photo by: Noah Taborda/Kansas Reflector

Sedgwick County District Attorney Marc Bennett said without the proposed three-year freeze on the defendant's statutory right to a speedy trial, prosecutors across Kansas would be forced to let some criminals walk free. Bennett testified Thursday, Feb. 4, 2021, at the Statehouse in Topeka.

TOPEKA — Kansas district attorneys concerned about case backup caused by the pandemic pleaded Thursday for legislators to consider passing a measure delaying assurances of a speedy trial by several years.

Current law dictates a case in Kansas must be brought to trial within 150 days, or 180 days if the defendant is not under supervision. If those cases are not tried within the limit, they could be dismissed. On the other hand, if the speedy trial provision is waived, defendants who can’t afford bail could be subjected to prolonged incarceration without conviction.

Kansas is one of more than a dozen states with the defendant’s right to a speedy trial in state law. The proposed bill would not impact the federal constitutional right to a speedy trial.

Amid COVID-19, jury trials have crawled to a near standstill. As these cases resume, there are concerns the current law will force prosecutors to make no-win situations.

“Until litigants and jurors are back into the courtrooms at pre-COVID levels, working down the backlog while attending to the new business coming in the door is going to take significant time,” Sedgwick County District Attorney Marc Bennett said. “Without further legislative action, the courts of this state will have to try these cases or face dismissal of hundreds if not thousands of cases with prejudice.”

The measure before the Senate Judiciary Committee would pause the speedy trial requirement until May 1, 2024. Opponents of the bill will testify before the committee Friday.

Legislation passed last year provided Kansas Supreme Court Chief Justice Marla Luckert the authority to pause these trial deadlines if the state remains under a declaration of emergency. That declaration is set to expire at the end of March under a law signed by Gov. Laura Kelly in January, although the Legislature is expected to extend the emergency before then. If it were to expire, the clock on criminal cases would start, Bennett said.

“Many counties have a single judge to handle all their cases, while also attending to the other business of the court, from traffic dockets to divorce proceedings to civil matters, further limiting the number of days each week the judge can handle criminal cases,” Bennett said. “Not every defense attorney handles murder cases or child sex cases. How many such trials can an attorney be expected to handle in one year?”

Bennett said there are thousands of cases currently awaiting trial in Kansas. There are 648 cases awaiting trial in Sedgwick County, 647 such cases in Shawnee County and approximately 400 to 500 in Johnson County. Those numbers do not include thousands more that have been filed but not yet arraigned.

Even smaller counties are facing caseload logjams, like in Franklin County, where 35 cases are awaiting trial.

Franklin County District Attorney Brandon Jones said the statute did not allow the flexibility necessary to account for unexpected circumstances like the pandemic. He said his county, for one, would not be able to manage without a delay.

“With only one judge, four prosecutors, a very limited number of qualified criminal defense attorneys and a total population of around 25,000 people from which to draw prospective jurors, there is simply no way that even half of these cases will be able to be tried in the 150 or 180 days mandated,” Jones said.

Opponents of the bill say the freeze would come with significant costs for electronic monitoring and supervision. Those in disagreement with the freeze were scheduled to testify Thursday but were delayed until Friday in the interest of equal time for both sides.

photo by: Noah Taborda/Kansas Reflector

Sen. David Haley expresses concern with the length of the freeze on the right to a speedy trial because of the pandemic backlog, during a hearing Thursday, Feb. 4, 2021, at the Statehouse in Topeka.

Another concern expressed was that the bill would result in innocent people being stuck in jail for long periods of time. Sen. David Haley, D-Kansas City, Kan., asked proponents if there were other options they had considered.

“The longer those who are languishing, waiting for their trial, who cannot meet their bail — that’s a big issue,” Haley said. “We’ve got to do something different.”

Bennett said he would be open to a two-year freeze on the statute, although that might not be enough and could require a subsequent bill for an extra year’s delay down the line.

Other options legislators could consider include making significant changes to the speedy trial law or doing away with the statute. Bennett said the law provided an arbitrary and burdensome deadline.

– Noah Taborda is a reporter for Kansas Reflector.