SPEEDY TRIAL VIOLATIONS 4 Serious Cases Dismissed
The Georgia Court of Appeals recently ruled that four defendants were entitled to have their cases dismissed due to the violation of their constitutional right to a speedy trial. Davis v. State, A09A1053; State v. Moses, A09A1284; Ditman v. State, A09A2020; State v. Pickett, A09A1285.
In Davis, the defendant was arrested on March 26, 2005 in Gwinnett County and indicted on August 17, 2005 for burglary, armed robbery, aggravated assault, kidnapping with bodily injury, kidnapping, and four counts of possession of a firearm during a felony. Davis filed a motion to dismiss the indictment on October 4, 2006 asking for immediate trial or dismissal of the indictment. The judge denied the motion but did reduce Davis’ bond. Davis was released from custody in December 2006. On April 25, 2008, Davis filed a second motion to dismiss the indictment. Davis’ case was called to trial on April 28, 2008, approximately 35 months after Davis’ arrest.
Moses was arrested around December 9, 2004, in Fulton County and indicted about December 21, 2004 for armed robbery, aggravated assault, possession of a firearm during a felony and possession of a firearm by a convicted felon. His case was called for trial on June 12, 2006, but dismissed for want of prosecution because the state was not ready to proceed. The case was re-indicted on June 30, 2006. Moses was re-arrested on August 12, 2006 and released on bond on September 11 or 12, 2006. On November 14, 2006, Moses filed a motion to dismiss the indictment asserting a violation of his constitutional right to a speedy trial. Moses asserted a demand for trial noting that his case had not been placed on a trial calendar. The motion was granted on January 8, 2009.
Ditman was arrested on October 11, 2005 in Cobb County and indicted on May 4, 2006 for aggravated child molestation and child molestation. On May 22, 2006, Ditman filed a demand for speedy trial. His case was placed on a June 13, 2006 trial calendar. On that date, Ditman’s attorney requested a continuance based in part on the state’s failure to provide discovery. The prosecutor told Ditman’s attorney that the discovery would be provided if Ditman withdrew the speedy trial demand. As a result, on July 27, 2006, Ditman’s attorney, without Ditman’s knowledge or consent, withdrew the speedy trial demand. The prosecutor provided the discovery a month later. On April 17, 2007, Ditman’s lawyer withdrew from his case. A new lawyer was appointed on May 31, 2007. On June 6, 2007 Ditman filed a motion for a judgment of acquittal. A few days later he was given a consent bond of $1,000.00. On April 23, 2008 the judge held a hearing to consider the June 6th motion and by order dated October 17, 2008, denied the motion.
Pickett was arrested in Fulton County on June 23, 2003 and charged with child molestation, aggravated sexual battery, and criminal attempt to commit rape. He was released on bond on July 2, 2003. The case was indicted on April 7, 2006. On November 19, 2008, Pickett filed a motion to dismiss for violating his right to a speedy trial. The motion was granted.
The Court of Appeals explained that an alleged violation of the constitutional right to speedy trial must be analyzed using the factors set forth in Barker v. Wingo, 407 U.S. 514 (1972). Before getting to the four factors, the court must first determine if the delay is presumed to be prejudicial. A delay of more than one year from arrest to trial raises a presumption of prejudice to the defendant. Hayes v. State, 298 Ga. App. 338 (2009). The 35 month delay in Davis, 4 year delay in Moses, 36 month delay in Ditman, and 5 year delay in Pickett were presumptively prejudicial thus triggering further analysis under the four factors. Next, the court must consider the four factors under the Barker test: (1) the length of the delay; (2) the reasons for the delay and whether the delay is attributable to the state or defense; (3) the defendant’s assertion of the right to a speedy trial in due course; and (4) the prejudice to the defendant.
Length of Delay. Even though the court considers the length of time in determining if the amount of delay is presumptively prejudicial, it must also consider the length of delay as one of the four main factors. The court should eliminate any portion of the delay attributed to the defendant. In Davis, the defendant had requested continuances for two months, and these months were subtracted from the 35 month delay. The four year delay in Moses was weighed against the state. The 36 month delay in Ditman was also weighed against the state as was the delay in Pickett.
