Category Archives: Speedy Trial & Continuances

38-Year Delay Violates Speedy Trial

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In State v. Ross, the WA Court of Appeals held that a criminal defendant’s constitutional speedy trial rights were violated by a 38-year gap between charging and the defendant’s first appearance in the trial court on the murder charges.

BACKGROUND FACTS

Here, the State charged Tommy Ross in Clallam County with aggravated first degree murder in 1978. But the State did not pursue prosecution of that charge for over 38 years. Instead, the State allowed Ross to be extradited to Canada for trial on another murder charge without ensuring that he would be returned for trial in Clallam County.

And then while Ross was incarcerated in Canada the State made no meaningful effort for decades to obtain his return to the United States for trial. The trial court ruled that the State violated Ross’s constitutional right to a speedy trial by not prosecuting the murder charge against him for over 38 years, and the court dismissed that charge. The State appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the analysis for the speedy trial right under article I, section 22 of the WA Constitution is substantially the same as the analysis under the Sixth Amendment of the U.S. Constitution.

The Court of Appeals used the balancing analysis stated in Barker v. Wingo to determine whether the defendant’s constitutional right to speedy trial was violated. Among the nonexclusive factors we consider are the length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.

Length of Delay.

Here, the Court ruled that the The 38-year delay here was extraordinary and significant to the speedy trial analysis. Consequently, the length of delay factor weighs heavily against the State.

Reason for Delay.

The court explained that the “reason for delay” factor focuses on whether the government or the criminal defendant is more to blame for the delay. A court looks to each party’s responsibility for the delay, and different weights are assigned to delay, primarily related to blameworthiness and the impact of the delay on defendant’s right to a fair trial.

“The State’s deliberate delays will be weighed heavily against it, but even negligence that causes delay will be weighed against the State,” said the Court. Consequently, the Court reasoned that the Prosecutor’s decision to release Ross to Canada without obtaining an enforceable agreement to return him to Clallam County was negligent and weighs against the State.

State Failing to Request Extradition.

The Court reiterated the general rule that when a defendant is incarcerated outside of the country, the State has a constitutional obligation for speedy trial purposes to make a good faith, diligent effort to secure his or her return to the United States for trial. Here, the State’s failure after 1980 to seek extradition or even inquire about obtaining Ross’s transfer to Clallam County weighs against the State.

Assertion of Speedy Trial Right.

The court explained that during the time he was incarcerated in Canada, Mr. Ross made no effort to facilitate a trial on the murder charge. He never demanded that the State bring him to trial or that the State figure out a way to remove him to the United States. He did not waive extradition or request that Canada transfer him to Clallam County for trial. And when given opportunities to return to the United States and face the murder charge, Ross declined and decided to remain in Canada. This conduct is inconsistent with an assertion of the right to a speedy trial.

“Based on Ross’s failure to assert his speedy trial right while incarcerated in Canada, we conclude that the assertion of the right factor weighs against Ross even though his failure is mitigated to some extent,” said the Court.

Prejudice from Delay.

The Court of Appeals reasoned that prejudice to the defendant as a result of delay may consist of (1) oppressive pretrial incarceration, (2) the defendant’s anxiety and concern, and (3) the possibility that dimming memories and loss of exculpatory evidence will impair the defense.

In general, a defendant must show actual prejudice to establish a speedy trial right violation. However, prejudice will be presumed when the delay results from the State’s negligence and there has been “extraordinary delay.”

“Courts generally have presumed prejudice in cases where the delay has lasted at least five years,” said the Court, citing  State v. Ollivier. The Court also cited Doggett v. U.S., a case where the U.S. Supreme Court presumed prejudice against the defendant when the State’s inexcusable oversights caused a delay of six years.

“Applying the four-part balancing analysis set out in Barker, we also conclude that the extraordinary delay in prosecuting Ross violated his speedy trial right. Accordingly, we are constrained to affirm the trial court’s dismissal of the murder charges against Ross.”

