An Uncertain Remedy: The Loss of the Speedy Trial Right

A speedy trial seems like a reasonable parameter for a government of the people to provide.  Indeed, it is, universally in this country, a Constitutional guarantee.  But as it turns out, there is a tiered rights system and a speedy trial is - on the one hand - important enough to be a fundamental right - but on the other - not so important that the government must abide the practice. 

The history suggests that as far back as the 12th Century, there was a notion of a speedy trial.  Apparently, people would be charged with an offense but the communication system, being Medieval, was inefficient in rendering the information to the King.  Judges would visit towns in order to mete out justice; each town would be visited once a year or so.  By the 17th Century, a renewed interest in the speedy trial notion suggested that, really it was a means of prohibiting prolonged detentions without a trial.  This is different from, but connected to the notion of habeas corpus which is, in essence, a guarantee that a prisoner held without formal charge have the right to bail or release.

Both of these concepts made their way into constitutional parlance.  But neither has the gravitas of, for example, the right to be free from unreasonable searches and seizures or the right, for that matter, to own a gun.  A recent Massachusetts case ruled, specifically under Art. 11 of part one of the Massachusetts Constitution, that if the Commonwealth charges an individual by a Criminal Complaint and then dismisses the Complaint but later indicts, the initial charging document starts the speedy trial clock (so far, so good)...BUT despite the presumed prejudice of a lengthy delay, the SJC then employed the framework established by the Supreme Court for 6th Amendment jurisprudence to determine that there was no actual prejudice to Mr. Butler caused by the delay.  Commonwealth v. Butler can only be described as an intellectually dishonest opinion that seeks to destroy a valuable portion of the Massachusetts Constitution.

On the one hand, the Supreme Judicial Court noted - in keeping the clock running without resetting it upon the indictment - that the idea of a speedy trial is a societal, not an individual right.  That is, society has the right for its prosecutors to perform efficiently and without undue delay.  Therefore, they are under some pressure to finish what they start when they begin the criminal process.  Contrarily, it is not as much of an individual right because, even though years of time can be attributed to the government in delay, the defendant could not prove that he was actually prejudiced...which has never been a part of the Massachusetts jurisprudence on this issue.

Indeed, earlier decisional law suggests that incarceration on another offense does not reduce the accused’s right to a speedy trial. Commonwealth v.McGrath, 348 Mass. 748 (1965) was decided exclusively under Art. 11 and yet was not even mentioned in Mr. Butler's recent case. In McGrath, the defendant was convicted in federal court and was serving a federal sentence when a Massachusetts County issued indictments against him on unrelated charges.  He petitioned for habeas corpus and the federal government was willing to release him from exclusive custody if they were reimbursed by the county.  The county refused to release the funds and Mr. McGrath moved for a dismissal pursuant to his speedy trial rights.  The Supreme Judicial Court stated,

Were the defendant serving a sentence in a correctional institution in this Commonwealth he would, both under art. 11 and by statute (see G.L. c. 277, § 72A, inserted by St.1963, c. 486), have the right, if he requested it, to a prompt trial on the pending indictments. But a different problem is presented where, as here, the defendant is serving a sentence in a Federal prison. In such a situation the Commonwealth has no right to secure the presence of the defendant before our courts.

Commonwealth v. McGrath, 348 Mass. at  750 (footnote omitted).

Mr. Butler was incarcerated in a Massachusetts prison: everything was in the control of the Commonwealth.  He asserted his speedy trial right to a prompt trial.  But, unlike McGrath, where the Court held: "that the right to a speedy trial contemplates that the Commonwealth will take reasonable action to prevent undue delay in bringing a defendant to trial, even though some expense may be involved... The Commonwealth must, within a reasonable time, either secure the defendant's presence for trial or dismiss the indictments." Id. at 752, Mr. Butler's right to a speedy trial - although presumptively prejudicial in that the delays were the fault of the Commonwealth - were irrelevant to justice and ordered liberty.

Not only did the SJC fail to uphold (or even cite) its own precedent, it took a convoluted path by analyzing under Barker v. Wingo, 407 U.S. 514 (1972) as if the Sixth Amendment right to a speedy trial and the Art. 11 right to a speedy trial is the same right.  The problem is, it's not.  The Sixth Amendment guarantees, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial..." But, Art. 11 avers: 

Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.

