Speedy trial rights are on hold in Kansas. What does that mean for defendants?
photo by: Mackenzie Clark/Journal-World File Photo
As Rontarus Washington Jr. left the courtroom on Oct. 4, 2019, following a hung jury in his murder trial, he told his mother, “Wipe them tears; they can’t keep me forever.”
That was before the coronavirus disease became a global pandemic and the Kansas Supreme Court suspended speedy trial laws “until further order.”
As of March 16, Washington had been in custody of the Douglas County Jail for five years, not counting the roughly two months before he was extradited from Mississippi to Kansas. At age 23, that’s about 26.2% of his life. But who’s counting?
Not the courts — not for now.
The ramifications of COVID-19 are far-reaching, and the inability of the courts to hold jury trials for an undetermined period of time will have a “domino effect” throughout the judicial system, said Suzanne Valdez, a clinical professor for the University of Kansas School of Law.
“We’re going to have a backlog of all the cases that are currently set for trial that are going to have to take precedence over anything else, and the criminal justice system is already overburdened,” she said.
Less than two weeks ago, cases in Douglas County District Court were being set for trials, and other hearings delayed because some trials were already scheduled. But as state and local officials have gradually restricted further how many people can be in one place at one time in efforts to slow the spread of COVID-19, the courts can’t function normally.
Gov. Laura Kelly on Thursday signed into law a bill that expands the authority of the chief justice of the state Supreme Court to issue orders “to extend or suspend any deadlines or time limitations established by statute when the chief justice determines such action is necessary to secure the health and safety of court users, staff and judicial officers.”
An order signed by Kansas Supreme Court Chief Justice Marla Luckert on Wednesday defined certain types of emergency operations that the courts must fulfill. It also delayed all jury trials, criminal and civil, and it suspended “all deadlines and time limitations to bring a defendant to trial” until further order, also noting that “no action shall be dismissed for lack of prosecution.”
The Sixth Amendment to the United States Constitution, in part, provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The states generally have codified their own laws concerning speedy trial, Valdez said. Under Kansas law, defendants who are being held in custody must be brought to trial within 150 days of being bound over for trial; for those not in custody, it’s 180 days.
Valdez said she thinks this suspension of speedy trial rights is unprecedented. Even in cases of natural disasters, she said, there’s usually a backup plan.
photo by: KU School of Law/Contributed Photo
“When you get a whole community wiped out for a tornado, or whatever, then you just move the court system to another neighboring county, and you can function,” she said. “You’re down for a few days, but nothing that’s going to be indefinite, certainly, and it’s not a situation where the whole system is shut down.”
But with public health officials urging people to stay isolated at home if they can, jurors won’t want to show up to do their civic duty — and staying home is “the right thing to do in light of what we’re facing,” Valdez said — but even if they did, there would be nowhere to put them. As the warnings grew in this area, Valdez said she started to wonder what the courts could do.
In jury selection, Valdez said, you’ll have dozens of people crammed into a room along with the judges, defendant and counsel, for hours — or, as in some higher-profile Douglas County cases, days. She said it’s impossible to accommodate 6-foot social distancing between enough people to select a jury of 12 plus alternates.
But in recent days, the state and local government have limited social gatherings to no more than 10 people.
State v. Washington and other long-pending local cases
For the defendants themselves, the suspension of speedy trial laws leaves a lot up in the air.
Every case is different, and the various delays in Washington’s case certainly have not all been at the state’s behest. His defense attorneys, Adam Hall and Angela Keck, have requested many, if not most, of the continuances in the case, and Chief Assistant District Attorney CJ Rieg has expressed frustration with the delays several times in court.
Washington’s monthlong retrial was previously scheduled to start Feb. 24 and wrap up on March 20, but it was delayed once again when Hall and Keck requested additional testing of DNA evidence that they have argued the state should have done as part of the initial investigation.
The charges against Washington — first-degree murder and aggravated burglary — are serious, but he’s being held in minimum-security custody. He’s also spent a portion of his time in custody housed at other counties’ jails to help relieve overcrowding in Douglas County’s, and jail staff has previously told the Journal-World that other jails will generally only accept the best-behaved inmates. But he’s being held on $750,000 cash or surety bond.
As of Friday, court records showed that Washington’s retrial is still set to begin Aug. 17; however, with the pandemic situation a massive unknown hanging over everything right now, it’s unclear whether that will happen as planned.
“I just can’t believe that this has gone on, in terms of our ethics obligation to bring him to trial,” Valdez said of that case. She’s had no personal involvement in it. “I just think he has just been unjustly treated, and I’m a prosecutor.”
“… You think about people who are sitting in jail, that’s why you have the speedy trial requirements, right?” Valdez said. “The state either has evidence to prosecute you or they don’t, and so we have to let you go. That’s the purpose of the speedy trial provision.”
Another long-pending case, State v. Michael A. Hormell, was set to go to trial starting Monday, March 23. It would be at least the third time a jury pool has been called for the case, but Hormell’s first trial ended in a mistrial, and the second was called off the morning it was set to begin because his defense attorney, Shaye Downing, had filed a writ of habeas corpus with the Kansas Court of Appeals.
photo by: Douglas County Sheriff’s Office
Hormell, 20, had been in custody for more than two years, and Downing had previously filed multiple motions to dismiss the case because of speedy trial issues. Hormell was released on $100,000 surety bond in February, but when he’ll go to trial is still unclear.
Cheryl Wright Kunard, assistant to Douglas County District Attorney Charles Branson, told the Journal-World via email last week that the trial had been postponed “until further order of the Court.” The delay won’t count against the defendant or against the state, as far as the speedy trial clock goes.
“As everything is in near constant update,” she wrote — a recurring theme during this pandemic — “I have no other details.”
Steven A. Drake III, 23, has been in custody since Sept. 19, 2017, after allegedly shooting a 26-year-old man at close range. He’s also charged with vehicular manslaughter in the death of a 24-year-old woman back in 2016. Neither case has gone to trial, and Drake rejected a plea offer that would have settled three cases, the Journal-World reported.
photo by: Douglas County Sheriff’s Office
At a December hearing, a judge gave Drake a “hard deadline” to go to trial this spring. Court records indicate that a new defense attorney entered an appearance in Drake’s case on Wednesday and requested that his jury trial be continued — although it most likely would not have gone as scheduled, anyway.
Drake is being held on $750,000 cash or surety bond, jail records show.
The new Kansas law states that the chief justice’s orders suspending speedy trial laws can remain in place for up to 150 days after a state of disaster emergency is terminated. It also states that the law’s provisions allowing such orders will expire March 31, 2021. But that could still mean a long time for defendants to remain in custody without seeing trial, even if they’ve already been there for years.
Valdez pointed out that once the courts do resume operating, all of the criminal cases are going to take precedence over any civil matters that come before the courts. That includes the evictions that Gov. Kelly has suspended, foreclosures and so on in addition to other types of lawsuits.
“As a general matter, criminal matters take precedence over civil litigation, so you can only imagine if this is going to be an indefinite sort of situation,” Valdez said. “… This is just going to be a domino effect because these cases that are put on hold are going to take precedence, and then it’s just going to bump everything else. So depending on how long this goes, the more interesting it’s going to get.”
Downing, Hall and Keck did not immediately respond to requests for comment last week.
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