In addition, the Court of Appeals found the 38-year length of the delay significant, as was the very strong presumption of prejudice resulting from that lengthy delay. “Considering all the Barker factors, we are constrained to conclude that the balancing test weighs against the State,” said the Court. “Accordingly, we hold that the State violated Ross’s speedy trial right under the United States and Washington Constitutions. Dismissal of the charges against the accused is the only possible remedy for a violation of the constitutional right to a speedy trial.”

Please contact my office if you, a friend or family member face criminal charges and there’s question whether the defendant’s right to a speedy trial were violated. Washington Court rule CrRLJ 3.3(b)(2) states that a defendant must be brought to trial within 60 days of arraignment if he is detained in jail and within 90 days if he is not. The purpose o f this rule is to provide a prompt trial for the defendant once they are prosecuted. Under the rule, a charge not brought to trial within the time limit will usually be dismissed with prejudice unless the defendant requests continuances.

 

State v. Castillo-Lopez: Substituting Counsel & Continuances

In State v. Castillo-Lopez, Division II of the WA Court of Appeals upheld that the trial court’s decision to deny a motion to continue a trial on five counts of Rape of a Child in the Second Degree to allow the defendant’s retained attorney to replace the defendant’s court appointed attorney.

Mr. Castillo-Lopez was charged with having sexual intercourse with his step-daughter “T.S.” on five separate occasions between January 2012 and February 2013. T.S. turned 12 years old in 2012.

The court set the case for trial on July 7, 2014.

On June 19, 2014, Castillo-Lopez argued motions for substitution of counsel and for a continuance of the trial date. Castillo-Lopez argued the case should be continued because his new attorney needed time to prepare and the parties were still awaiting DNA evidence. Although the trial court ruled it would grant the substitution, the court denied the continuance. The Court referenced  “a statute that says the court has to consider also the impact of this on the child . . . (RCW 10.46.085).

On July 3, a different judge presided over a trial confirmation hearing. And again, the trial court made it clear that it would allow the substitution, but would not grant the continuance.

The matter proceeded to trial. The jury found Castillo-Lopez guilty of five counts of rape of a child in the second degree. The trial court sentenced Castillo-Lopez to a minimum of 500 months’ confinement.

Castillo-Lopez appealed on the argument that the trial court denied him his counsel of choice and abused its discretion when it denied his motions to substitute counsel that were dependent upon the court granting his motions to continue the trial date.

The Court of Appeals, however, disagreed. It decided the trial court did not abuse its discretion because the denial of the continuance was based on tenable grounds. In considering these types of motions, a trial court should consider all relevant information because “these situations are highly fact dependent and there are no mechanical tests that can be used.” State v. HamptonFinally, it reasoned that  trial courts should consider all relevant information including the 11 factors described in the most recent version of LaFave’s Criminal Procedure treatise:

(1) whether the request came at a point sufficiently in advance of trial to permit the trial court to readily adjust its calendar;

(2) the length of the continuance requested;

(3) whether the continuance would carry the trial date beyond the period specified in the state speedy trial act;

(4) whether the court had granted previous continuances at the defendant’s request;

(5) whether the continuance would seriously inconvenience the witnesses;

(6) whether the continuance request was made promptly after the defendant first became aware of the grounds advanced for discharging his or her counsel;

(7) whether the defendant’s own negligence placed him or her in a situation where he or she needed a continuance to obtain new counsel;

(8) whether the defendant had some legitimate cause for dissatisfaction with counsel, even though it fell short of likely incompetent representation;

(9) whether there was a “rational basis” for believing that the defendant was seeking to change counsel “primarily for the purpose of delay”;

(10) whether the current counsel was prepared to go to trial;

(11) whether denial of the motion was likely to result in identifiable prejudice to the defendant’s case of a material or substantial nature.

