Virginia speedy trial rights under the Sixth Amendment start from the time criminal charges are filed, says Fairfax criminal lawyer

Virginia speedy trial rights are covered both by the Virginia Code (Va. Code § 19.2-243) and the Speedy Trial clause of the federal Constitution’s Sixth Amendment. As a Fairfax criminal lawyer. I underline that Constitutional speedy trial clock starts not from the time of a Virginia criminal defendant’s arrest nor first appearance in court, but from the time that criminal charges are filed in court, in the event that the latter date is the earliest in the foregoing timeline. Reedy v. Commonwealth of Virginia, 77 Va.App. 81 (March 2023). In Reedy, law enforcement took thirteen months to arrest defendant Reedy after the issuance of her indictment for false reporting on a firearm application, to serve. This delay happened despite several reported intervening contacts between the police and Reedy. 

What are the four factors that courts consider when Virginia speedy trial rights are invoked?

For Virginia speedy trial right challenges, whether a “speedy trial violation has occurred requires balancing four main factors—the ‘length of delay, reason for delay, defendant’s assertion of his right, and prejudice to the defendant.’” Reedy ( quoting Howard v. Commonwealth of Virginia, 281 Va. 455, 462 (2011). “An appellant must establish that those factors, when considered together, ‘weigh in his favor.’ Reese (quoting Ali v. Commonwealth of Virginia, 75 Va. App. at 35 (2022) (further citation omitted)). Not all of those four factors need to be proven by a Virginia criminal lawyer, but must all be addressed by the defense and weighed by the court.

Sometimes a Virginia criminal defendant’s only prayer of winning against a prosecution is to raise Constitutional and other procedural defenses

Here, Reedy entered a conditional nolo contendere / no contest plea to one count of perjury, partially in exchange to preserve her right to appeal here, to assert her Virginia speedy trial rights. Sometimes a Virginia criminal defendant’s only prayer of winning against a prosecution is to raise Constitutional and other procedural defenses. However, Reedy’s prospects for having her case considered en banc  ( by the entire Virginia Court of Appeals bench) or by the Virginia Supreme Court are bolstered by her loss before the Virginia Court of Appeals panel being on a 2-1 judicial vote.  The gravamen of Judge Causey’s dissent is: “Reedy is not required to show actual prejudice. Fowlkes v. Commonwealth, 218 Va. 763, 771 (1978)… “’Instead, “[the Barker factors] are related factors that ‘must be considered together with . . . other [relevant]circumstances.’ Ali.” Reedy (with my removal of alteration of internal quotation marks for Ali)… Evidence “of how Reedy’s memory loss affected her defense further supports the conclusion that her defense was likely prejudiced by the delay, and the length of delay did not rebut the presumption of prejudice. At the motion hearing, Reedy testified that she could not remember details about interactions she had with the police within the last six months. By the time of the motion hearing, about twenty-one months had passed since Reedy had allegedly committed perjury.” Reedy.

What should I do if I am served my Virginia criminal charging document late or if my trial date takes place many months after I have been charged with a crime?

If your Virginia speedy trial rights have been or may have been violated, squeeze as much benefit out of that as possible by obtaining and working closely with the right Virginia criminal lawyer. Fairfax criminal lawyer Jonathan Katz is experienced and skilled in pursuing relief for alleged speedy trial violations, and with Virginia DUI and criminal defense overall. Call 703-383-1100 for your free in-person initial confidential consultation with Virginia criminal defense lawyer Jon Katz about your court-pending case.