]his prosecutorial indifference tips the scales most heavily in Brady's favor." Id. at 267.
Assertion: Brady was excused from having to make an assertion as it was a direct result of the State's neglect in its duties. In this case it cannot weigh against the defendant.
Actual prejudice: The time incarcerated from May 29, 1978 to trial August 8, 1978 was due entirely to the State's neglect and the prosecution could have been instituted while Brady was confined at the Baltimore City Jail. Thus Brady suffered some actual prejudice. With respect to anxiety or concern, Brady had been placed on probation on May 29, 1978 and should have been released, but the detainer kept him incarcerated. "This sudden awareness that he was not free, but still being held in jail for charges which had been dismissed the year before, must have generated a response more than mere anxiety. He had to be frustrated. In which event, the following two months in jail awaiting the outcome of the charges had to exacerbate his concern." Id. Thus, Brady suffered at least some actual prejudice. Lastly, as to the third element of impairment of defense, the COA, thought it may not be readily apparent that he suffered prejudice, the long delay potentially created obstacles in the defendant's ability to present a defense and should not be discounted. Id. at 269. The COA regarded this element as neutral.
Balancing of factors: In balancing the factors, "[t]he factor most determinative of the issue, in this case, is the reason for the delay: prosecutorial indifference. Brady's trial was not delayed because of someone's professional judgment regarding the allocation of scarce resources, but because of the inexcusable failure of the State to check for Brady's presence within the correctional system itself...in our opinion, none of the factors can be found to weigh in favor of the State. We conclude, therefore, that Brady's speedy trial rights were unconstitutionally violated. A dismissal was the appropriate remedy under the facts of this case." Id. at 269-70.
(5) In Epps v. State, 276 Md. 96 (1975), the COA held that delay that of five and one-half months between time of arraignment chargeable to the State when trial was initially postponed to accommodate a tactical decision of the prosecutor to couple the defendant's case with that of his co-defendants was chargeable to the State.
Length of delay: One year and 14 days. Epps and co-defendants were charged with robbery with a deadly weapon. Epps was arrested on August 9, 1972. He remained confined until the date of his trial on August 22, 1973. The COA said that this length was "sufficiently protracted to be 'presumptively prejudicial' and to provoke inquiry into the other interrelated factors which go into the balance.'"
Reason for delay: Epps' first trial date was December 28, 1972. The delay between his arrest and the first trial date is not inordinate. On that date, Epps elected to be tried by a judge on that day and his co-defendants elected a jury trial. No jury panel was in attendance that week. The State did not want the cases to be severed and asked for a postponement. The court granted the postponement stating "There may be [a] delay in granting a trial, because of this last-minute change of heart, but I don't think your clients have any cause to complain that they have been denied a speedy trial since they are the cause of this." Trial was postponed until April 13, 1973 as the first open jury trial date, but then the trial was postponed again because there was no jury court available. The trial was rescheduled for June 12, 1973. On that day they were postponed because the arresting officer had collapsed while on duty and was confined to bed for a least a month. Trial was then rescheduled for August 22, 1973. This delay was neutral.
It is the delay between December 28, 1972 and June 12, 1973 that the COA said is the critical period in the evaluation. The COA said that the delay because of over-crowded court dockets and scheduling problems cannot be classified as wholly neutral, particularly where the defendant has seasonably made known to the trial court his desire to be speedily tried, since a judge "can always take control and order a case assigned for trial."
The delay on December 28th became purposeful to accommodate the State who wanted to keep the cases joined, despite Epps' election to have a court trial that day.
Assertion of right: On December 28, 1972 Epps made an oral motion that he "be tried today and separately." On June 13, 1973 Epps filed a written motion to dismiss the indictment for lack of speedy trial alleging that one of his alibi witnesses was no longer available since he was serving with the U.S. Armed Forces in Korea. The COA said these demands were "entitled to strong evidentiary weight in determining whether [he was] being deprived of the right."
Actual prejudice: The COA reiterated that "an affirmative demonstration of prejudice" is not necessary to prove a denial of the constitutional right to a speedy trial. But in this case Epps suffered actual prejudice. Epps' incarceration from his arrest on August 9, 1972 to trial August 22, 1973 was "an interval which we consider, under the circumstances, to have been oppressive. One of the interests which the right was designed to protect was thus defeated." Also, the delay impaired his defense because his alibi witness who was available on December 28th, was no longer available after February because he was serving in the armed forces in Korea.
Balancing of the four factors: The COA concluded under the facts of the case that the delay in brining Epps to trial, caused by the prosecution and concurred in with the passive cooperation of the court, violated the defendant's right to a speedy trial.
In the fourth and final of the four-article series, we will discuss cases where the Court held that the circumstances surrounding the delay did not constitute a denial of the constitutional right to a speedy trial.