Monday, 1 August 2016

Denial of a speedy trial                                                        

A defendant in a criminal case has a right to a speedy trial under the Sixth Amendment of the American Constitution and Section 11 (b) of the Canadian Charter of Rights and Freedoms. A person's right to a speedy trial arises once the police have formally arrested that person for a crime.

Recently, I represented a friend who waited three years for his trial. He was charged with driving his friend’s car that had no public liability insurance. I brought in a motion to dismiss the charge on the basis that he had been denied his right to a speedy trial. The motion was granted.                               

I will now present to you an American case where the issue of the denial of a speedy trial was raised. The crime committed was far more serious than the one I just told you about. The appeal of the case I am now going to tell you about was heard by the Supreme Court of the United States. Mr. Justice Powell wrote the decision which was affirmed by the other justices of the court.

On July 20, 1958, in Christian County, Kentucky, an elderly couple was beaten to death by intruders wielding a tire iron. Two suspects, Silas Manning and Willie Barker, were arrested shortly thereafter.

The grand jury indicted them on September 15. Counsel was appointed on September 17th, and Barker's trial was set for October 21st. The Commonwealth had a stronger case against Manning, and it believed that Barker could not be convicted unless Manning testified against him. Manning was naturally unwilling to incriminate himself. Accordingly, on October 23rd, the day Silas Manning was brought to trial, the prosecutor sought and obtained the first of what was to be a series of 16 continuances of Barker's trial. Barker made no objection. By first convicting Manning, the Commonwealth would remove possible problems of self-incrimination and then would be able to obtain his testimony against Barker.

The prosecution encountered more than a few difficulties in its prosecution of Manning. The first trial ended in a hung jury. A second trial resulted in a conviction, but the Kentucky Court of Appeals reversed the verdict because of the admission of evidence obtained by an illegal search. At his third trial, Manning was again convicted, and the Court of Appeals again reversed the verdict because the trial court had not granted a change of venue.  A fourth trial resulted in a hung jury. Finally, after five trials, Manning was convicted, in March, 1962, of murdering one victim, and, after a sixth trial, in December, 1962, he was convicted of murdering the other victim.

Up to that latter date, he waited 3 years, 7 months, 23 days for his trial from the time of his arrest.

The Christian County Circuit Court holds three terms each year -- in February, June, and September. Barker's initial trial was to take place in the September term of 1958. The first continuance postponed it until the February, 1959, term. The second continuance was granted for one month only. Every term thereafter for as long as the Manning prosecutions were in process, the Commonwealth routinely moved to continue Barker's case to the next term. When the case was continued from the June, 1959, term until the following September, Barker, having spent 10 months in jail, obtained his release by posting a $5,000 bond. He thereafter remained free in the community until his final trial. Barker made no objection to the delays through his counsel, to the first 11 continuances.

When, on February 12, 1962, the Commonwealth moved for the twelfth time to continue the case until the following term, Barker's counsel filed a motion to dismiss the indictment. The motion to dismiss was denied two weeks later, and the Commonwealth's motion for a continuance was granted. The Commonwealth was granted further continuances in June, 1962, and September, 1962, to which Barker did not object.                             

In February, 1963, the first term of court following Manning's final conviction, the Commonwealth moved to set Barker's trial for March 19th. But on the day scheduled for trial, it again moved for a continuance until the June term. It gave as its reason the illness of the ex-sheriff who was the chief investigating officer in the case. To this continuance, Barker objected unsuccessfully. This was the first time he had raised the issue that he was being denied a speedy trial.  

The witness (Manning) was still unable to testify in June, and the trial, which had been set for June 19th, was continued again until the September term over Barker's objection. This time the court announced that the case would be dismissed for lack of prosecution if it were not tried during the next term. The final trial date was set for October 9, 1963. On that date, Barker again moved to dismiss the indictment, and this time he specified that his right to a speedy trial had been violated. The motion was denied, The trial commenced with Manning as the chief prosecution witness.  Barker was convicted and given a life sentence.

Barker waited 5 years, 2 months and 19 days from the time of his arrest until the day of his trial. None of the delays were caused by him.

The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system. In addition, persons released on bond for lengthy periods awaiting trial have an opportunity to commit other crimes.

It must have been of little comfort to the residents of Christian County, Kentucky, to know that Barker was at large on bail for over four years while accused of a vicious and brutal murder of which he was ultimately convicted. Moreover, the longer an accused is free awaiting trial, the more tempting becomes his opportunity to jump bail and escape. Finally, delay between arrest and punishment may have a detrimental effect on rehabilitation.

If an accused cannot make bail, he is generally confined, as was Barker for 10 months, in a local jail. This contributes to the overcrowding and generally deplorable state of those institutions. Lengthy exposure to these conditions has a destructive effect on human character, and makes the rehabilitation of the individual offender much more difficult. At times the result may even be violent rioting. Finally, lengthy pretrial detention is costly. The cost of maintaining a prisoner in jail varies from $3 to $9 per day, and this amounts to millions across the Nation. In addition, society loses wages which might have been earned, and it must often support families of incarcerated breadwinners. These are the reasons why bail is often granted, even to persons accused of murder.

