Demanding a speedy trial: re-evaluating the assertion factor in the Barker v. Wingo test.

• Author: Osnowitz, Seth

CONTENTS INTRODUCTION I. BACKGROUND AND POLICY OF SIXTH AMENDMENT RIGHT TO SPEEDY TRIAL A. History of Speedy Trial Jurisprudence B. Policy Considerations and the "Demand-Waiver Rule", II. THE BARKER TEST AND DEFENDANTS' ASSERTION OF THE RIGHT TO A SPEEDY TRIAL A. Rejection of the "Demand-Waiver Rule" B. Overview of the Barker Test C. The Defendant's Assertion of His or Her Right to a Speedy Trial D. Weighing the Assertion Factor III. PROBLEMS CREATED BY THE ASSERTION FACTOR A. Unfair Burden on Criminal Defendants B. Courts Applying the "Demand-Waiver" Rule C. Distortion of the Right to a Speedy Trial IV. IMPROVING THE TEST A. Improving the Criminal Justice System B. Eliminating the "Demand--Waiver Rule " and Increasing Consistency in Opinions C. Restoring the Constitutional Right CONCLUSION INTRODUCTION

In 1977, Jerry Hartfield, a black man with an IQ of fifty-one, was charged with raping and murdering a white woman. (1) A jury quickly sentenced Hartfield to death, but he appealed. (2) Three years later, the Texas Court of Criminal Appeals unanimously reversed Hartfield's conviction because the jury was tainted. (3) While Hartfield awaited trial, the governor of Texas--with encouragement by prison officials--commuted Hartfield's sentence from the death penalty to life in prison. (4) At that point, Hartfield's state-appointed attorney ceased representing Hartfield. (5) Although Hartfield was entitled to a new trial, he proceeded to spend twenty-three years in prison until a fellow inmate noticed the mistake. (6)

The inmate told Hartfield that he should have received a new trial when his case was reversed. (7) Hartfield then began filing pro se petitions for a writ of habeas corpus in district court. (8) In response, the court appointed a public defender to help with the case. (9) Hartfield--with aid from his attorney--then began petitioning for a writ of habeas corpus in state court and was eventually denied by the Texas Court of Appeals in 2014. (10) Hartfield argued that the thirty-four year pretrial delay caused by governmental negligence violated his constitutional right to a speedy trial. (11) The trial court concluded that the delay was extraordinary, that it was caused by governmental negligence, and that the thirty years of pretrial incarceration prejudiced the defendant, but it refused to find that a speedy trial violation had occurred because Hartfield's twenty-three years of acquiescence weighed heavily against him. (12) Again, Hartfield appealed. (13)

On appeal, the state argued, "While the Barker balancing test contains few if any absolutes, Appellant's twenty-three year delay in invoking his right to a new and speedy trial comes close to absolutely barring a finding that the right to speedy trial was violated during the relevant period." (14) The court acknowledged that Hartfield's case may have been the longest gap in any speedy trial case (15) but refused to reach the issue because of procedural technicalities. (16) On remand, Hartfield was reconvicted of crimes he allegedly committed over three decades prior. (17) Hartfield's case demonstrates a major flaw with speedy trial jurisprudence. (18) It is unjust to deny an ignorant and unrepresented defendant his constitutional right just because he was unaware of his duty to demand it from the court.

This Note argues that courts' misapplication of the "assertion factor" in the Barker speedy trial test has created problems in speedy trial jurisprudence. (19) Courts' reliance on the "assertion factor" has fostered an unfair bias against dismissal of speedy trial cases in lower courts, allowed the courts to apply doctrine discredited by the U.S. Supreme Court, and distorted the intention of the constitutional right to a speedy trial. This Note proposes that courts can solve these problems by eliminating the assertion factor from speedy trial analysis. Instead, courts should apply a three-part test composed of the remaining Barker factors.

This Note begins in Part I with a discussion of the historic background and policy considerations of the constitutional speedy trial right. Part II explains the Barker test and the assertion factor's role. Part III addresses problems created by the Barker test's assertion factor. Part IV discusses some potential ways of reinterpreting the Barker test in order to mitigate the problems addressed in Part III.

