photo by: Noah Taborda/Kansas Reflector

Kendall Seal, director of advocacy for the American Civil Liberties Union of Kansas, speaks Friday, Feb. 5, 2021, calling a proposed measure delaying the state's speedy trial requirement an affront to the state and U.S. constitutions.

TOPEKA — Opponents of a proposal to delay or eliminate Kansans’ right to a speedy trial say if passed, the measure would be an affront to the constitution and open the door for litigation and unnecessary expenses for the state.

Amid the pandemic, jury trials have all but ceased across the county. Under the state’s current COVID-19 emergency declaration, which expires at the end of March, Kansas Supreme Court Chief Justice Marla Luckert has the authority to pause trial deadlines.

Whenever criminal proceedings resume as normal, there are concerns from both opponents and proponents about how to address a backlog of cases.

The proposed bill calls for a three-year delay on enforcing Kansas law requiring that a defendant be brought to trial within 150 days, or 180 days if the defendant is not under supervision. If they are not tried, those cases could be dismissed.

On the flip side, opposition to the proposal said if the speedy trial provision is waived, defendants who cannot afford bail will be subjected to prolonged incarceration without conviction. Without the provision, there would be no incentive for the court to act expeditiously, opponents argued.

“Suspending these constitutional rights will only exacerbate the systemic inequalities and racism within the criminal legal system,” said Kendall Seal, director of advocacy for the American Civil Liberties Union of Kansas. “Some people will languish in jail because they are too poor to pay bail. People will lose their jobs, and family budgets will be decimated.”

The proposal, heard Thursday and Friday before the Senate Judiciary Committee, would pause the speedy trial requirement until May 1, 2024. Another section of the bill proposes elimination of the provision altogether, although supporters of the bill have not been as emphatic about that element.

The ACLU opposes both options, Seal said. He acknowledged the criminal justice system is facing a serious backlog but said this would only open the state to further litigation and unexpected costs.

“This bill will likely result in significant costs to residents and the state. The costs associated with electronic monitoring and supervision will explode,” Seal said.

Teresa Woody, litigation director for Kansas Appleseed Center for Law and Justice, said repealing the statutory guidance on speedy trial altogether would create uncertainty for both defendants and prosecutors. Without the timeframe for a speedy trial, defendants may point to federal law to argue for a presumption of fewer than 150 days for a trial, she said.

“Rather than eliminating the backlog that exists because of the pandemic, the repeal of the statute risks extending that backlog by opening up additional challenges based on the right to a speedy trial,” Woody said.

Woody added that because the Kansas Constitution includes the right to a speedy trial, there is also a significant risk that convictions will be overturned as a result of this bill.

“If a defendant establishes a violation of the right to a speedy trial, the court must overturn the conviction, vacate any sentence and dismiss all charges,” she said.

Alternate options

Jessica Glendening, of the Kansas Association of Criminal Defense Lawyers, said she has never had a case in 15 years as a public defense lawyer where the speedy trial provision has proved problematic.

In fact, Glendening said, she could not name a case from any attorney she practices with or knows through the state criminal defense association who has had a case dismissed because of the 150-day requirement.

“We are being presented here with a false dichotomy that either we pass this bill as presented or people who are accused of terrible crimes will go free,” Glendening said in testimony before the Senate Judiciary Committee. “I’m not asking you to do nothing. I am here asking you to pass a bill that will fix this particular problem and not create new ones.”

One alternative she provided was amending legislation providing the authority to delay these trial proceedings amid an emergency so it is not triggered by the declaration but by “other ongoing legislative or executive oversight.”

She also suggested giving more local control to district courts by temporarily amending an existing statute allowing for the extension of the speedy trial deadline by 30 days.

“Adding that language would allow district courts to make the determination to extend the speedy trial deadline based upon the necessity of doing so in their specific jurisdictions,” Glendening said. “Moreover, it would help protect the constitutional right to a speedy trial because it would require a judicial finding that the extension of the trial date was reasonably necessary due to the COVID-19 health emergency.”

Given time, Glendening said, stakeholders could come together to propose legislation more adequately addressing the issue and protecting the rights of all involved.

Sen. Kellie Warren, a Leawood Republican and chairwoman of the Senate Judiciary Committee, said the wheels of that collaborative process are already in motion.

“I had the opportunity to talk with the proponents of the bill … to come up with a solution that works to protect the rights of those who are accused and ensure that we finally get to trial and we can preserve the justice system,” Warren said.

— Noah Taborda is a reporter for Kansas Reflector.