Reasons for Delay. The weight to be given to the reason for delay depends on the reason given for the delay. The weight can range from deliberate delay (for harassment or coercion to take a plea) to negligence (the complexity of the case, the need for additional investigation, or the state’s inability to locate witnesses despite a good faith effort to do so) with deliberate delay weighed more heavily. Hayes v. State, 298 Ga. App. 338 (2009).
Davis’ case was put on a trial calendar in December 2006 and was placed on each month’s trial calendar until August 2007. Between August 2007 and January 2008, the fourth prosecutor assigned to the case sought continuances to have certain pieces of evidence tested for DNA. The state did not give a reason for the five month delay from Davis’ arrest and indictment or the sixteen month delay from indictment to the first time the case was placed on a trial calendar. The state was also responsible for the delay in Moses and Pickett. The reason for the delay in those cases was an over crowded docket and the re-assignment to different assistant district attorneys. The Court of Appeals held that the judge in Ditman erred to the extent the judge found Ditman responsible for the delay by filing pretrial motions and changing attorneys. The Court of Appeals also found that the state’s deliberate decision to demand Ditman waive his speedy trial demand in order to receive his discovery must be weighed more heavily against the state.
Assertion of the Right. Because a defendant may benefit by delaying a trial, a defendant has a responsibility to assert his right to a speedy trial. Hester v. State, 268 Ga. App. 94 (2004). According to the court in Ditman, a defendant who fails to assert the right to a speedy trial will have a difficult time establishing a violation of this right. Objecting to the state’s request for a continuance or announcing ready for trial are not asserting the right to a speedy trial. Brannen v. State, 274 Ga. 454 (2001).
Davis first asserted his right to a speedy trial in October 2006 17 months after his arrest. His motion to dismiss requested an immediate trial. A motion to dismiss an indictment on speedy trial grounds that does not request an immediate trial is not a demand for trial and is not considered an assertion of the right under the Barker analysis. State v. Lively, 155 Ga. App. 402 (1980). Because Davis waited until 17 months after his arrest to assert his right, and then another 17 months after the judge denied his first motion to file a second motion, the Court of Appeals weighed this factor against Davis but not heavily. The 29 month delay from the reindictment and Moses’ motion to dismiss weighed against Moses, but not heavily given Moses was ready for trial and the state was not and the case had not been placed on a trial calendar. Likewise, the decision to withdraw the speedy trial demand (without Ditman’s knowledge or consent) was weighed against Ditman, but not heavily given the 16 month delay from the June 6th motion for acquittal and a ruling on the motion. Pickett’s failure to timely assert his right was also weighed against him.
Prejudice to the Defendant. The prejudice factor weighs “most heavily in determining whether a defendant’s constitutional rights have been violated. Simmons v. State, 290 Ga. App. 315 (2008). In evaluating any prejudice to the defendant, the court must consider: (1) oppressive pretrial incarceration; (2) anxiety and concern to the accused; and (3) the possibility of harm to the accused’s defense. The third factor is the most serious “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Harris v. State, 284 Ga. 455 (2008). Georgia courts have found that a delay of five years or more may lead to a finding of actual prejudice relieving the defendant of having to show specific prejudice in his case. Moore v. State, 294 Ga. App. 570 (2008). The Court of Appeals held that the trial judge in Moses did not abuse its discretion in finding either actual prejudice by the 48 month delay or specific prejudice because of the potential affect on the memory and credibility of alibi witnesses, nor was the judge wrong in finding actual prejudice by the 5 year delay in Pickett.
Because Davis was released on bond he could not show prejudice from pretrial incarceration, nor was he able to show any specific or unusual level of anxiety or concern beyond that suffered by any person in a criminal prosecution. However, Davis was able to show harm to his defense. Davis was prevented from introducing statements made by two robbery victims who were illegal immigrants and no longer in the country. These statements would have been favorable to Davis. The Court of Appeals said it did not matter that Davis’ attorney did not attempt to interview the witnesses.
The Court of Appeals agreed with the trial judge that Ditman’s 20 month incarceration did not involve “sub-standard conditions or other oppressive factors beyond those that necessarily attend imprisonment.” The Court of Appeals also held that because anxiety is “always present to some extent” without some “unusual showing,” this factor is not likely to be in a defendant’s favor. According to the Court, Ditman’s anxiety and concern was not “beyond that generally experienced by defendants in his situation.” The Court of Appeals did find merit in Ditman's claim that the delay caused him to be unable to locate an important witness who would help the defense.