Over the last few years, numerous articles have been written detailing the large delays in Harris County, Texas before criminal defendants are able to obtain a trial on their cases. Most of these defendants are confined in the Harris County Jail for multiple years, unable to make bond, before they are able to have their day in court. These time lapses appear to be a violation of the inmates right to a speedy trial, but as is often the case, the issue is not as easy as calculating time. The right to a speedy trial is a complex area of the law that requires the appropriate steps by lawyers in order to preserve the speedy trial claim. Here are a couple of the articles documenting this issue followed by a breakdown of the speedy trial right in Texas.
The Speedy Trial Right: The Push for Trial
The Sixth Amendment to the United States Constitution states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” This portion of the Sixth Amendment gives criminal defendants an absolute right to a swift prosecution. The “speedy trial clause” of the Sixth Amendment is aimed at preventing the State from dragging out the criminal process at the detriment of the accused. The three interests that the speedy trial clause protects are: 1) freedom from oppressive pretrial incarceration, 2) mitigation of anxiety and concern accompanying public accusation, and 3) avoidance of impairment to the accused’s defense.
The two stories cited above highlight these three interests and the importance of the speedy trial right to all criminal defendants. A young man that is innocent until proven guilty can sit behind bars in Harris County, Texas for a long time without a trial. He can sit in that cell as an inmate for five, six, seven years before he is able to obtain a trial on the merits of his case. All of the three interests cited by the Supreme Court become relevant when looking at these stories as these inmates deal with lengthy pretrial incarceration, the anxiety of public accusation, and an ever growing possibility that a defense against these criminal allegations will be impaired.
When do the facts in these stories cross the line?
The answer to that question lies in extensive case law delivered by the Supreme Court of the United States. A violation of the speedy trial right of a defendant is determined by applying the balancing test established by the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). The Barker test involves balancing four separate factors to determine if a violation of a defendant’s speedy trial right has in fact occurred. If a violation has occurred, the remedy for the defendant is a dismissal of the case with prejudice. Put differently, the criminal case is dismissed, and the State is barred from refiling charges for that crime. If a violation has not occurred, then the defendant has no remedy under the speedy trial clause.
The four factors to be weighed in Barker are: 1) length of the delay, 2) reason for the delay, 3) the defendant’s assertion of his speedy trial right, and 4) prejudice to the defendant. A District Court or Court of Appeals will take all the facts under the above mentioned factors and do two things: 1) determine whether each factor weighs for or against the defendant and 2) allocate how much weight the factor should hold. Once that determination is made, the court will balance the four factors as a unit to determine if the defendant’s right to a speedy trial has been violated.
- Length of Delay
The length of delay in a speedy trial analysis runs from the time that the defendant is accused until the moment that the defendant receives a trial. Under Texas law, the length of delay must meet a minimum threshold before a Barker analysis will be undertaken by the courts. Texas case law states that a delay of eight months or more from being accused until trial is sufficient to meet that threshold. Once eight months has elapsed, a reviewing court is forced to conduct the balancing test formulated in Barker.
As with all of these factors, the more egregious the circumstances in the case the more heavily a factor can weigh in favor of the defendant or in favor of the State. A delay of nine months is unlikely to cause a reviewing court to weigh the “length of delay” factor heavily in favor of the defendant. However, a delay of many years will certainly allow this factor to weigh heavily in the defendant’s favor in a Barker analysis. As a general rule, the longer the pretrial delay the more likely the reviewing court is to weigh this factor in favor of the defendant.
Attorneys must be very careful when representing a defendant in a case where a speedy trial issue is becoming evident. The Court of Appeals for the Fourteenth Judicial District in Texas has held that all time covered by “agreed resets” will not be included in a speedy trial analysis. State v. Kuri, 846 S.W.2d 459 (Tex. App.—Houston[14th Dist.] 1993). Thus, if a defendant signs an agreed reset for every setting from arraignment to trial he will have zero days on the speedy trial clock. For those of us that practice in Harris County, that means that you are unlikely to ever meet the eight month threshold under Texas law as every court setting ends with the signing of an “agreed reset” form in order to obtain your next court setting. Most times the defendant is not agreeing to reset his case. Instead, the defendant is simply falling in line with the court room procedure in that particular county. In order to preserve your right to a speedy trial, the defendant will have to refuse to sign the agreed resets and continue to push for trial. Signing agreed resets from arraignment through the trial day will insure that the defendant’s right to a speedy trial will have been effectively waived.
- Reason for the Delay
The State has the burden in a Barker analysis to justify the length of time present on the speedy trial clock. If a defendant has been awaiting trial for seven years then the State will have to provide an explanation for the delay. This prong is the State’s opportunity to put evidence before the reviewing court that justifies the significant lapse in time between the defendant becoming an accused and receiving a trial on the merits of his case.
The State’s reasons could be justifiable such as a delay caused by a backlogged court docket, plea discussions with the defendant, or the defendant’s request for more time to prepare for trial. The State could also be seen in a negative light by the court by providing no explanation at all or an explanation that indicates negligence on the part of the State. A well explained reason for the delay will not count against the State in a Barker analysis. However, unexplained time frames or negligent explanations, will count heavily in favor of the defendant.
