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Barker (not Bob) v. Wingo to the rescue

Mar 10, 2014 Barker (not Bob) v. Wingo to the rescue

My clients tend not to care how I win for them as long as I win, even if through a final dismissal rather than through the greater excitement of an acquittal. Recently, I got a case dismissed due to the Sixth Amendment violation of my client’s speedy trial rights; the sweetness of that victory is as great as if we had gotten a not guilty verdict.

My client was originally charged nearly a year ago with driving under the influence of alcohol in Maryland. The first trial date was scheduled by the court clerk’s office for a date four months thereafter. As usual in this court, I filed a speedy trial motion, among my other court filings. My client came from New York City to be at his trial. However, without notice to the defense before the trial date, the prosecutor told me that he was going to move to continue the trial date, because the stopping/ investigating police officer was unavailable; he was at military training, being in the military reserves.

I objected strenuously before the judge against the prosecutor’s continuance request. I pointed out that my client had come all the way from New York for the trial, and that the onus was on the prosecutor to show when (if ever) the prosecutor’s office had the unavailable witness subpoenaed to come to trial, when the witness knew he would have a date conflict (and for what reason), when he told the prosecutor’s of the date conflict, and why the prosecutor had waited until the trial date to seek a postponement. However, because judges routinely grant defense lawyers’ continuance requests in this particular county up through the trial date for DUI cases, it was not surprising that the judge granted the prosecutor a continuance. I made my objection and speedy trial demand.

We returned to court for the next trial date last December. Two days before the trial date, the prosecutor filed a motion to postpone the trial on the basis of the same officer’s military training (again). This court usually does not rule pretrial on contested continuance motions filed so close to the court date. I showed up with my client, and heard the judge mention a relative of his who had died in the military and another who had died as a law enforcement officer, to a defendant who entered a DUI guilty plea before my case was called. His foregoing words perhaps set the stage for the results of my in-court arguments to the judge against the prosecutor’s second continuance request — including those detailed above at the first trial date. The judge made clear that for military training, he was going to grant the continuance.

We returned to court this month. The prosecutor had his witnesses available. I moved, with ultimate success, to dismiss my client’s case for a violation of his Sixth Amendment speedy trial rights, through the following arguments: The Sixth Amendment to the United States Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,..” The balancing factors considered by courts in determining whether speedy trial rights have been violated include the following: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514 (1972). Getting speedy trial relief is no shoe-in even with a very long delay. In Barker, the criminal defendant was denied speedy trial relief even though it took several years to commence his trial. Unlike Barker, who did no assert his speedy trial right before trial, though, I filed a speedy trial demand within a few weeks of my client’s arrest, objected to both trial continuances, and re-demanded a speedy trial each of the two times the prosecutor obtained a continuance.

On this month’s trial date, in presenting my speedy trial motion, I called the investigating police officer to the witness stand, and he confirmed that in 2013, he knew knows months in advance about his military training dates and arranges to get that schedule to the prosecutor’s office. He confirmed that sometimes he receives a subpoena only a month or less before a trial date.

The judge wondered early on whether my client had suffered sufficient prejudice by the trial delays, and enunciated, for instance, whether any defense witnesses had as a result become unavailable. The best I could give the judge was the prejudice of my client’s travel expenses to come to court on the first trial date, his missing pay from work for coming to court, and his holding off on seeking new job opportunities pending resolution of our case at trial.

I reminded the judge that Barker v. Wingo‘s balancing test is a fluid, non-rigid test, not requiring a defense bullseye in each of the four speedy trial factors enunciated in Barker. The prosecutor responded by referencing a state appellate case where the court dealt with a delay of over a year to proceed to trial, and also said that my client’s prejudice was minimal, and might have been more significant if the defense had shown that my client had applied or new employment and been rejected for new employment due to this DUI case. I replied that Barker does not set a one-year safe harbor for prosecutors to commence a trial. Whether one has been denied his or her speedy trial rights is a balancing test.

Bless my staff for organizing our clients’ files so well that I was easily able to present to the judge the court’s notice for the second of three trial dates, which notice was sent to the parties over four months before the second trial date. I told the judge that the first trial date was set later than it should have been (four months after my client’s arrest date), and that the prosecutor should not be excused for not showing more diligent efforts to set a trial date for when its witnesses would be available.

Our case was dismissed in District Court, where such rulings for the defense are final. Our dismissal was right on target.

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