Determining a Violation of One’s Speedy Trial Rights

Every criminal defense has the right to a speedy trial.

“The Sixth Amendment of the United States Constitution guarantees that ‘in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.’” State v. Young, 321 P.3d 1127, 1133 (Utah 2013) quoting U.S. CONST. amend. IV. The right to a speedy trial arises after an arrest. See Doggett v. United States, 505 US 647, 653 (1992). When a defendant’s speedy trial rights have been violated, it “leads to the unsatisfactorily severe remedy of dismissal of the indictment.” Barker v Wingo, 407 U.S. 514, 522 (1972).

The United States Supreme Court has laid out a four factor “balancing test, in which the conduct of both the prosecution and the defendant are weighed.” Id. at 530. These factors come from the Barker case and they are, “length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. These factors are related and must be considered together in a balancing process to determine if a defendant’s speedy trial rights were violated. See Young, 321 P.3d at 1133.

Length of Delay

“The Supreme Court suggested in Doggett v. United States that a delay approaching one year is presumptively prejudicial.”  Id. at 1133-1134.

Reason for Delay

There are different reasons for delay of prosecution, some of which are neutral and others which are improper.  See Young, 321 P.3d at 1134.  Whenever the reasons are due to the government’s failure to prosecute, “the ultimate responsibility for such circumstances must rest with the government rather than with defendant.” In Doggett, an indictment was issued against the Defendant but the government failed to prosecute him for 8-12 years.  The government contended that they could not find him and that was the reason for the delay.  The US Supreme Court disagreed and stated that the defendant was living openly in Virginia and was not doing anything to avoid detection.  If the government had actually pursued finding him, they would have.  The court found the government’s pursuit of the Defendant negligible and weighed the reason for delay against the government.

Defendant’s Assertion of his Rights

As to the third Barker factor, Doggett also gives guidance. In that case, the government provided no evidence that Defendant avoided prosecution until he was arrested so the court held that “Doggett is not to be taxed for invoking his speedy trial right only after his arrest.”  Id. at 654.

Prejudice to Defendant

The US Supreme Court found that “delay between formal accusation and trial threatens to produce more than one sort of harm, including oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the accused’s defense will be impaired by dimming memories and loss of exculpatory evidence.”  Doggett, 505 US at 654.  Of those prejudices, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.”  Barker, 407 US at 532.

Unfortunately, showing prejudice in defending the charges is very difficult to prove.  “Barker explicitly recognized that impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence testimony can rarely be shown.”  Doggett, 505 US at 655.  Thus, courts “generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways neither party can prove, or for that matter, identify.”  Id. at 655-656.  The US Supreme Court continued:

Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. And such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows. Thus, our toleration of such negligence varies inversely with its protractedness, and its consequent threat to the fairness of the accused’s trial. Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state’s fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority.

Id. at 657 (Internal citation removed).

In Doggett, the Court found the government’s negligence of failing to diligently prosecute defendant prejudiced his defense, even though he could not allege specific prejudicial facts.

In sum, if an accused’s case has been pending for more than a year without the government working toward arresting the defendant or otherwise hailing him to court, he may be able to get the case dismissed for a speedy trial violation.

A Domestic Violence Conviction Carries Special Penalties

A domestic violence conviction can carry some very unique penalties including a sentencing protective order.

Domestic violence is not a separate crime. Instead it is a category or moniker that attaches to other types of charges when the crime is committed against a cohabitant. Basically, any crime involving violence or physical harm or threats of violence or physical harm will fall under the “domestic violence” category. This means that even the most simple of crimes such as a disorderly conduct infraction can be considered domestic violence.

Domestic violence is treated differently by the Utah Legislature – it’s treated much more harshly in the penalty face of a case. For example, when someone is convicted of a domestic violence offense they are automatically placed in an enhancement category which makes it so any subsequent DV charge within a five year period is increased one degree.

The court, as part of sentencing can issue a sentencing protective order prohibiting the defendant from having any contact with the victim for the duration of the defendant’s probation, which can be anywhere from six months to thirty-six months. The court can also order the defendant to be on an electronic monitoring system such as a GPS. Additionally, the court can order the defendant to reimburse the victim for any counseling fees incurred and reimburse DCFS for costs incurred. Finally, the court can order the defendant to undergo domestic violence counseling.

Probation for a Domestic Violence Conviction

The court, if contemplating putting the defendant on probation, can condition the probation on an order that includes any one of the following:

• enjoining the perpetrator from threatening to commit or committing acts of domestic violence against the victim or other family or household member;
• prohibiting the perpetrator from harassing, telephoning, contacting, or otherwise communicating with the victim, directly or indirectly;
• requiring the perpetrator to stay away from the victim’s residence, school, place of employment, and the premises of any of these, or a specified place frequented regularly by the victim or any designated family or household member;
• prohibiting the perpetrator from possessing or consuming alcohol or controlled substances;
• prohibiting the perpetrator from purchasing, using, or possessing a firearm or other specified weapon;
• directing the perpetrator to surrender any weapons the perpetrator owns or possesses;
• directing the perpetrator to participate in and complete, to the satisfaction of the court, a program of intervention for perpetrators, treatment for alcohol or substance abuse, or psychiatric or psychological treatment;
• directing the perpetrator to pay restitution to the victim; and
• imposing any other condition necessary to protect the victim and any other designated family or household member or to rehabilitate the perpetrator.

One or more of the above orders can be included in a sentencing protective order or simply as probation conditions and they can last for the duration of the defendant’s probation.

All an officer needs to make a traffic stop is “reasonable suspicion” that a crime was committed or is about to be committed.

Reasonable Suspicion – Too Easy to Satisfy

In State v. Welker, 2014 UT App 284, an opinion handed down just a few days ago, the Utah Court of Appeals reaffirmed just how easy the reasonable suspicion standard is to meet for law enforcement. “Reasonable suspicion” is the term given for the standard that law enforcement must meet before legally being able to stop a vehicle occupant to investigate criminal activity.

In the Welker case the police received a phone call from a woman who was at her apartment and saw a man in a truck who she believed “may have been” trying to enter a carport of a vacant apartment or “possibly” trying to burglarize her apartment or steal her trailer. This suspicious person was also looking in windows with a flashlight.

An officer responded to the scene, saw a truck which matched the description the caller gave leaving the area and made a traffic stop. Upon investigating the officer the police officer determined that the driver was operating his vehicle under the influence of alcohol or drugs to the point of being impaired.

On appeal the court of appeals determined that the officer acted appropriately and under the law of reasonable uspicion. The court reiterated the standard that must be met to make a traffic stop: A traffic stop is permitted “when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.” Welker argued that the officer did not have reasonable suspicion because he did not describe any specific criminal conduct or any specific facts that he observed that could lead to an inference of criminal activity. The court rejected Welker’s arguments (big surprise) and found that the officer was not required to provide the specifics Welker wanted. Instead, all the officer needed to satisfy was that “as long as the underlying facts, and reasonable inferences drawn from those facts justify the conclusion that reasonable suspicion existed at the inception of” of the stop, the Fourth Amendment is satisfied.

Another loss for a criminal defendant in Utah. Who knows, one of these days an appellate court in Utah might actually stand up for individual liberty over state power. Don’t hold your breath.