The notion of a "speedy and public trial" may be understandably amorphous, thereby requiring the four-part Barker v. Wingo analysis to decide whether an individual had been denied his right to a speedy trial.  In that case, the Court came up with criteria to assess whether the delay between accusation and trial violated the Sixth Amendment; the factors include the length of the delay, the reasons for the delay, the defendant’s assertion of his right to speedy trial and the prejudice to the defendant.  While a "speedy trial" is blurry, Art. 11 could not be any more clear: the government must be responsive to its own laws for the benefit of society and cannot, at the expense of any individual, betray the laws and rules it devised.  It encompasses both a societal right and an individual right to be free from an arbitrary and capricious form of government.  By denying Reginald Butler his asserted right to a speedy trial, the SJC just denied the people of Massachusetts the right to a responsive and efficient prosecutorial arm of government and infringed upon the access to courts so dear to the notion of citizenship, freedom and self-governance.

Not only does the recent Butler decision fly in the face of the language of the Massachusetts Constitution and binding precedent in this Commonwealth, it also runs afoul of Supreme Court decisional law.  In Doggett v. United States, 505 U.S. 647 (1992), the defendant was unable to point to specific facts illustrating that the delay harmed his ability to defend himself adequately. Id.  at 655.  “[W]e generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.  While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay.” Doggett, 505 U.S. at 655-656 (internal citation omitted).  The indictments against Mr. Doggett were dismissed in violation of his speedy trial rights when the government’s negligence caused delay in excess of that which normally would require judicial investigation and the defendant had not acquiesced to the delay.  Sounds a lot like Mr. Butler.

In the case of Reginald Butler, he was incarcerated on unrelated charges in a Massachusetts state prison when a criminal Complaint issued triggering a warrant to be lodged at the correctional institution in which he was housed.   However, the court personnel failed to comply with a law requiring that the warrant enter into the warrant management system (read: government negligence).  Knowing about the warrant and the Complaint, when no action occurred for two years, Mr. Butler signed a form requesting a speedy trial...which while received by the court was never docketed and no action was taken (read: assertion of right combined with government negligence).  Mysteriously, within a year of the speedy trial request, the prison began reporting that there were no outstanding charges against Mr. Butler (read: unclear governmental action - possible negligence, possible detrimental reliance).  He was released several years later.  Less than a year after his release, he was arrested on the initial warrant, but those charges were dismissed by the Commonwealth for failing to prosecute (victim could not be located).

A year later, the government was able to find its key witness and therefore presented evidence before a grand jury and indicted Mr. Butler on the very same charges which were dismissed in the lower court (read: government exuberance following extreme negligence).  Mr. Butler was held in lieu of bail and tried several years later.  Despite arguing to dismiss the indictment for failing to abide his right to a speedy trial, Mr. Butler was convicted after a jury trial.  Putting aside some procedural difficulties, the real issue was whether the speedy trial clause wither of Art. 11 or the 6th Amendment - or both - was violated when more than 10 years of time, all attributable to the government passed before trial.

In a bright note, the SJC affirmed that the speedy trial right clock begins ticking at the first formal accusation, whether by Complaint or Indictment.  The clock will not reset, it simply keeps ticking.  While bright, the note fades quickly because, despite the different language of Art. 11 and the harm to society by the delays, the harm to the defendant by the delays (even when he asserts his right to a speedy trial), despite the holding in Doggett, he will still have to prove actual prejudice under the Barker criteria.  This is non-sensical and intellectually dishonest. 

Mr. Butler's situation is more Doggett than Doggett's.  In Doggett, the defendant was unaware of the outstanding indictment and failed to assert any rights related to it; he was not incarcerated but living openly under his own name for years before the government "discovered" him and arrested him on the old warrant.  Mr. Butler is, in many ways, more sympathetic because the government had no excuse but to find him since they housed, clothed and fed him, provided him with the paperwork to assert his rights, which he did, and then ignored his very existence until such time as was convenient to prosecute...that is shortly after he was released from custody. 

It is insulting to affirm a right by denying that very same right.  It is impossible to prove a negative; thus the only way Mr. Butler could prove actual prejudice would be if the prejudice favored his position in the form of insufficient evidence to convict thereby eliminating the appeal due to a speedy trial right violation.  Under the wording of the Massachusetts Constitution, Pt. 1, Art. 11, the government shall not infringe upon any individual's right to obtain free and fair justice.  It has nothing to do specifically with a criminal trial and therefore this decision linking it to an analysis under the Sixth Amendment which is identifiably directed to the accused in criminal cases sets a dangerous and untenable precedent.  

The frame of the case is this: due to negligence and actions by the government upon which Mr. Butler reasonably relied to his detriment, he was denied his ability to obtain his rights and his free access to justice conformably to the laws.  Forget whether or not he was incarcerated.  Forget what the charges were.  Forget whether this was a criminal trial at all.  Art. 11 was rendered virtually meaningless in its own language by this decision that never once cites its words.  Query whether, in this anniversary year of Gideon v. Wainwright, if he had the ability to purchase his freedom by hiring an attorney to assert his rights throughout the decade in which the government failed to act, Art. 11 might have provided better protection.  And if so, the danger in that analysis for all of us.