21 September 2005

Winning the Speedy Trial Argument

Sometimes even defense attorneys have a good day.

This case has been going on forever. In fact, my client is one of the first ten charged with felonies moved to the circuit court at the beginning of 2005. The case was then continued once by the prosecutor. When we came back on the trial date both I and the co-defendant's attorney raised speedy trial right (over 5 months between preliminary hearing and trial by Va. Code sec. 243). The prosecutor argued that we couldn't argue this because we hadn't filed a motion 7 days prior to trial. The judge agrees. My client is found guilty of attempted robbery and use of a firearm in a felony. The co-defendant is found not guilty because complaining witness cannot ID him.

Fast forward to the sentencing hearing. The judge gives my client 6 years. I plan to appeal and stand to ask for an appeal bond. I tell the judge I have a good faith belief that the speedy trial ruling will be overturned because the law had just changed to what the judge had declared it to be and it was not that way when he ruled. The judge starts talking about reopening the argument. The senior prosecutor who had been pushing this case is not in the courtroom so the prosecutor who was assigned to that courtroom that day was basically sitting there trying to figure out what the heck the judge and I were talking about. Eventually, the judge converts my motion for an appeal bond into a motion to rehear the speedy trial argument and orders me to brief it.

Fast forward to the next hearing. I have given this brief to the new prosecutor (who somehow got stuck with this case now that it looks like it's going down the tubes). The prosecutor asks the judge for time to file an answer and to order transcripts of the continuance so that if the judge was wrong about the need to file a motion pretrial they can check to see if I objected to the continuance (necessary to preserve speedy trial rights). The judge continues the case saying something to the effect that he's not going to rule right now but it looks like I may have the prosecutor on the law. Then we all go around in circles talking about who is going to order and pay for the transcripts. When we leave both I and the prosecutor believe that the judge is going to order the transcripts.

Fast forward to the next hearing. The prosecutor has filed an answering brief which argues that the prosecution begins with the swearing in of the first witness and that exceeding the speedy trial requirement is a defect in the institution of the prosecution which must be raised prior to trial. It's a good try but the judge agrees with me that "institution of the prosecution" means a flaw in the indictment, presentment, or grand jury and finds in my client's favor. However, all that means is that I now have the right to argue the motion to dismiss for failure to abide by the speedy trial statute. It's clear that the trial took place after 5 months had passed but I had to object at the continuance in order to preserve the speedy trial rights for my client. I can't prove I did because the transcripts were never ordered. The clerk had thought the prosecutor was going to order them. I argue that the case should end right now (I think the words I actually used were, "This dog needs to be put down") but the judge continues it for a week to get the transcripts. This time the prosecutor is tasked with ordering the transcripts.

One day ago: The transcript of the continuance comes in. I've been concerned about this because my file indicates the continuance was a prosecution continuance and I didn't note specifically that I objected. Objectively, I know that I always object to a prosecution continuance because a defense attorney must always object to a prosecution continuance to preserve his client's speedy trial rights. However, I cannot remember having done so (a generic ten minute hearing 6 months ago - figure the odds of remembering) and it's worrying me. I pick up my copy of the transcript. Reading through it, I get to the point where the prosecutor moved for a continuance because an officer-witness cannot be located. Then I read these golden words:
THE COURT: Mr. Lammers?

MR. LAMMERS: Your Honor, obviously, for speedy trial issues, I have to object. I'm not going to jump up and down on the table, but I'd ask that my objection be noted.
. . . .
THE COURT: All right. I not the objections of each of the defendants, but I will grant the motion.
I almost whoop for joy right there in the clerk's office.

Today 8:45: We're back in court and the prosecutor, showing some class, concedes that I objected and that the trial date set outside the 5 months was not at my behest. The judge meticulously sets out what has happened in this case for the record, dismisses the charges per the speedy trial statute, and orders my client back to the jail to be released today. Mom and girlfriend are in the audience and break down crying. I walk back to the lockup area with my client who is absolutely glowing. Handshakes and a quick hug. Then I go to the hall outside the courtroom where Mom and Girlfriend are so happy they are bouncing. Handshake from Girlfriend; Mom hugs me in tears.

Then it's over and I have to run off to do things in other courts. However, for the rest of the day I am bulletproof. Everything goes my clients' way and it's just an all around great day. It'll probably even out tomorrow but today was just great.

BTW: For those who will want to say how terrible this "technicality" result is, let me make 3 points. First, this was a hard fought case. Personally, I believe the story my client has stuck with throughout the trial. He's a nice kid but not bright enough to lie convincingly (and more importantly, consistently). IMO, Client should have only been convicted of brandishing, a class 1 misdemeanor. It was a serious enough brandishing that he probably should have gotten the max (12 month sentence - 6 months actual jail time). Instead, he spent a year and a month in jail.

Second, when the prosecutor and the judge were insisting on seeing the transcript of the continuance motion they were looking for a technicality in order to not apply the statute. The 5 months had clearly passed; they were looking to see if there was any way they could get around the statute.

Third, I'm in such a good mood today your comments just won't penetrate.


Patrick McKenzie said...

For those of us whose education consists of Law and Order re-runs could you describe what exactly the difference between attempted robbery and brandishing is, perhaps in the context of a hypothetical if you can't ethically do it for this case? My untutored assumption would be going into a liquor store and pulling out the gun would be brandishing and the demand for money makes it attempted robbery, but thats just wild guessing.

Tom McKenna said...

Patrick: Brandishing means pointing or displaying a weapon in a manner that induces reasonable fear in another. Attempted robbery means an attempt by force, threat, or intimidation to take property of another. So your hypo is about right: waving or displaying the gun is brandishing, but there is no robbery attempt until some demand (whether implicit or explicit) is made for money or goods.

Anonymous said...

Second, when the prosecutor and the judge were insisting on seeing the transcript of the continuance motion they were looking for a technicality in order to not apply the statute. The 5 months had clearly passed; they were looking to see if there was any way they could get around the statute.

That was my first thought...

If people don't get off on 'technicalities' like the right to a speedy trial, then, by definition, noone will have the right to a speedy trial.