Speedy Trial - A Primer and Refresher

Part Two - State Speedy Trial Considerations

Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.

This is the second of a multi-part series on speedy trial issues. This article will continue our discussion of Maryland Rule 4-271, Criminal Procedure Article 6-103, and Hicks and its progeny and will review reported decisions discussing where the prosecutor nol prossed a case, often on the eve of trial, and the Court has determined that the nol pros was not done with the intent to circumvent the Rule or where the nol pros did not have the necessary effect to circumvent the Rule.

The Nol Pros Did Not Circumvent the Rule

1. The nol pros had an effect, but not a necessary effect to circumvent the rule in State v. Brown

In State v. Brown, 355 Md. 89 (1999), the State nol prossed the case 43 days before the expiration of the 180 day period. The original pleading was not flawed. The defendant was recharged three months later and the new charges replicated the earlier charges. The Brown Court recognized that a nol pros can be used as a deliberate tactic to avoid an inconvenient or undesired trial date. In Brown, the State was candid that it used the nol pros because it was not ready to proceed to trial since the underwear of the child rape victim had been sent to the crime lab but the results were not yet received. Even though this impacted the 180 day rule, it was not a necessary effect since the prosecutor probably would have received a postponement based on good cause for the DNA. The COA cautioned not to treat every "effect" as a "necessary effect." With 43 days remaining in the original 180 day period, the State could have sought to expedite the DNA testing or could have requested a subsequent good cause postponement beyond 180 days. Thus the nol pros did not have the necessary effect of an attempt to circumvent the requirements. Even though the State did neither, that was of no matter as it was the possibility that the State might have done so at the time the nol pros was entered. In Brown, there was no ruling from the administrative judge denying a postponement, and both parties agreed that if requested, a postponement for good cause would have been granted; thus, there was a possibility the case could have been brought to trial within the remaining 43 days.

2. The nol pros was done for the purpose of correcting a flawed charging document and not to evade the Rule in State v. Glenn

In State v. Glenn, 299 Md. 464 (1984), Glenn and others were charged in district court with distribution of obscene matters. Glenn requested a jury trial and was arraigned. The 180-day time period for commencing trial would have expired on January 13, 1982. Trial was scheduled for November 17, 1981. Before trial the prosecutor concluded that the charging documents were defective because they failed to allege the scienter element that the defendants "knowingly" distributed obscene material. The prosecutor notified defense counsel about the need for an amendment and defense counsel stated he would object. Since the amendment was of substance and not form, the prosecutor nol prossed the cases on the trial date. That same day new corrected charging documents were filed in district court alleging the same offenses. The defendants again demanded a jury trial and the case was transferred to circuit court. The defendants were arraigned. The defendants filed a motion to dismiss the cases based upon the constitutional right to a speedy trial and the Maryland Rules. The circuit court granted the State's speedy trial motion and dismissed the charges with prejudice. The court did not address the constitutional speedy trial contention.

The COA reversed this decision finding that the prosecutor's purpose in nol prossing the charges was not to evade the rule but, "[t]he record clearly establishes, with no basis for a contrary inference, that the charges were nol prossed because of a legitimate belief that the charging documents were defective and because the defendants' attorney would not agree to amendment of the charging documents." Id. at 467. There remained 57 days before the expiration of the 180 day deadline. Upon remand the circuit court was directed to resolve the issue of the alleged denial of the constitutional right to a speedy trial. If the circuit court denies that motion, the defendants are to be promptly retried.

3. The nol pros to amend a flawed indictment, absent bad faith or evidence of the State's motive to delay trial does not act with a purpose or have the necessary effect of circumventing the rule - but the record was incomplete in State v. Huntley

In State v. Huntley, 411 Md. 288 (2009), Huntley was charged with child abuse. Trial was scheduled to begin 179 days after the defendant's first appearance. Id. at 291. A week before trial, the victim's family brought additional information to the State indicating that the dates of the offenses in the charging document were incorrect. Id. at 292. On the day of trial the State moved to amend the indictment, defense objected, and the motion was denied. The State then nol prossed the charges and re-indicted the defendant three weeks later. The circuit court granted the defendant's motion to dismiss the subsequent charges on the basis that the earlier nol pros was to "evade the effect of [the earlier judge's] ruling denying the motion to amend." Id. at 293.