Here, the trial court did not abuse its discretion because the denial of the continuance was based on tenable grounds. It considered relevant information and applied a number of the above-listed factors in making its decision. It also reasoned Castillo-Lopez never expressed dissatisfaction with his appointed counsel. Castillo-Lopez did not want a continuance. Again, the trial court made it clear it would grant the motion for substitution of counsel, but without a continuance. Thus, the denial of the motion for a continuance on July 3, 2014 was not an abuse of discretion because there were no substantial or compelling reasons to continue the trial date and the benefit to Castillo-Lopez was outweighed by the detriment of a continuance on the child victim.

My opinion? The Court should have granted at least  one continuance. Although the crimes were heinous, that’s not the point. Under the 6th Amendment, all defendants deserve a fair trial and to be represented by counsel of their choosing. It takes a lot of time to prepare for jury trial in a multi-count sex case involving Class A felonies. At least one continuance is warranted.

State v. Hampton: You Can’t Replace Your Attorney at 11th Hour.

In State v. Hampton, the WA Supreme Court decided  It was not an abuse of discretion for a trial judge to deny a defendant’s request to delay trial to allow him to replace his public defender with a private attorney.

Mr. Hampton was charged with Rape in the Second Degree. On the eve of his trial, Hampton moved to replace his appointed counsel with a new private attorney on the condition that the trial be continued so his new counsel could prepare. The trial court denied the continuance, so Hampton proceeded with his previously appointed counsel. He was ultimately convicted of Rape in the Third Degree.

The Court of Appeals reversed his conviction, holding that the trial court’s decision violated Hampton’s constitutional right to his choice of counsel because it considered Hampton’s reasons for wanting a new attorney. The Court of Appeals relied on United States v. Gonzalez-Lopez, a United States Supreme Court opinion that held that when a defendant’s right to choice of counsel is erroneously denied, a defendant need not show prejudice in order to obtain relief.

Here, the WA Supreme Court overruled the WA Court of Appeals and upheld Mr. Hampton’s conviction. It reasoned that a trial court has wide latitude to grant or deny a motion to delay trial related to a defendant’s request to change counsel. In making such a decision, trial courts should consider the factual context for the motion, which can include among other factors-a defendant’s reasons for dissatisfaction with existing counsel.

In this case, reasoned the court, the trial court did not abuse its discretion when it denied Hampton’s request to delay trial to allow him to replace his counsel given that (1) he did not make his request until the day his trial was scheduled to start, (2) his trial had already been continued once, (3) the victim/witness opposed the continuance, and (4) he did not explain his dissatisfaction with appointed counsel.

The WA Supreme Court also stated that trial courts can consider all relevant information, including the 11 factors described in the most recent edition of the LaFave Criminal Procedure treatise:

(1) whether the request came at a point sufficiently in advance of trial to permit the trial court to readily adjust its calendar;

(2) the length of the continuance requested;

(3) whether the continuance would carry the trial date beyond the period specified in the state speedy trial act;

(4) whether the court had granted previous continuances at the defendant’s request;

( 5) whether the continuance would seriously inconvenience the witnesses;

(6) whether the continuance request was made promptly after the defendant first became aware of the grounds advanced for discharging his or her counsel;

(7) whether the defendant’s own negligence placed him or her in a situation where he or she needed a continuance to obtain new counsel;

(8) whether the defendant had some legitimate cause for dissatisfaction with counsel, even though it fell short of likely incompetent representation;

(9) whether there was a “rational basis” for believing that the defendant was seeking to change counsel “primarily for the purpose of delay”;

(10) whether the current counsel was prepared to go to trial; and

( 11) whether denial of the motion was likely to result in identifiable prejudice to the defendant’s case of a material or substantial nature.

Based on that, and under the circumstances, the WA Supreme Court concluded that the trial court in this case did not error by considering the defendant’s reasons for dissatisfaction with his appointed attorney in addition to the other circumstances, such as the lateness of the request, the previous continuance granted by the court, and the victim/witness’s opposition to further delay.

Consequently, the WA Supremes reversed the Court of Appeals and held that the trial court did not abuse its discretion when it considered – among other factors – the defendant’s reasons for his dissatisfaction with his appointed counsel.

