The Court of Appeals of Georgia recently reversed the denials of motions to dismiss based on speedy trial grounds in two different cases. The court found that the 35 and 36 month delays were both presumptively prejudicial and violated a defendant’s right to a speedy trial under the four-part balancing test.
In Davis v. State, the defendant, Davis, was arrested for kidnapping with bodily injury, burglary, armed robbery and aggravated assault in March of 2005. 17 months later he filed a motion for immediate trial or dismissal which the trial court denied. However, Davis was able to post bond at the time. Davis then filed a second motion in April 2008, which was denied, 35 months after the arrest.
In Ditman v. State, the defendant, Ditman, was arrested for child molestation on October 11, 2005 for molesting the three year old son of his girlfriend. On May 22, 2006, Ditman demanded a speedy trial. However, in July of that year, Ditman’s counsel asked for a continuance, since the state had failed to comply with discovery demands and he failed to locate the mother of the victim. Prosecutors then told defense counsel that if he dropped the speedy demand the discovery would be made available. Counsel did so to which Ditman wrote several letters in protest. Ditman’s counsel then withdrew from the case and he received a new attorney in May of 2007. In June of that year, nearly 36 months after arrest, Ditman’s counsel filed a motion for discharge and acquittal on speedy grounds which the trial court denied in October of 2008.
Under the law, the right to a speedy trial is violated if 1.) the length of delay is presumptively prejudicial and 2.) the Barker four-part balancing test weighs in favor of the defendant. The clock begins to tick, for purposes of the length of a delay, at the time of the arrest or when formal charges are brought. The law is also clear that any delay approaching a year raises a threshold presumption of prejudice. If a court finds this presumption, it will then engage in a four-part balancing test. This includes 1.) the length of delay; 2.) the reasons for delay; 3.) defendant’s assertion to the right to a speedy trial; and 4.) the prejudice to the defendant. No one factor is necessary or sufficient to give rise to a violation.
In Davis, the court found that 33 months of the 35 month delay was attributed to the state, and that the delay was attributed to a lack of diligence. While a deliberate delay weighs more heavily against the state, a lack of diligence also weighs against it. The court then noted that there were two long periods in which Davis failed to assert his right to a speedy trial which weighed against him. However, Davis was able to show prejudice, since two of the robbery victims had made exculpatory statements. The two were illegal aliens who could not pick Davis out of a photographic line up. In balancing these factors, the court found that the trial judge erred in not finding sufficient prejudice to support a speedy trial claim.
Similarly in Ditman, the court found the 36 month delay to be presumptively prejudicial. In its analysis under Barker, the court found that the state was slow to comply with discovery requests which caused the continuance, and that 23 of the 36 month delay was directly on the hands of the state. However, while Ditman did assert his right by filing a motion, he also withdrew that motion. Yet, the court also noted that 16 months elapsed between his motion for discharge and the trial court’s denial which meant his initial withdrawal could not be weighed heavily against him. The court further found that Ditman was prejudiced, since he could not find the victim’s mother who stated that her son had never mentioned any abusive acts and that she never saw any physical signs. The court ruled that these factors weighed in favor of Ditman, and that the trial court should have granted the motion for discharge and acquittal.
Our criminal defense lawyers have successfully won several speedy trial challenges. In our experience, it is not uncommon for prosecutors to drag out prosecutions in order to gain some advantage at trial or to simply keep a defendant in custody for a longer period of time. As in these cases, a long delay can severely impact a defendant’s case due to a greater chance of having to deal with missing witnesses or lost evidence. However, in some cases, it may be advantageous for a defendant to delay a trial especially if the defendant is out on bond or if the district attorney may lose interest in the case. An experienced criminal defense attorney will know when it is advantageous to bring a speedy trial claim and when it is simply better to allow a case to sit.
Page Pate is an accomplished trial lawyer with over 25 years of experience in criminal defense, civil litigation, and whistleblower representation. Page is listed in The Best Lawyers in America, Top 100 Lawyers by The National Trial Lawyers, and named to the list of Super Lawyers for the past 15 consecutive years. Page is a frequent expert legal analyst for local and national media and has served as an Adjunct Professor at the University of Georgia Law School. Read Page’s reviews on AVVO. Follow Page on Twitter @pagepate and on Linkedin.