The COA vacated the judgment of the circuit court and remanded for further proceedings. The COA noted that the circuit court did not analyze the issue of whether the State should have discovered the problems with the dates in the initial indictment before it did. Consideration of that issue was necessary to the determination as to whether the State entered its nol pros in good faith. 411 Md. at 302. The COA held that the Curley two-pronged exceptions test, and the concurrent Hicks sanction of dismissal, are inapplicable where the State's nol pros follows a denial of its motion to amend an indictment, at least where bad faith on the part of the State to delay is not shown. Where the State's nol pros is used to remedy a genuinely flawed indictment, the concerns of Curley are not present. The severe sanction of Hicks dismissal is reserved for situations where the State seeks to circumvent the rules and unjustifiably delay a defendant's trial beyond 180-days. Id. at 302-03.

4. The nol pros did not have the effect, actual or intentional, of circumventing the rule in State v. Akopian

In State v. Akopian, 155 Md.App. 123 (2004) Akopian was indicted for robbery and conspiracy to commit robbery. The Hicks deadline was December 17, 2002. Trial was set for September 11, 2002. On September 6, 2002, the State moved to continue the trial date because a police officer who was "an essential witness" was not available on the trial date. The motion was granted and a new trial date of October 22, 2002 was set. On that date the State again asked for a continuance because an essential witness was not available and because the defense filed a motion for appropriate relief regarding identification of the defendant the day before the scheduled trial date. The administrative judge denied the request for the continuance. The State asked for a one day continuance so the officer could be present. The judge said that the jury could be selected on the day the trial was set to begin and, then, because the trial would have started, a continuance would not be needed because the witnesses would not be needed until the next day. The case was called for trial and defense counsel then advised the court the defense had no motions to litigate, the defendant waived his right to a jury trial, and elected a to have a bench trial. A motions hearing and jury selection as had been anticipated by the State and administrative judge. After this change in the defendant's position, the State renewed its motion for continuance, noted that the essential police officer was out on an assignment and not available and, as a result, stating that this is a K9 case, the State was able to begin the trial. The State then announced that it would be nol prossing the counts at this time and re-indicting.

Akopian was re-indicted shortly thereafter with the same charges. An initial appearance was held followed by a status conference on November 1, 2002. Akopian was not transported for the hearing. The prosecutor asked to set in a trial date to avoid the 180 day problem but the Court did not want to schedule a trial date where the public defender had not yet entered or interviewed the defendant. The Court reset the hearing for November 7, 2002 and ordered that Akopian be interviewed by the public defender. At the November 7th hearing Akopian was again unrepresented. Akopian said he planned to get a paid lawyer. The Court said it had a trial date scheduled for January 13, 2003. Akopian said he'd have a lawyer by then. The prosecutor tried to tell the Court when Hicks ran and the Court said "That wouldn't make any difference." The State filed a motion to advance the trial to November 8, 2002 and addressed the speedy trial issue. The Court held a status conference November 15, 2002 and Akopian was unrepresented and apparently still in the process of hiring a lawyer. The State again raised the Hicks deadline. On November 22, 2002 Akopian still had no counsel. On November 27, 2002, Akopian still had no counsel. The Court set the case for trial on December 11, 2002. The trial did not go forward and Akopian's previous counsel entered his appearance on December 13, 2002 and filed a motion to dismiss. A hearing on the motion was conducted on December 20, 2002. The motion to dismiss was granted.

The CSA found that the State here was vigorous in its efforts to advance the trial date to fit within the original 180 day calendar. 151 Md.App. at 141. Further, it noted that the State stood ready to try the case well before the expiration of the 180 day period. The defendant in this case continued to appear without counsel and continually refused the services of the public defender. The CSA held that facts in this case did not indicate that the State used a nol pros to circumvent the 180 day rule. More than 50 days remained in the Hicks period. When the case was originally called for trial on October 22, 2002, the State's witnesses were unavailable due to exigent circumstances of an officer working on a special assignment involving the serial sniper shootings. Also, in denying the State's motion for continuance, the administrative judge indicated his expectation that the trial proceedings would be somewhat delayed by selecting a jury and the State would not reach the then-absent witnesses until at least the second day.

