Virginia is not the most hospitable of places for criminal defendants, with its crabbed criminal discovery rules that lead to trial by fire, its harsh presumptions of no pretrial bail for too many felonies, and its absence of an automatic appeal from a felony trial conviction.

Yet, we must always pan for gold in any battlefield.

In Virginia, a felony trial generally must commence within five months after probable cause is found at a preliminary hearing (or indictment if no preliminary hearing is held) for defendants detained pretrial, and nine months for those not detained. Va. Code § 19.2-243. That is a magnificent counterpoint to federal appellate speedy trial jurisprudence which generally does not even start the speedy trial analysis until six months has passed, and then compels a four-part balancing test. U.S. Const. Amend. VI; Barker v. Wingo, 407 U.S. 514 (1972).

Courts often find waiver by silence, so the defense must be ready when objecting to prosecutorial trial postponement requests, to make clear that the objection includes the defendant’s speedy trial right assertion and that defendant refuses to waive his or her speedy trial rights. See Raymond Louis Harvey, Jr. v. Virginia, ___ Va. App. ___ (Feb. 21, 2017).

Thankfully, the trial lawyer for Raymond Louis Harvey, Jr. — jailed on no bail pretrial for charges of aggravated malicious wounding and attempted murder — made a similarly clear objection to the prosecutor’s successful trial continuance request, and even followed up with a pretrial motion to dismiss the prosecution for failure to assure him a speedy trial. Harvey. 

Ruling 2-1, Harvey agrees that Harvey’s statutory speedy trial rights were violated, and consequently orders the dismissal of his prosecution. The dissent insists that approbate and reprobate caselaw means that Harvey’s arrangement with the prosecution  — after the trial was continued over Harvey’s objection — for a subsequent trial date outside the statutory speedy trial timeframe, constituted a waiver of Harvey’s speedy trial claim. However, the Harvey majority confirms that Harvey’s verbal assertion of his speedy trial rights was sufficient not to amount to such a waiver. Moreover, from a practical standpoint, a trial court can hardly expect that a defense lawyer automatically will have room on his or her calendar to set a new trial date in a shorter timeframe than Harvey’s trial rescheduling from the continued April 24, 2015, trial date to the new June 12, 2015, trial date. His trial likely was expected to take at least two or more days, and criminal defense lawyers can often be hard-pressed to find even two consecutive days in their calendars so close in time.

Congratulations to Harvey. The 2-1 appellate split in his case suggests possible en banc Court of Appeals reconsideration of his victory, but for now he is victorious.