- Assertion of the Speedy Trial Right
The defendant has no obligation to bring himself to trial. This obligation rests with the courts and the State entity that is responsible for the prosecution. However, under a Barker analysis a reviewing court will look to see if the defendant has acted in a manner that suggests that he really wanted a trial. This stance by the courts is to insure that defendants are not using the speedy trial right solely as a means to a dismissal of the charges. This assertion of the right is often seen through the filing of a motion for speedy trial where the defendant is requesting a trial on the merits of the case. The sooner that this motion is filed in the speedy trial clock the more weight it will carry for the defendant in a speedy trial analysis.
If a defendant has asked for a trial since day one of the accusation then there is no doubt that his intentions have always been to receive a trial on the merits. If a year into the case, and two days before trial, a defendant files a motion for speedy trial then the courts are likely to view the assertion of the speedy trial right as a mere attempt at a dismissal.
- Prejudice to the defendant
The prejudice prong of the Barker analysis is viewed under the lens of the three interests that the speedy trial right was designed to protect: 1) to prevent oppressive pretrial incarceration, 2) minimize the anxiety that accompanies public accusation, and 3) limit the impairment of the accused’s defense. Affirmative prejudice is not needed in every speedy trial claim, but nonetheless, it is a factor that will be weighed by the a reviewing court.
The first interest is straight forward. The length of pretrial incarceration, ability to obtain a bond, and the conditions in which the defendant lives in during incarceration are all relevant to this prong of the analysis.
The courts have looked differently at the second interest – minimize anxiety that accompanies public accusation. The regular anxiety that accompanies public accusation, while relevant, is not heavily weighed in favor of the defendant. Courts will want the defendant to show some sort of mental strain that is beyond our normal expectations in order to weigh the anxiety interest in favor of the defendant.
The third interest is a very important consideration for the reviewing courts. The courts will weigh the prejudice prong heavily in favor of the defendant if any facts exist which suggest that the lapse in time has led to a prejudice against the accused’s ability to form a defense. The disappearance of witnesses, degradation of physical evidence, or changes in witness testimony are all examples of facts that suggest that delay has caused the trial to be less reliable, and in turn, impacted the accused’s ability to defend himself.
Often times it is difficult to formulate a precise prejudice to an accused’s defense against the charges. The courts have recognized this fact in their case law. The courts will assume that a defendant’s case is prejudiced exponentially as more time passes. For each month that passes the reviewing court assumes that the reliability of the trial has become more suspect. Though the Courts recognize this phenomenon, the defendant will still need to show precise prejudice in order to have this portion of the analysis weigh heavily in his favor.
How should attorneys handle cases where these facts arise?
Appropriately handling a speedy trial issue at the trial court level forces attorneys to make a decision on how they would like to pursue their client’s case. They must choose between slow playing a case in hopes of working it out and consistently pushing hard for a trial setting. If you choose to push for trial and develop a speedy trial issue, here are a few things that will aid in preserving and bolstering the speedy trial claim.
- File a motion for speedy trial demanding that the State put you to trial on the case. Many cases are shot down in the appellate courts because the courts believe that the defendant is using the speedy trial clause solely as a vehicle for dismissal. It must be apparent from the record that the defendant wanted a trial, and failed to receive one, for the speedy trial claim to have a good shot. This is especially true considering the extraordinary remedy of dismissal with prejudice.
- Do not sign agreed reset forms. Agreed reset forms in Texas will effectively waive any right your client has to a speedy trial. This is easier said than done in most counties, but if you believe you have a righteous speedy trial issue you cannot sign agreed resets. Signing agreed resets throughout your case will insure that no court conducts the Barker analysis as you fall well short of the eight month threshold to trigger the analysis.
- Only file a motion for dismissal based on a violation of a defendant’s speedy trial right AFTER the motion requesting a speedy trial. The motion for dismissal will likely be the motion that is heard prior to trial, but if you file it first, the District Court or Court of Appeals will assume that you are using the Speedy Trial Clause for dismissal purposes only. You need to show your wish to have a trial prior to using the speedy trial clause as a vehicle for dismissal.
- Request a hearing, and have the District Court decide the issue before you get to the Court of Appeals. It is the responsibility of the defendant to develop the record for a Barker analysis and preserve the issue for appeal. This right cannot be raised on appeal for the first time in Texas. Be sure you have a hearing, fully develop the record in line with Barker, and get a ruling from the District Court.
The Choice you Have to Make
The Court of Criminal Appeals understands the tough decision that the speedy trial right creates for criminal defense attorneys. Do you let time be your friend and continue working with the State toward a resolution? Or do you take a hard stance and request that the case go to trial immediately? The Court of Criminal Appeals understands this dilemma and in Henson stated that:
“Without a requirement of preservation, a defendant would have great incentive not to insist upon a speedy trial and then argue for the first time on appeal that the prosecution should be dismissed because of delay. The requirement of preservation forces the defendant to pick one strategy. He can either fail to insist upon a speedy trial and possibly reap benefits caused by the delay, or he can insist on a prompt trial, and if it is not granted, argue for a dismissal. He may not do both.”
If the defendants in Harris County truly want their day in court, they must push for it aggressively. Sitting back and signing agreed resets will only insure that they continue to sit in the Harris County Jail with no conviction, no trial and ultimately, no remedy.