Speedy trial entitlement. Just what does that mean?

The question is prompted by the upcoming trial of Sopranos actor Lillo Brancato for the murder of an off-duty New York police officer. The incident took place in September 2005. That’s three years to get to trial!

Is this par for the course for places like New York? Couldn’t his lawyer argue that he’s not getting his constitutional right to a speedy trial? Just what exactly does a ‘speedy trial’ mean in constitutional terms anyway?

Most jurisdictions have statutes that clarify speedy trial rights. Here is New York’s:


First off, the date of the actual crime is irrelevant, except as far as statute of limitations provisions apply. The relevant time is usually date of arrest. Second, as a practical matter the defense team often requests extensive delays, during which the defendant is usually out on bail.

I’m with you right until that last clause. Most defendants are not out on bail, at least in murder cases. *See * http://www.albany.edu/sourcebook/pdf/t5552004.pdf

In state court cases from 2004, for example, only 9% of those defendants charged with murder were released with financial condtions pending trial. 3% were released without financial conditions. *Id. *

I’m a New York lawyer, but I avoid criminal practice as much as possible, so I can’t give you a specific answer. However I’ve run across enough New York cases involving speedy trial issues that I can give you some idea.

Gfactor has posted the main New York statute on speedy trial. The key element of the statute is that the prosecution may be dismissed where “the people [i.e. the prosecution] are not ready for trial within” the specified time limits.

What happens is that when faced with a speedy trial motion is that the court goes day by day through each of the delays caused since the beginning of the case and charges them to either the prosecution or the defense (or sometimes to the court, for delays not chargable to either side). Whether a particular delay is chargable to one or another party is controlled by the statute (see subsection 4, which lists delays not chargable to the prosecution, including when the defendant is absent and cannot be found, time to determine the defendant’s competency or for other motions, and a host of other reasons) and by court interpretations.

After the court counts up the days chargable to the parties, sometimes having to make fine factual determinations as to who is charged with particular periods, it determines whether the prosecution has used more or less than the time allowable.

I have no idea why the particular trial the OP is discussing took so long, but I’m sure there was extensive motion practice (and possibly some appeals), which can delay a trial for years. Also, if the defense requests adjournments of the trial (for whatever reason) and the court grants them, those are not chargeable against the prosecution’s speedy trial time. Particularly for a serious charge like murder, where the defendant is out on bail and represented by aggressive counsel, it isn’t shocking to have the trial a few years after the incident.

Would it be fair to assume that New York murder trials usually take that long because the defendant waives speedy trial protections, then, or do NY prosecutors just get an awfully long time to build a case?

I’m not a lawyer, although several of my law school classes were taught by practicing DA’s and public defenders (not in NY, however). But as a very general statement, it’s my understanding that a delayed trial generally favors the defendant, insofar as memories fade and witnesses might become unavailable. My guess would be that this defendant probably waived his right to a speedy trial (or failed to invoke it, not sure which is more correct in NY, I kind of skimmed the statute). Again very generally, I think whatever the prosecution’s benefit would be in extra time to build a case would be small compared to the defendant’s advantage.

The reality is that it’s tough to predict who will benefit from a delay. On the one hand, memories fade, and the prosecution has the burden of proof. On the other hand, alibi witnesses die and new evidence is discovered as time passes. That said, it’s usually the defense that asks for the continuances, files motions, appeals adverse rulings, or escapes custody. Those delays all get excluded from the speedy trial time.

Ok, maybe not murder cases, but a lot of other crimes. I could be wrong, but AFAIK, the considerable majority go off on bail in non-violent crimes, which are the majority of crimes anyway.

No intent to hijack.

A buddy of mine was arrested in Georgia and booked for a felony. He posted bond and was released the next day. Apparently, one of the conditions of his release was that he waived his right to a speedy trial. To this day and to the best of my knowledge, he has not been formally arraigned.

Can anyone explain the mechanism here?

Does the SOL clock start ticking when he’s charged? If he had stayed in County would the People have been forced to bring charges forward within 45 days?

In Georgia, the SOL clock starts ticking when he’s identified as a suspect, and stops ticking when he’s charged. If the charges were dropped when he was released, then the statute (four years for non-capital felonies) has been ticking away since then.

However, as long as the charges are pending, they don’t have to bring him to trial within the statute period. The statute doesn’t protect you once charges have been filed, unless the state drops the charges with the intent to refile- if the charges are dropped at any point beyond the SOL, he’s free and clear.

IANAL, IANHL, this is all wrong, etc.

There’s a slightly different scheme for capital offenses. This is Georgia’s speedy trial statute, but the Georgia courts have recognized that the statute isn’t coterminous with federal constitutional speedy trial rights.

Nusser v. State, 275 Ga. App. 896, 622 S.E.2d 105 (2005).

Statutes of Limitation are different from either of these concepts. The SOL starts to run when the offense is committed.

Not necessarily, hence my assertion that the SOL starts to run when the suspect is identified (my bolding):

Ah, crap, you’re right.

I won’t make a habit of it.

Georgia’s SOL statute is pretty unusual in that respect.

That’s true, although overall 43% of defendants were detained until case disposition and non-violent offenses include drug offense, in which 40% of defendants were detained until case disposition. Embezzlers, forgers, swindlers, and those charged with driving offenses fared a bit better. But those offenses are a small proportion of those charged. http://www.albany.edu/sourcebook/pdf/t551.pdf

Nevertheless, I think we agree that more than half of all offenders were on bail pending trial. And that many of those who were on bail were charged with non-violent offenses.

In Vermont, the state Supreme Court recently freed a defendant on speedy trial grounds. This has caused a LOT of controversy here, because the reason the trial has been delayed has been that the defendant has fired six of his court-appointed attorneys, whose replacement then has to take months to get up to speed. Any reasonable observer would say that the delay is the defendant’s fault, and is thus not grounds for a speedy trial argument.

Since this ruling, at least three other high-profile defendants have fired their lawyers, clearly for strategic purposes.

Because the court found for the defendant on federal constitutional grounds, an appeal to the federal courts is pending.

As a former law clerk for a federal district court judge, I can say that in our district, anyway, criminal defendants routinely waived their rights to speedy trials.

My sense is that this was most often because (1) the two sides were engaged in working out a plea agreement, which in drug trafficking or gang-related cases generally involved the defendant testifying against others, and didn’t want to feel rushed by a narrow timeframe; (2) the two sides felt they needed a longer period of time to adequately prepare their case, and so the defense lawyer convinced the defendant that it would be in his best interests to waive (if the defendant wasn’t convinced, the speedy trial time would be tolled statutorily upon motion, assuming the case was sufficiently complex); or (3) the defendant was out on bond, and thus the need for a speedy trial was less pressing for everyone concerned.


Here’s the order granting cert: http://origin.www.supremecourtus.gov/qp/08-00088qp.pdf

Thanks, Gfactor!

The case was in the news quite a bit up here. Based on news reports, here’s the sequence of events:

The defendant will ask for a new attorney. The judges, especially after the first couple of times, are reluctant to allow another change, so they tell the lawyer and the defendant to quit playing around and work together. The defendant then accuses the lawyers of various acts of malfeasance, mopery, dopery, etc. Eventually the lawyer gets justifiably fed up and tells the judge that he is unable to represent the defendant due to “irreconcilable differences” or whatever the legal equivalent is, and the judge reluctantly goes along.

It’s hard to see the state’s hand at work in causing a delay in the trial, here.