ASK THE BARRISTER: When the Court Delays, What Are the Defendant’s Rights?

By Rachel Elovitz

Dear Barrister:

One Sunday morning, a young woman came to my church with her six young sons. They exited the vehicle and began walking toward the church. The youngest son, who appeared to be almost three, let go of his mother’s hand and ran back toward the car, shouting that he had forgotten “Mr. Rabbit,” a stuffed animal that he carries everywhere. The neighbor who drove the family to the church had already started to back up and the child was hit.

The paramedics arrived, and while the EMTs did not see anything that suggested the child had sustained any injuries, the mother insisted that they take him, so that he could be checked by a physician. At the hospital, the medical personnel discovered that the child had suffered some minor internal injuries, but after a couple of days, he was returned to his mother. She was subsequently arrested for cruelty to children in the second degree, among other charges. That was about 23 months ago.

The mother has not yet been arraigned, and I’m not certain whether she has been formally accused or indicted. She is unemployed, lives in government housing, and does not have the funds necessary to hire a lawyer. And since she has not yet gone to court, she has not had a chance to ask for a court-appointed lawyer.

I recall something about a defendant being entitled to a speedy trial. When does that occur – and at what point is this mother allowed a court-appointed attorney?

Sincerely,
Retired in Roanoke

Dear Retired:

When I was young, I would watch Perry Mason, The Paper Chase, and other similar shows, and I thought the world of law was one filled with bright-line rules, common sense notions, precision, and transparency. That, I later learned, is rarely the case. The same is true for the right to a speedy trial, a right recently addressed by the Georgia Court of Appeals on June 15, 2009, in Hayes v. State, 2009-Ga-0616.742.

In the Hayes case, Linda Hayes’ four-year-old grandson was injured, and Hayes and the child’s biological parents were charged with aggravated assault, aggravated battery, and cruelty to children after the child was found to have unexplained bruises on his body. Hayes spent 10 months in jail. She was released when the state dead-docketed her case. Forty-two months later, the state re-indicted her and her codefendants. Hayes was arraigned a month later, and three months after the arraignment, she filed a motion to dismiss based on the state’s violation of her right to a speedy trial. The trial court denied her motion some eight months after it was filed. Her attorney appealed the trial court’s decision.

In reviewing the case, the Court of Appeals noted that the template used for deciding speedy-trial claims was outlined in the 1972 case of Barker v. Wingo and the 1992 case of Doggett v. United States. The analysis is two-pronged. It involves an initial determination of whether the time between the defendant’s arrest, accusation or indictment (whichever is earlier) is sufficiently long to be “presumptively prejudicial.” If it is, then the court continues to the second prong of the analysis, a balancing test of four factors: the length of the delay, the reason for the delay (whether it is attributable to the state or the defendant), the timeliness of the defendant’s assertion of the right to a speedy trial, and any prejudice.

Your inquiry does not note the basis for the state’s delay. If designed to gain an improper advantage over the defendant, to coerce her into testifying against a codefendant, or to simply harass her, it should result in a dismissal of the case. According to Justice Blackburn in Hayes, it “virtually always” does in such cases, because that kind of bad faith “strikes at the very heart of the speedy trial guarantee.” However, Justice Blackburn noted that in the majority of cases, delay results from “official neglect,” and while such conduct does not compel relief, it is not “automatically tolerable.”

I also understand from your inquiry that the mother has not sought to dismiss the case based on the denial of her right to a speedy trial. In Hayes, Justice Blackburn said that the defendant’s five-year delay in filing her motion to dismiss could not be weighed heavily against her in light of the state’s failure to indict for three years following her arrest and the delay in the appointment of counsel. That ruling bodes well for your fellow church member. That said, it would still be wise for her to pay a visit to the public defender’s office, fill out an application, and meet with an attorney to find out what the case posture is, whether she has been formally charged, and what her next steps should be.

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