Aug 09, 2017 Virginia speedy trial rights focus on elapsed time, where federal speedy trial rights address harm
THE POWER OF VIRGINIA SPEEDY TRIAL RIGHTS OVER FEDERAL SPEEDY TRIAL RIGHTS
Virginia was the capital of the Confederacy. The Confederacy perpetuated the brutal inhumanity of slavery. When the Confederacy lost the Civil War and the institution of slavery, lynching and Jim Crow followed. Much has changed in race relations over the decades for the better, but Virginia continues with an insufficiently humane criminal justice system that forces a jury (that will recommend a sentence) on defendants, even if that jury may be more racist than the judge; still denies defendants the right to Jencks evidence/statements of opposing witnesses; and even deprives litigants of recorded District Court proceedings unless they arrange for the recordation themselves. Yet, Virginia law provides criminal defendants the magic of the statutory speedy trial rule that focuses on elapsed time, where the federal speedy trial right balances that by looking at the prejudice from any trial delay.
Congratulations to Lee Antonio Turner, who this week got his felony assault conviction overturned because the Commonwealth/prosecution failed to get his trial set within five months after his preliminary hearing where probable cause was found.
Except for continuances sought or agreed to by the defendant, here is the main essence of Virginia’s statutory speedy trial law:
“Where a district court has found that there is probable cause to believe that an adult has committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date such probable cause was found by the district court; and if the accused is not held in custody but has been recognized for his appearance in the circuit court to answer for such offense, he shall be forever discharged from prosecution therefor if no trial is commenced in the circuit court within nine months from the date such probable cause was found…”
Va. Code § 19.2-243.
PRESERVING THE SPEEDY TRIAL RIGHT OBJECTION
Praised be Turner’s lawyer for (1) correctly counting that the then-continuously jailed (pretrial) Turner’s trial date exceeded that five-month and (2) putting his objection to that delay on the record.
And get this: ‘A defendant does not waive his right to a speedy trial merely because he remains silent or does not demand that a trial date be set within the prescribed period.'” Turner (citation omitted).
The great outcome in Turner arises not from any woolly-headed liberal Virginia appellate judges, but instead a faithfulness to the letter of the law and consistency in Virginia speedy trial jurisprudence.