A second difference between the right to a speedy trial and the accused's other constitutional rights is that deprivation of the right may work to the accused's advantage. Delay is not an uncommon defense tactic. As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof. Thus, unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself. However it certainly would if the accused has a witness that can substantiate his alibi and his witness has moved in the interim. I successfully got a case thrown out because of the delay of my client`s trial. He waited a year and a month before his trial, his only witness moved to Europe.

Finally, and perhaps most importantly, the right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. It is not possible definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial. If, for example, the State moves for a 60-day continuance, granting that continuance is not a violation of the right to speedy trial unless the circumstances of the case are such that further delay would endanger the values the right protects. It is impossible to do more than generalize about when those circumstances exist. There is nothing comparable to the point in the process when a defendant exercises or waives his right to counsel or his right to a jury trial.

The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence, because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a an exclusionary rule or a reversal for a new trial, Perhaps because the speedy trial right is so slippery, two rigid approaches are urged upon us as ways of eliminating some of the uncertainty which courts experience in protecting the right of the defendant.

The first suggestion is that the courts accept the fact that the American Constitution and the Canadian Charter requires a criminal defendant to be offered a trial within a specified time period. The result of such a ruling would have the virtue of clarifying when the right is infringed and of simplifying courts' application of it. Recognizing this, some legislatures have enacted laws, and some courts have adopted procedural rules which more narrowly define the right. The United States Court of Appeals for the Second Circuit has promulgated rules for the district courts in that Circuit establishing that the government must be ready for trial within six months of the date of arrest, except in unusual circumstances, or the charge will be dismissed. This type of rule is also recommended by the American Bar Association. The Canadian courts give the prosecution a bit more time to go to trial. 

Just recently, the Supreme Court of Canada has ruled that the period of delay should not exceed 18 months in provincial courts and 30 months in Superior courts.

The second suggested alternative would restrict consideration of the right to those cases in which the accused has demanded a speedy trial. Most States have recognized what is loosely referred to as the demand rule, although eight States reject it. It is not clear, however, precisely what is meant by that term. Although every federal court of appeals that has considered the question has endorsed some kind of demand rule, some have regarded the rule within the concept of waiver, whereas others have viewed it as a factor to be weighed. The demand rule provides that unless a defendant makes some attempt to resist postponement by the prosecution or demands immediate trial, he waives his Sixth Amendment right.

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. The judges can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right to a speedy trial. Though some might express them in different ways, the judges generally identify four such factors: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. In Canada, those are requirements that the defendants must raise when seeking a dismissal of the charge against them because of them being denied a speedy trial.

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government, rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. Of course, delaying the trial for too many months won`t get much sympathy from the trial judge.

A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants in which the speedy trial right was designed to protect. There are three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record, because what has been forgotten can rarely be shown.

The societal disadvantages of lengthy pretrial incarceration is obvious  but the disadvantages for the accused who cannot obtain his release are even more serious. The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose these problems on those persons who are ultimately found to be innocent. Finally, even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility. 

With respect to Barker`s situation, this is what the court hearing his application had to say;

“The difficulty of the task of balancing these factors is illustrated by this case, which we consider to be close. It is clear that the length of delay between arrest and trial that was well over five years was extraordinary. Only seven months of that period can be attributed to a strong excuse; the illness of the ex-sheriff who was in charge of the investigation. Perhaps some delay would have been permissible under ordinary circumstances so that Manning could be utilized as a witness in Barker's trial, but more than four years was too long a period, particularly since a good part of that period was attributable to the Commonwealth's failure or inability to try Manning under circumstances that comported with due process.” unquote

It is apparent that had Barker not so clearly acquiesced in the major delays involved in this case, the result would have been otherwise. Although a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental, and the duty of the charging authority is to provide a prompt trial. But in Barker’s case, he didn’t actually try to delay his trial he just didn’t complain about the delay. That probably wouldn’t have speeded up the trial process but it would have hindered his attempt to some degree to ask that his motion to stop further proceedings against him with respect to the murder charge he was facing.

Of course, cases will differ among themselves as to the allowable time between charge and trial so as to permit prosecution and defense adequately to prepare their case. But unreasonable delay in run-of-the-mill criminal cases cannot be justified by simply asserting that the public resources provided by the State's criminal justice system are limited, and that each case must await its turn. That approach would subverts the State's own goals in seeking to enforce its criminal laws.

The decision of his appeal was as follows:

“A defendant's constitutional right to a speedy trial cannot be established by any inflexible rule, but can be determined only on an ad hoc balancing basis in which the conduct of the prosecution and that of the defendant are weighed. The court should assess such factors as the length of and reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. In this case, the lack of any serious prejudice to the petitioner (Barker) and the fact, as disclosed by the record, that he did not want a speedy trial outweigh opposing considerations, and compel the conclusion that petitioner was not deprived of his due process right to a speedy trial.” unquote

Since he was previously convicted of murder, he is serving a life sentence in the Tennessee State Penitentiary.  

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