My opinion? Trial judges are very, very suspicious and pessimistic when defendants try withdrawing/replacing their defense attorney at the 11th hour before trial. Judges know that Prosecutors work hard – and they do – to bring witnesses together and prepare for trial. Judges also know want to avoid any witness tampering and/or intimidation on the part of defendants who may have mistakenly believed they could strike a BBD (bigger, better deal) right before trial. That line of thinking on the part of defendants is not always true, in fact, it’s rarely true. Believe me, once a competent Prosecutor prepares a trial, they’re rarely convinced of going anywhere but forward with their prosecution.

State v. Ollivier: What Happens When the Defense Attorney Wants a Continuance and the Defendant Doesn’t?

Sometimes, the decision of whether to continue a case becomes a touchy subject between defense attorneys and their clients. It makes sense. Many clients want their cases to “just be over with” and/or proceed quickly to trial. Perhaps the client is incarcerated and cannot make bail, the case has “gone on long enough,” the client believes adverse witnesses won’t testify and/or client believes their own testimony will be much better than it actually is. Unfortunately, it’s rarely wise to storm into jury trials unless all the parties – defense attorney included – believe the case is ready. In State v. Ollivier, the WA Supremes weighed in on the issue:

http://www.courts.wa.gov/opinions/pdf/866333.pdf

In Ollivier, the WA Supremes held that a defendant’s speedy trial rights were NOT violated when a defendant’s attorney requested the continuance over the objection of his client. The facts were such that the defendant, Ollivier, was charged with Possession of Depictions of Minors Engaged in Sexual Activity. The depictions involved the use of the defendant’s computer. Ollivier was arraigned on April 18, 2007. His case went pending for 5 years before finally going to trial. There were, in total, 22 continuances. The reasons for the continuances varied: defense counsel sought most of the continuances to allow time for investigation, obtain expert review of computer content, obtain discovery material from the Washington State Department of Corrections and the King County Sheriff’s Office, and because of a new investigator on the case. Some of the requested continuances mentioned circumstances involving the State and some motions were joined by the State. At one point, an arresting officer resigned. Consequently, a continunace was requested to allow time to investigate her misconducts.

The Court reasoned that, in order to establish that multiple continuances of Ollivier’s trial dates violated his constitutional right to trial, a defendant must establish actual prejudice to the ability to prepare a defense. Further, prejudice will only be presumed in extremely unusual cases in which the post-indictment delay lasted at least five years or the government was responsible for the delay by virtue of something beyond simple negligence.

Finally, the Court stated the following: “Nearly all of the continuances were sought so that defense counsel could be prepared to defend. This is an expremely important aspect of the balancing and leads us to conclude that the length of delay was reasonably necessary for defense preparation and weighs against the defendant.”

My opinion? I agree with the WA Supremes. I’ve conducted MANY jury trials in my career, and shall probably conduct many more. Although few, my trial losses typically happen when clients insist on going to trial too early, and usually against my advice.

It’s important for clients and attorneys to have frank discussions of how long it will take to resolve the case. This decision usually depends on whether the client wants to resolve the case or go to trial. And THAT decision usually rests on the evidence contained within witnesses, police reports, forensics, etc. These decisions are not easy. It takes an exorbitant amount of time, preparation and patience for all parties to fashion and execute a successful trial defense. But as the old saying goes, “Cooler heads will prevail.”

Whatcom County Jail Gets Record Number of Inmates

Front page news, Bellingham Herald.

http://www.bellinghamherald.com/2010/02/27/1313259/whatcom-county-jail-gets-record.html?storylink=omni_popular

Whatcom County Jail’s population hit a record high over Presidents Day weekend and since then, law enforcement agencies have been booking fewer people, to ease the crowding.

The jail’s population reached 323 inmates – its operational capacity should be 212 inmates -the weekend of Feb. 13-15, causing the jail to run out of temporary beds and come close to running out of clothes, sheets and other resources.

From Feb. 1 to Feb. 16, an average of 26 people were booked into the jail each day.

