Learning from Katrina: emphasizing the right to a speedy trial to protect constitutional guarantees in disasters.

AuthorEllard, Patrick

Hurricane Katrina battered the Gulf Coast on August 29, 2005 and stands as the costliest, and one of the five deadliest, hurricanes in United States history. (1) Most damage resulted from the breach of two levees (2) which flooded about eighty percent of New Orleans at depths up to twenty feet. (3) The flooding devastated the residents and businesses of the city as well as the busy New Orleans criminal justice system by shutting down courthouses, bankrupting the tenuous public defender system, and displacing many lawyers from their practices. Criminal adjudications slowed to a trickle, and thousands of defendants remained incarcerated for several months without access to court dates or counsel, often in prisons far away from their homes and families. The criminal justice system breakdown compromised several constitutional rights for defendants including the Sixth Amendment right to a speedy trial.

The constitutional right to a speedy trial (4) for a criminal defendant is "as fundamental as any of the rights secured by the Sixth Amendment." (5) In Barker v. Wingo, (6) the seminal Supreme Court decision discussing the right to a speedy trial, Justice Powell wrote that the right contemplates that "all accused persons be treated to decent and fair procedures," (7) and protects three main interests: the prevention of oppressive pretrial incarceration, minimization of anxiety and concern of the accused; and the limitation of the possibility that the defense will be impaired. (8) The right to a speedy trial benefits both the individual and society by protecting these interests. (9)

Despite the right to a speedy trial's constitutional status, one commentator argues that the Court has viewed the right as a "'second-class citizen' ... not worthy of equal treatment with other comparable safeguards afforded criminal defendants." (10) The right to a speedy trial received this second-class treatment in post-Katrina New Orleans because it was not adequately protected by the criminal justice system. After the storm, thousands of defendants languished in prison for several months without access to courts or representation. The breakdown in New Orleans should serve as a lesson on the importance of preserving the criminal justice system and constitutional rights in case of a natural disaster or terrorist attack. Society can better protect the criminal justice system by upgrading the right to a speedy trial to "first class status" in planning for emergencies.

The thesis of this Note is that jurisdictions should emphasize protection of the right to a speedy trial when planning for disaster. The lack of such planning resulted in the overall breakdown in the criminal justice system that plagued New Orleans post-Katrina. Part I of this Note will briefly describe the origin of the constitutional right to a speedy trial in American jurisprudence. Part II discusses how the Supreme Court developed the Barker balancing test and how the Court has wrestled with the "amorphous" quality of the right and the interests it protects. Part III describes how Louisiana incorporated the Supreme Court's speedy trial analysis into its own jurisprudence, and outlines the statutory scheme that the state legislature has enacted for speedy trials. Part IV details Katrina's aftermath in New Orleans and how the storm created a logistical breakdown in the city's criminal justice system threatening constitutional rights. Part V demonstrates how an application of the Barker factors to the situation in post-Katrina New Orleans demonstrates a violation of the right to a speedy trial for many accused. Finally Part VI of this Note suggests how society, when planning for disaster, can better maintain criminal justice systems and constitutional rights by focusing on preserving the right to a speedy trial and the interests it protects.


    The right to a speedy trial is rooted at the foundation of English law. (11) The right seemingly originates from the Assize of Clarendon of 1166, in which King Henry II firmly established judicial criminal procedure in England. Criminal procedure included a mandate for speedy trials:

    And let the sheriffs who have arrested [accused] bring them before the justice without any other summons than they shall have from him. And when robbers, murderers, thieves, or their receivers, who have been arrested through the oath or otherwise, are turned over to the sheriffs, they are forthwith to receive them without delay. (12) The Magna Carta issued by King John at Runnymeade in 1215 was another source of the right to a speedy trial in modern jurisprudence. The Magna Carta culminated negotiations between King John and English barons after they revolted against his tyrannical rule, (13) and stands as one of the most important legal documents in modern history. By the late seventeenth century, Englishmen believed the document was their "palladium of liberty" (14) and "basis of fundamental rights." (15) These beliefs spread to early America where English colonists believed they inherited the fundamental liberties of the Magna Carta. (16) The Magna Carta consequently "inspired many of the basic guarantees found in" the United States Constitution. (17) The constitutional right to a speedy trial appears to derive from the following Magna Carta provision: "To no one will we sell, to no one deny or delay the right or justice." (18)