1. BACKGROUND AND POLICY OF SIXTH AMENDMENT RIGHT TO SPEEDY TRIAL

   The right to a speedy trial has a long history and deep-rooted policy concerns for protecting the accused from unwanted harms caused by pre-trial incarceration. (20) Courts have tried to balance those harms with concerns for the difficulties prosecutors face in bringing defendants to trial. (21) Balancing these concerns caused courts to form policies that make it extremely difficult for defendants to find relief for speedy trial violations.

   1. History of Speedy Trial Jurisprudence

      On its face, the Sixth Amendment sets simple guidelines for protecting the criminally accused: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." (22) Despite centuries of speedy trial jurisprudence, however, courts have provided little guidance for determining what constitutes a "speedy trial" and when a defendant's constitutional right is violated. (23) One reason for the lack of clarity is the trifling legislative history of the right. (24) Scholars claim that history provides little explanation of why the framers decided to include the language in the Bill of Rights or of the framers' intended application. (25) Consequently, historic English trial rights have been used to interpret the language in the Sixth Amendment. (26) Considering the importance of history, the U.S. Supreme Court held, "the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage." (27)

      The constitutional framers' most direct legislative influence on rights of the accused was the Habeas Corpus Act of 1679.28 Yet, the timing concerns of the Habeas Corpus Act of 1679 focused on curing the problem of unlawfully detained prisoners, so it is unclear whether the act provided the foundation for the broader language of the Sixth Amendment. (29) Scholars theorize that the inspiration for the framers to include the right to a speedy trial in the Bill of Rights may have come from the work of Sir Edward Coke. (30) Coke's influential seventeenth-century treatise "endorsed] the principle that a right to speedy disposition was a significant component of justice." (31) However, Coke was one of the only voices emphasizing the need for speedy trials at the time, making it unclear how much English parliament thought about these concerns when it enacted the Habeas Corpus Act of 1679. (32) Therefore, the full extent of Coke's ideas over the language of the Sixth Amendment remains unclear. (33)

      One clue about the policy interests behind the speedy trial language of the Sixth Amendment is a record of the majority of state delegates rejecting a proposed amendment to the language by Representative Burke of South Carolina. (34) Burke proposed language that would allow a defendant to delay trial if needed to help his case, (35) but the vast majority of delegates rejected Representative Burke's proposal on the theory that the established processes of the justice system would be sufficient to ensure defendants' ability to make their cases. (36) Therefore, the founders may have intended the speedy trial clause to be minimally intrusive.

      Despite the ambiguous origins of the right to a speedy trial, the United States Supreme Court has managed to establish some guidelines for Sixth Amendment speedy trial jurisprudence. In Klopfer v. North Carolina, (37) the petitioner was indicted for criminal trespass, but never convicted because of a mistrial. (38) After his trial was postponed, Klopfer petitioned the court to ascertain when his case would be heard. (39) At that point, the state prosecutor asked for a "nolle prosequi with leave," a local rule that allowed a defendant to go free but obligated him to return to trial at an undetermined future date. (40) The Supreme Court found North Carolina's nolle prosequi rule "clearly denie[d] the petitioner the right to a speedy trial," which the Court declared was fundamental. (41) Therefore, the Court held that the Sixth Amendment right to a speedy trial applies to the states through the Fourteenth Amendment. (42)

      One of the earliest cases to address how to apply the right to a speedy trial was Beavers v. Haubert. (43) In Beavers, the defendant faced two separate indictments under federal attempted bribery statutes, but did not comply with a removal warrant requiring him to appear in a different district than the one in which the case originated. (44) On appeal, the U.S. Supreme Court considered how speedy trial rights should be applied to a defendant facing multiple charges. (45) Instead of making a hard ruling of when and how the right to a speedy trial attaches, the Beavers court considered the circumstances surrounding the defendant and made a ruling based on balancing the defendant's needs and the practical concerns of local courts in managing the proceedings. (46) The Court held, "The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice." (47) Beavers demonstrates why courts have had difficulty setting firm guidelines on when and how to apply the right to a speedy trial. Since the right of a speedy trial is necessarily relative, courts examine the circumstances surrounding each individual case in order to determine whether a lengthy pre-trial delay was reasonable.

      Despite the ad hoc considerations prescribed in Beavers, the U.S. Supreme Court has managed to set some parameters...