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How Does The COVID-19 Pandemic Affect The Right To Speedy Trial In Michigan?

by | Oct 19, 2020 | COVID-19, Criminal Procedure |


The right to a speedy trial is guaranteed to the accused by both federal and state constitution in Michigan.  US Const, Am VI; Const 1963, art 1, §20.  “The people of this state and persons charged with crime are entitled to and shall have a speedy trial and determination of all prosecutions and it is hereby made the duty of all public officers having duties to perform in any criminal case, to bring such case to a final determination without delay except as may be necessary to secure to the accused a fair and impartial trial.”  MCL 768.1.  The right to a speedy trial is guaranteed to prevent the defendant from suffering a length pretrial detention while he is presumed innocent and prevent both sides from being prejudiced at trial from presenting evidence that can be lost due to the passage of time.  In what time period must a trial occur to satisfy this constitutional guarantee?

In Barker v. Wingo, 407 U.S. 514; 92 S.Ct. 2182; 33 L.Ed.2d. 101 (1972), the U.S. Supreme Court formulated a four-factor test to be considered in determining whether the defendant’s right to a speedy trial has been violated:

  • (1) The length of the delay. “The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.”  Barker, 407 U.S. at 530-531.
  • (2) The reason for the delay. “A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.  A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government, rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.”  Barker, 407 U.S. at 531.
  • (3) The defendant’s assertion of his or her right. “Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.”  Barker, 407 U.S. at 531-532.
  • (4) The prejudice to the defendant. “Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.  Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past.”  Barker, 407 U.S. at 532.

The Michigan Supreme Court adopted the Barker rule in People v Collins, 388 Mich 680; 202 NW2d 769 (1972).  For a delay of 18 months or more, prejudice to the Defendant is presumed and the burden shifts to the prosecution to rebut the presumption.  Id at 695.  When the delay is less than 18 months, the Defendant bears the burden of showing prejudice by reason of delay.  Id at 695.  “The time for judging whether the right to a speedy trial has been violated runs from the date of the defendant’s arrest.”  People v Patton, 285 Mich App 229, 236; 775 NW2d 610 (2009).  However, the reason for delay are examined by the trial court and each period of delay is assigned to either the prosecutor or the defendant.  People v Ross, 145 Mich App 483; 378 NW2d 517 (1985).

Delays caused by defense counsel are usually attributed to the defendant (e.g. filing pretrial motions, requesting adjournments etc.), even if it is court-appointed counsel or a public defender’s office.  Vermont v. Brillon, 556 U.S. 81; 129 S.Ct. 1283 (2009).  Delays that are not explained or attributable to the operation of the court system (e.g. docket congestion) are technically attributable to the prosecution.  “[I]f the defendant has not contributed to the delay, a period of otherwise unexplained inaction in excess of 180 days in the prosecution of a charge pending against an inmate is per se a violation of the statute, unless the people make an affirmative showing of exceptional and unavoidable circumstances which hamper the normally efficient functioning of the trial courts.” People v Forrest, 72 Mich App 266, 273; 249 NW2d 384 (1976).  Even when the defendant has failed to raise the issue, appellate courts have vacated a conviction where the delays resulted from long periods of prosecutor inaction.  People v Parker, 21 Mich App 399; 175 NW2d 879 (1970).  The appropriate remedy for a speedy trial violation is to dismiss the charge with prejudice.  MCR 6.004(A).

The COVID-19 pandemic has severely complicated the normal functioning of the criminal justice system in Michigan.  On April 23, 2020, the Michigan Supreme Court issued Administrative Order 2020-10 which delayed all jury trials in Michigan 60 days, resuming only on June 22, 2020.  Even then, courthouses that have not yet reached Phase 3 under Administrative Order 2020-14 cannot hold jury trials without permission of the State Court Administrator’s Office (SCAO).  There are still several locations in the State of Michigan where jury trials have not occurred since March 2020.  This may not only result in a constitutional violation to defendants but also poses a potential danger to physical health as well.  Defendants unable to post bail may be in pretrial detention in jail conditions where masks are not mandated, social distancing is impossible, and the chances of contracting COVID-19 are higher than if they were confined to their home.  The present public health crisis has hampered the fair administration of justice.

Fortunately, Michigan Court Rules provide a possible remedy for release from pretrial detention when speedy trial issues are apparent.  MCR 6.004(C) states “[i]n a felony case in which the defendant has been incarcerated for a period of 180 days or more to answer for the same crime or a crime based on the same conduct or arising from the same criminal episode, or in a misdemeanor case in which the defendant has been incarcerated for a period of 28 days or more to answer for the same crime or a crime based on the same conduct or arising from the same criminal episode, the defendant must be released on personal recognizance, unless the court finds by clear and convincing evidence that the defendant is likely either to fail to appear for future proceedings or to present a danger to any other person or the community.”  In computing the 28-day and 180-day periods, the court is to exclude:

  • “Periods of delay resulting from other proceedings concerning the defendant, including but not limited to competency and criminal responsibility proceedings, pretrial motions, interlocutory appeals, and the trial of other charges.” MCR 6.004(C)(1).
  • “The period of delay during which the defendant is not competent to stand trial.” MCR 6.004(C)(2).
  • “The period of delay resulting from an adjournment requested or consented to by the defendant’s lawyer.” MCR 6.004(C)(3).
  • “The period of delay resulting from an adjournment requested by the prosecutor, but only if the prosecutor demonstrates on the record either (a) the unavailability, despite the exercise of due diligence, of material evidence that the prosecutor has reasonable cause to believe will be available at a later date; or (b) exceptional circumstances justifying the need for more time to prepare the state’s case.” MCR 6.004(C)(4).
  • “A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run, but only if good cause exists for not granting the defendant a severance so as to enable trial within the time limits applicable.” MCR 6.004(C)(5).
  • “Any other periods of delay that in the court’s judgment are justified by good cause, but not including delay caused by docket congestion.” MCR 6.004(C)(6).

For a defendant that is already a state prisoner on unrelated convictions, the following rules apply as to untried charges:

  • “[T]he inmate shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney of the county in which the warrant, indictment, information, or complaint is pending written notice of the place of imprisonment of the inmate and a request for final disposition of the warrant, indictment, information, or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time or disciplinary credits earned, the time of parole eligibility of the prisoner, and any decisions of the parole board relating to the prisoner. The written notice and statement shall be delivered by certified mail.” MCR 6.004(D)(1).
  • “In the event that action is not commenced on the matter for which request for disposition was made as required in [MCR 6.004(D)(1)], no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information, or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” MCR 6.004(D)(2).

If you are in pretrial detention awaiting your day in court but your proceedings are chronically delayed due to the COVID-19 pandemic, you may have a speedy trial violation justifying release on your own personal recognizance.  A skilled criminal defense lawyer can help you craft such a motion to bring before the judge and argue for your immediate release.

If you are charged with any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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