5. The nol pros did not have the effect, actual or intentional, of circumventing the rule in Baker v. State

In Baker v. State, 130 Md.App. 281 (2000), Baker was charged with child abuse and related charges. Hicks would have expired on March 14, 1999. Trial was first scheduled for February 23, 1999. On that day, 19 days before the Hicks deadline, the State nol prossed all counts. Six days later on March 1st, Baker was indicted on the single charge of child abuse. Baker's trial was not held by March 14, 1999. Baker moved to dismiss for violation of Rule 4-271. The motion was denied. Baker was tried and convicted.

The CSA found that the nol pros did not have the purpose of circumventing the 180 day requirement. The prosecutor represented that when he nol prossed the case on February 23, 1999, the 180 day Rule never entered into his mind and the Court accepted as a fact that the prosecutor had no deliberate purpose to circumvent the 180 day rule.

The CSA found that the nol pros did not have the necessary effect of circumventing the rule. The CSA reviewed the earlier cases of Curley, Glenn, Brown, and Ross. In Curley, the State nol prossed the charges on the 180th day, had no witnesses present for trial, and was definitely not ready to proceed on that day. By contrast in Baker, there were still 19 days left in the 180-day period, the State had available witnesses, it just did not believe it was in the best interest of the 9 year old at that time, and the State could have sought a postponement to have the social worker testify in place of the 9 year old. The need to have the social worker testify was not as strong as the need for the continuance in Brown where DNA evidence from the underwear of the child rape victim had not yet been received; but the CSA said the need in Baker was still substantial because it was not in the best interest of the child to testify. The CSA also found that the trial judge may have granted a postponement finding good cause based on these circumstances, and thus Baker is unlike in Ross where the court there made a finding on the record denying the State's request for a postponement. Also, the judge in Baker made no indication that the docket was too crowded to reset the case. Lastly, the nol pros was not the only alternative for the State since the State could have proceeded to trial using the 9 year old. Thus it was held that the nol pros on February 23, 1999 did not have the necessary effect of circumventing the 180 day rule.

6. The nol pros was not done with the purpose nor did it have the necessary effect of circumventing the rule in Collins v. State

In Collins v. State, 192 Md.App 192, 199-200 (2010), the State nol prossed an attempted murder prosecution 40 days before Hicks, because the State had received information that Collins may not have been involved in the crime. Then, three weeks after the nol pros, the State recharged Collins when their investigation led them to believe that Collins actually was one of the perpetrators.

The Collins decision is a good overview of the policy purpose of Hicks, its exceptions, and its application. The Collins Court said that the Huntley holding should be extended to include situations such as in Collins. 192 Md.App. at 207. Huntley is limited to cases where the State unsuccessfully attempts to correct a flawed indictment. In Collins, there was nothing defective about the indictment; but the nol pros was the result of the State's doubt about the degree of Collins' involvement in the attack. The CSA said that the State could have requested a continuance, but instead nol prossed which released Collins from pre-trial detention. The State promptly investigated leads and determined that Collins was in fact criminally responsible and re-charged him within three weeks. The delay was justifiable.

The CSA said they would reach the same result if they applied the Curley test. With respect to the "necessary effect" prong, when the original charges were nol prossed, there were still 40 days left before the expiration of the 180 day period. The CSA stated that this was akin to Brown, where the nol pros was entered 43 days prior to the expiration of the 180 days period and the COA there noted that 43 days provided an ample opportunity for the State to obtain a postponement from the administrative judge for good cause. Id. at 210 (citing Brown, 341 Md. at 620); see also Glenn, 299 Md. at 467 (nol pros with 57 days remaining in the 180 day period). Thus, there was good cause for a postponement and the 40 days remaining before the expiration of the 180 day deadline was more than enough time to obtain one.

With respect to the "purpose" prong, the CSA held that the nol pros was clearly not entered to circumvent either the 180 day rule itself, or a similar effect. Rather, the nol pros was motivated by the State's desire "to make sure that he didn't have the wrong guy" the CSA noted that the record provided no basis for a contrary determination. Id. at 210-211.