Bellingham police have been citing and releasing some people arrested on misdemeanor, and booking and then immediately releasing others.  An officer might take some people to jail to have their photos and fingerprints taken, then have the jail release them.

My opinion?  I’ll state the obvious: the criminal justice system in Whatcom County has reached peaked capacity.  Jails are overcrowded.  Trial calendars are filled.   Trust me, I know.

The easy solution?  Hire an additional judge, build additional courts, and build another jail.  Unfortunately, that’s not going to happen any time soon.   Put simply, The County lacks resources to build jails and/or hire more court staff.  This is not due to sloppy spending on the part of the County.  The Whatcom Superior Court has already eliminated numerous services due to the decrease in revenues.  That said, the likelihood of obtaining more revenue to hire another judge and/or construct another jail is slim to none.

The harder solution – and probably the more criticized; yet WORKABLE solution – is for the Prosecutor’s Office to negotiate more cases to a favorable resolution.  They’re a trial-happy bunch, and unnecesarily so.  Not every case must be brought to trial.  Justice happens when all parties leave the courtroom satisfied with the result.

At any rate, overcrowded jails are symptomatic of larger problems.  The County judiciary is burning the candlestick at both ends.  We’re seeing a decrease in judicial revenues and an increase in inmates.  The state of affairs certainly is alarming.  Why now, and why all of the sudden?

A tough nut to crack . . .

State v. Saunders: A Court Should Not Grant Continuances Without Valid Reasons

Great opinion from the WA Court of Appeals, Division II.

http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=376211MAJ

The defendant’s trial was continued several times.  He objected at every hearing before the court (yes, defense counsel asked for some of them).  One continuance was for further negotiations.  Another was because the case was pending in the prosecutor’s negotiating unit, even though the court noted there was no good explanation.  A third continuance happened because the case was not yet assigned to a trial prosecutor.

The Court reasoned that all three continuances were without adequate basis.  Since there were no convincing/valid reasons for the continuances, the charges were dismissed for violation of CrR 3.3; which is Washington’s speedy trial rule: “Absent convincing and valid reasons for the continuances granted on January 8, Februrary 20, or March 18, the trial court’s order granting the three continuances were “manifestly unreasonable, exercised on untenable grounds and for untenable reasons.” Downing, 151 Wn.2d at 272 (quoting Junker, 79 Wn.2d at 26.  The trial court abused its discretion in granting futher delays in commencing Saunders’s trial.  Under these circumstances, we reverse and remand for entry of an order dismissing the charge against Saunders under CrR 3.3(h).”

My opinion?  Excellent, excellent, excellent!  First, I admire defendants who exercise their rights to speedy trial.  Whatever outcome that’s going to happen will inevitably happen faster because both sides are forced to work the case up.  True, there are times when rushing to battle is not always the best strategy.  Some cases get better with age.  Memories fade.  Witnesses recant and/or move away.  Prosecutors want to dump old cases when their caseloads get too heavy.  Nevertheless, what I deeply despise — and I’ve seen it happen — is when courts lack any good reason to grant the prosecutor’s wishes for continuances.  It’s incredibly frustrating.  State v. Saunders is a great step in the right direction.

This case is vastly similar to State v. Kenyon, which I discussed in my October 7 blog (Indeed, the Saunders court expressly based much of its reasoning from the Kenyon decision).  Clearly, our courts are giving teeth back to the  Speedy Trial Rule.  Good!  I believe the larger reason why this is happening is because shrinking state/judiciary budgets are, consequently, taking away the luxury to continue criminal cases.  I, for one, enjoy the change.  I’d rather go to trial than make up reasons to keep continuing cases.

State v. Iniguez: How Were the Defendant’s Speedy Trial Rights NOT Violated?

Can’t agree with the Supremes on this one . . .

http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=817502MAJ

Following his arrest on First Degree Robbery, Ricardo Iniguez remained in custody pending a joint trial with his codefendant.  An 8-month delay between arraignment and trial took place.  During this time, the State moved for a total of four trial continuances, the last of which the State sought because it learned — belatedly — that a key witness was out of town.  Iniguez objected to all continuances.  The trial court denied his objections and pretrial motions.  At trial, the jury found Iniguez guilty.  He appealed.

