Archive for July, 2011

Now that is a dissent.

Posted in Uncategorized on July 5, 2011 by tobywelchlaw

“But  today…makes crystal clear this Court’s position on the right to a speedy trial: the life-support plug has been pulled, and the right to a speedy trial exists no more.”

Justice Dickinson wrote a dissenting opinion worthy of being mentioned with Justice Diaz’s concurring opinion on Edmonds.  Virgil Johnson v. State is a Hinds County case where Johnson was convicted of armed robbery and aggravated assault.  The case merits discussion on the Speedy Trial issues that it raised.  The 6th Amendment right to Speedy Trial test is laid out in the Barker v. Wingo a 1972 U.S. Supreme Court opinion.  In it, there are four factors to decide; 1. Length of Delay, 2. Reason for Delay, 3. Assertion of right to speedy trial, 4. Prejudice.   Justice Dickinson’s dissent discusses the four prongs in relation to Johnson’s case.  Anything over 8 months is presumed prejudicial, so that prong is for Johnson.  2. The reason for the delay, as relied upon by the plurality, is the clogged docket, but as pointed out by Justice Dickinson, there was no actual evidence of that and regardless, that must weigh against the State even if evidence was there.  The third prong also was met by Johnson in his multiple demands for a speedy trial.  The demand for speedy trial is generally the prong that most prosecutors hang much of their response on.  Few defendants actually demand speedy trials, but that is generally, as pointed out by a learned trial judge in a speedy trial hearing I had earlier this year, without an indictment and the cause number that comes with it, where does one and to whom does one, demand the speedy trial?

At this point Johnson has 3 prongs firmly in his favor and Justice Dickinson repeatedly cites from case law that says no one factor is dispositive.  That is where the catchall provision comes in.  Prejudice.  As is usually the case, despite the case law saying no one is dispositive, if you can’t show a crucial witness has become unavailable, evidence has been destroyed, or some other catastrophic blow to the defense, you haven’t demonstrated prejudice, so tough.

Here is the dissenting opinion.  I hope Justice Dickinson is wrong and speedy trial hasn’t shuffled off this mortal coil, but if so, it got a great eulogy.