Practice Pointers for Defense Counsel

  1. Enter your appearance and demand a speedy trial in writing as soon as possible so that the 180 day countdown being promptly.
  2. Be aware that if you are the party that continues the case beyond the 180 day deadline, recognizing that that is the critical postponement, you have forfeited your standing to thereafter raise any Hicks violation.
  3. Clearly assert the Defendant's demand for a speedy trial at the time of any contested postponements. A general "I object for the record" is a weak assertion. Make a particularized objection specifically noting all prejudice to your client.
  4. If the prosecutor is seeking a postponement that goes beyond Hicks challenge the prosecutor to articulate the specific reasons for the requested postponement, including such information as when the prosecutor became aware of the need to postpone the case, i.e., when the prosecutor was advised of any new information, when the prosecutor subpoenaed witnesses who might now not be available, when the prosecutor made requests of crime labs for forensic examination that the prosecutor now contends are essential to the prosecution and not yet available and, where appropriate challenge the diligence with respect to his/her preparation of the case.
  5. Remember that the lab and the police department are part of the prosecution's team. Deferring responsibility for a delay in the prosecution's readiness because the "lab hasn't completed the examination" requires scrutiny as to why there has been a delay. Some labs wait to do their examination until they believe that the case will actually go to trial - that means any forensic analysis may not occur until months into the processing of the case. Challenge the reasonableness of a delay or good cause based upon such a unilateral decision not begin the forensic examinations. No finger pointing to other part of the "team" should be allowed to go unchallenged.
  6. The closer to the trial that the State decides to nol pros a case, the stronger the challenge should be to demand that the prosecutor to justify, on the record, why an untimely decision to nol pros the case is not being done with a purpose to circumvent Hicks. Be conscious of how many days remain before the Hicks deadline and when appropriate, challenge the prosecutor to get the case rescheduled before the Hicks deadline.
  7. Ask the Court to reset the trial before the original Hicks date and, if the Court declines based upon court congestion or other administrative reasons, try to push for a more specific detailed explanation as to why this case, facing the Hicks deadline, cannot be given the necessary priority on the Court's calendar to have it tried before the Hicks deadline.
  8. In those instances where the State has failed to timely comply with its discovery obligations, and where you really are prepared for a speedy trial (recognizing that all of these practice pointers may be moot where a speedy trial is not in your client's best interest) file a motion to compel discovery. Start making the record so you're laying the foundation for any subsequent argument that the entry of a nol pros is being done to avoid sanctions resulting from the State's failure to comply with its discovery obligations.
  9. Even as you make the record for your Hicks argument, do not lose sight of the possible alternate basis for dismissal based upon a violation of your client's constitutional right to a speedy trial.

Practice Pointers for Prosecutors

  1. Do your best to have the first trial date promptly scheduled. Be conscious of when you're case seems to be in limbo and no scheduling has occurred. Where a continuance has been granted, be diligent in ensuring that the new trial date is actually and promptly set and that there is no unnecessary delay due to administrative negligence.
  2. When all else fails, and if Hicks expires on the scheduled trial date, start the trial. Choose a jury, or start the bench trial, even if all your witnesses won't be available on the first day of trial. Case law supports the position that starting the trial, even if there is some delay after the resuming of the trial, will satisfy Hicks. Convince the judge that once the trial has started, the Court has the discretion, within reason, to control the remainder of the scheduling of the case.
  3. Where there is a legitimate need to continue the case beyond Hicks, get an on-the-record agreement to the new date by the Defendant. Such an agreement will likely be deemed to be an acquiescence to the continuance and will result in the Defendant having been deemed to forfeit any subsequent argument that Hicks has been violated.
  4. Make the record. If you have a good and specific reason for nol prossing the case as the Hicks deadline is approaching, spell it out. A contemporaneous and reasonable basis set forth on the record for nol prossing the case is likely to be better received than one only articulated at a later time when the Defendant has moved to dismiss the case.
  5. If you recognize a problem in going forward with your case, nol pros or request a postponement as soon as possible. This will ensure that a new trial date can be reset as soon as possible and will assist in responding to arguments raising issues of untimeliness or lack of diligence.
  6. Be diligent with respect to your request for forensic examinations. Follow up to make sure such examinations are started promptly, particularly where DNA is at issue. Stay in touch the crime lab to ensure that the lab does not delay in conducting its analysis. Remember that the lab's concept of timeliness in completing its examination may be related to its understanding of the trial date and not with an understanding of your discovery obligation, which occurs much earlier in the process. A delay in requesting or initiating forensic examinations based upon a unilateral belief (later determined to have been mistaken) that the case will result in a plea, is not likely to be considered good cause.

Third Article

In the third article we will discuss constitutional speedy trial issues under the 6th Amendment of the United States Constitution, Barker v. Wingo and its progeny.