The Court of Appeals reversed Iniguez’s conviction.  The court held the eight-month delay between arrest and trial was prejudicial and violated Iniguez’s constitutional right to speedy trial.

However, the WA Supremes decided the delay did not violate the time-for-trial court rule, CrR 3.2, and did not violate the defendant’s Sixth Amendment or Const. art. I, § 22 constitutional right to a speedy trial.

The Court reasoned that Article I, Section 22 of the state constitution does not offer greater protections than the Sixth Amendment to the U.S. Constitution. Using the six-part Gunwall test, the Court determined there was no clear reason to find greater protections in the state constitution, so the two provisions should be applied similarly.

Also, under the four-factor Blakely analysis, the Court also reasoned that although the circumstances of the delay were substantial enough to presume harm to Iniguez, the level of violation of Iniguez’ speedy trial rights wasn’t enough to justify dismissing his case.

The Court ruled 5-4 against Iniguez, holding there was no constitutional violation of his right to a speedy trial.

My opinion?  My thoughts are similar to dissenting Judge Sanders.  I agree with the majority opinion that the length of delay in this case — coupled with the fact that Iniguez spent all of it in custody — gave rise to a presumption of prejudice.  The defendant’s trial delay was nearly nine months.  The delays arose because of the State’s need to interview witnesses, joinder with the co-defendant, scheduling conflicts, and the late discovery of the unavailibility of a key witness one week prior to trial.  None of the delays were caused by Iniguez himself.  Indeed, he objected to continuing his case at every opportunity!  Finally, Iniguez was prejudiced because he was in jail during this entire process.  This is very substantial.  Incarceration carries detrimental effects: loss of job, disruption of family life, idleness, etc.  Time spent in jail is simply dead time.

How were Iniguez’s Speedy Trial rights NOT violated?

Again, bad decision . . .

State v. Kenyon: Courtroom Congestion Is No Reason For Delay

Great opinion from WA Supremes on the Speedy Trial Rule . . .

On February 15, 2006, James Ryan Kenyon was charged with six counts of unlawful possession of a firearm and was incarcerated while awaiting. After multiple delays his case eventually went to trial in August—well beyond the time limits provided by the speedy trial rule (CrR 3.3).

For those who don’t know, under the speedy trial rule, a defendant who is detained in jail must have a trial set within 60 days of arraignment. If a defendant is not brought to trial within the rule’s time limits, the court must dismiss the charges with prejudice so long as the defendant objects within 10 days after notice of trial date is mailed. Some periods of time are excluded when computing the date for trial. For example, continuances granted by the court are excluded, as well as “unavoidable or unforeseen circumstances” that are beyond the control of the court or of the parties.

Kenyon argues his right to a speedy trial was violated as no court was available to hear his case. The State argues the trial court properly followed the scheduled and that his attorney asked for many continuances. The trial court held the delay was “unavoidable” as the judge was presiding over another case and the other judge was on vacation. The Supreme Court however, has said that courtroom congestion—as opposed to scheduling conflicts or trial preparation—is not a valid reason for delay.

The Court determined that despite the allowance for “unavoidable or unforeseen circumstances,” the speedy trial rule still requires trial courts to document the details of unavailable judges and courtrooms. The failure to do so in this case violated Kenyon’s right to a speedy trial and the Court dismissed the charges with prejudice.

My opinion?  Clearly — and rightfully —  the Supremes gave teeth back to the  Speedy Trial Rule.  In short, trials must happen within a certain period of time; and if they don’t, and/or if the case is not continued correctly, then the case should be dismissed.  It’s that simple.  However, for the last few years (decades?) our Appeals courts have taken exception to the general rule; often to the degree where where the exceptions have swallowed the rule.  Needless to say, I’m extremely happy the WA Supremes decided Kenyon in this manner.