Editor's Comment: Hurry Up and Wait - By Sarah Roland

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Thursday, December 14th, 2017

In this season of anticipation, the prominence of the “hurry up and wait” factor is ever-present and undeniable. It always exists in our profession—waiting on clients, waiting to get paid, waiting on judges, waiting on juries—and never seems to end. And the irony of all the waiting is that we are expected to be present, ready, and on time, every time. Consistently showing up ready, unafraid, and on time is half the battle of our profession.

But how often does it happen that we have a client come in to our office after arrest, we file our request under Article 39.14 and maybe an open records request, and then the file just sits for months without any action from the state because the state is waiting on reports from the crime lab, contact with the complainant, prior judgments of conviction from out of state, etc. Consider, the wait for us, as lawyers defending our clients, can be stressful and a time of anxiety. Imagine how that stress and anxiety must be significantly greater for our clients. Should they sign up for the spring semester of college until the case is resolved? Should they move to take that new job? Should they put off having a baby? And so on. As Tom Petty reminded us, “the waiting is the hardest part.”

This is where we, as a profession, need to be more vigilant about filing speedy trial motions.

Recently, the Second Court of Appeals had an opportunity to address and recap speedy trial precedent, particularly as it applies to a defendant already serving time in federal prison. See State v. Marks, No. 02-16-00434-CR (Tex. App.—Fort Worth, October 19, 2017) (mem. op.) (not designated for publication). While the opinion offers no novel legal rules or principles, it serves to remind us that all of us enjoy the right to a speedy trial, and that we should always invoke that right on behalf of our clients. After all, just like the state refusing to disclose information about a confidential informant, the best remedy under the law exists for a speedy trial violation—a dismissal of the charging instrument. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973) (remedy for speedy trial violations is dismissal); Tex. R. Evid. 508(c)(2) (remedy for failure to disclose information regarding confidential informants is dismissal).

The Sixth Amendment to the United States Constitution guarantees the accused’s right to a speedy trial. Zamora v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002); Orand v. State, 254 S.W.3d 560, 565 (Tex. App.—Fort Worth 2008, pet. ref’d.) In determining whether this right has been violated, courts weigh and balance four factors: (1) length of the delay; (2) reasons for the delay; (3) assertion fo the right; and (4) prejudice to the de­fen­dant resulting from the delay. See Barker v. Wingo, 407 U.S. 514, 530–32, 92 S.Ct. 2182, 2191–93 (1973) (creating test under federal constitution); Cantu v. State, 253 S.W.3d 273, 280 n. 16 (Tex. Crim. App. 2008) (stating that test under Texas constitution uses same four Baker factors); see also State v. Jones, 168 S.W.3d 339, 346–52 (Tex. App.—Dallas 2005, pet ref’d.) (applying Baker factors to motion to dismiss for alleged speedy-trial violation; State v. Marks, No. 02-16-00434-CR (Tex. App.—Fort Worth, October 19, 2017) (memorandum opinion) (applying Baker factors to motion to dismiss for alleged speedy-trial violation).

The length of the delay is measured from the time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 321 n. 12, 92 S.Ct. 455, 463 n. 12 (1971). Generally, depending on the nature of the crime charged, courts have found post-accusation delay presumptively prejudicial when it approaches one year. Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 2691 n. 1 (1992); Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003).

If a presumptively prejudicial delay has occurred, the State bears the initial burden of justifying the delay. Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1192 (1995). It is the State that is responsible for getting a defendant to trial, not the defendant himself. Barker, 407 U.S. at 527, 92 S.Ct. at 2190 (“A defendant has no duty to bring himself to trial”). In fact, the State must try to prosecute a person who is in federal custody even if that defendant is out of state. Smith v. Hooey, 393 U.S. 374, 382–83, 89 S.Ct. 575, 579 (1969). A deliberate attempt to delay a trial, for example, is weighed heavily against the State, while more neutral reasons, such as negligence or overcrowded dockets, are still weighed against the State but less heavily. Munoz, 991 S.W.2d at 822. Bad faith on the part of the State is not a prerequisite to a speedy-trial violation; official negligence can suffice. See Marks, No. 02-16-00434-CR (Tex. App.—Fort Worth 2017) (citing Doggett, 505 U.S. at 656–57, 112 S.Ct. at 2693, and including an in-depth discussion about bad faith).

The third Barker factor that a trial court must consider is the defendant’s assertion of his right to a speedy trial. 407 U.S. at 531, 92 S.Ct. at 2192; Munoz, 991 S.W.2d at 825. Consider, then, discussing the right to a speedy trial with your client at the beginning of representation and perhaps including such a request alongside a timely request for discovery pursuant to Article 39.14.

The final Barker factor examines whether and to what extent the delay has prejudiced the defendant. Cantu, 253 S.W.3d at 285. Generally, three interests are considered in determining prejudice: (1) preventing oppressive pretrial incarceration; (2) minimizing the accused’s anxiety and concern; and (3) limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. But proof of actual prejudice is not required when the delay is excessive, because such a delay “presumptively compromises the reliability of a trial in ways that neither party can prove or even identify.” Shaw, 117 S.W.3d at 890. If an accused can show prejudice, the burden shifts to the State to prove that the accused suffered no serious prejudice beyond that which ensued from ordinary and inevitable trial delay. Munoz, 992 S.W.2d 818.

“Hurry up and wait” is a given in our profession. We deal with it daily. But let’s all remember that there is something we can, and should, do to address the excessive wait times between arrest and trial that some of our clients unnecessarily suffer.

During this holiday season, here’s to hoping we will all be more mindful, less judgmental, ready to forgive, and at peace in the coming year.