    The Supreme Court finally deemed the right to a speedy trial fundamental in Klopfer v. North Carolina in 1967. (19) In the opinion, Chief Justice Warren noted that the authors of the Constitution relied directly on the Magna Carta, and widely read Sir Edward Coke's Institutes. (20) These influences persuaded the Founding Fathers to include the right to a speedy trial in early colonial bills of rights. (21) For example, in the Virginia Declaration of Rights of 1776, George Mason wrote, "'[I]n all capital or criminal prosecutions a man hath a right ... to a speedy trial.'" (22) Chief Justice Warren consequently concluded that the right to a speedy trial is fundamental because it was included in early state bills of rights and subsequently incorporated into the Sixth Amendment. (23) Today the right is guaranteed by all fifty states through the Due Process clause of the Fourteenth Amendment. (24)


    After Klopfer, the Court quickly affirmed the fundamental nature of the right to a speedy trial in Smith v. Hooey (25) and Dickey v. Florida. (26) However, each case contained a concurring opinion encouraging the Court to clearly define the contours of the right. In Smith, Justice Harlan urged the Court to fashion a remedy for a speedy trial violation. (27) Additionally in Dickey, Justice Brennan described two outstanding issues bearing on the right to a speedy trial: 1) when the right attaches, and 2) how to judge the constitutionality of the delays in situations where the right does attach. (28) In the following years, the Court answered these concerns by relying on the interests the right to a speedy trial protects.

    1. Protected Interests

      The right to a speedy trial protects three interests: freedom from oppressive pretrial incarceration, mitigation of the anxiety and concern accompanying public accusation, and avoidance of impairment to the accused's defense. (29) The right to a speedy trial differs from other Constitutional rights protecting the accused however, because these interests also benefit society at large in addition to defendants. (30) Society can lose the benefit of prisoner rehabilitation when prison conditions become oppressive due to overcrowding because many accused are awaiting trial. In addition, society often loses wages and a productive member of society when an accused is imprisoned or is released and suffers anxiety while charges are pending. Finally, a lengthy pretrial delay can injure the prosecution who may be faced with fading witness memories and loss of evidence, and may have a more difficult time carrying its burden. Courts thus analyze these three interests from the perspective of both the accused and society in a speedy trial case.

      Oppressive pretrial incarceration, including unreasonably lengthy imprisonment and poor prison conditions, damages both the accused and society. For the accused, imprisonment often leads to job loss and disruption of family life. (31) Society is hurt because it must pay for prisoners' confinement, loses prisoners' earning power, and often must support prisoners' families. (32) In addition, lengthy pretrial incarceration can affect prison conditions by contributing to problems such as overcrowding. (33) Lengthy exposure to poor prison conditions is detrimental both to the accused and to society, which is interested in rehabilitating prisoners while they are in custody. (34)

      The speedy trial interest in "minimiz[ing the] anxiety of the accused" is usually at issue when the individual is released pending trial. In these situations a speedy disposition is desirable because a defendant released on bail might be "unable to lead a normal life because of community suspicion and his own anxiety." (35) This anxiety increases as pretrial delays grow longer. (36) The stigma associated with a pending charge can adversely affect the accused's character (37) and cause detrimental effects such as job loss. These effects are especially devastating when the accused is innocent. Additionally, society also benefits when there is a speedy trial for an accused released on bail. If an accused is stigmatized or suffers anxiety because of a long delay, society potentially loses wages and a productive member of society. (38)

      Excessive pretrial delay also affects both the defense and prosecution. The defense can be impaired by factors such as the loss or fading memories of favorable witnesses. In addition, when the accused is imprisoned for a lengthy period prior to trial, it may hinder his ability to assist in his defense by...

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