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New Appellate Decision Finds COVID Delay of Trial is Neutral

Posted by Sean A. Black | Feb 22, 2022 | 2 Comments

Labbee v. State (A22A0246, February 10, 2022) is an appeal from the denial of a constitutional speedy trial motion.  

The criminal defendant was indicted in May 2016.  Discovery was provided in July 2016. Over the next three years, the trial judge variously granted continuances to both the defendant and the State.  It was continued from the February 2020 calendar and then was not rescheduled due to the COVID emergency.  During the period when jury trials were still suspended on account of COVID, Labbee filed his motion for discharge and acquittal based on constitutional speedy trial issues.

When a defendant raises these issues, the court must conduct a two-part test as laid out in the US Supreme Court case of Barker v. Wingo.

Step one is to determine if the delay between arrest, indictment or formal accusation and the trial is sufficiently long as to characterized as presumptively prejudicial.  A one year delay is typically presumed to be prejudicial.  A delay of five years or more was properly decided by the trial court to be presumptively prejudicial.

Step two is to weigh four factors as between the State and the defendant: "(1) whether the delay before trial was uncommonly long, (2) whether the government or the criminal defendant is more to blame for the delay, (3) whether, in due course, the defendant asserted his right to a speedy trial, and (4) whether he suffered prejudice as the delay's result."

The trial court found the delay was uncommonly long and weighed this against the State, but not heavily. The trial court based this on the complexity of the case, an accusation of serious sexual offenses with multiple victims and a large volume of discovery, including 15 DVDs and forensic interviews of alleged victims.  The Court of Appeals agreed.

The trial court attributed some of the delay to the State, some to the defense, and some was shared.  The Court of Appeals disagreed with some of the trial court's attribution, but the interesting part of this discussion is the part dealing with the delay caused by COVID.

Labbee argues that, because the State includes not only but the prosecution but the court and the judges, the delay caused by COVID and the Chief Justice suspending jury trials should weigh heavily against the State.  The Court of Appeals acknowledges that judges are a part of the State but denies Labbee's argument.  If the delay was caused by court negligence or generally overcrowded courts, then that is something that the State is responsible for and would be weighed against the State.  Barker v. Wingo held that the Government bears responsibility when the ultimate responsibility for such circumstances lies with the Government.  Because the pandemic arises outside of the control of either party or the courts, it will not be weighed against either parties.

As to the third factor, this is heavily weighted against Labbee because he never asserted his right to speedy trial until more than five years later.

On the fourth factor, the Court of Appeals agreed with the trial court's finding that there was no evidence of actual prejudice, only the presumed prejudice from the uncommon delay.

At least as far as the Court of Appeals is concerned, the pandemic-caused suspension of jury trials will not give criminal defendants an easy out.  Obviously, a case with earlier assertions of speedy trial rights or demonstration of actual prejudice may produce a different outcome.

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.


Dexter Williams Reply

Posted Dec 06, 2022 at 14:11:35

A demand for trial under statutory Georgia law OCGA 17-7-170 gives a twist to this. So can a Superior Court Judge deny a Demand for Speedy Trial under 17-7-170 based on Covid/Judicial Emergency? Denying is different from suspending and tolling, right? He can suspend or toll but outright deniel is not lawful, right?

Sean A. Black Reply

Posted Dec 07, 2022 at 06:28:21

Sorry for being picky. A demand for statutory speedy does not actually trigger action by a judge, whether Superior or State. It is the motion for discharge that is made once the conditions have been met under OCGA 17-7-170 that presents the issue for decision by the judge.

The demand has to be filed at the same term of court at which the defendant is indicted or accused. The court can allow the defendant to file a demand or succeeding terms, but the judge is not required to give that permission.

There are requirements about the titling and filing of that demand.

The filing sets up that the defendant must be tried at the current term or the next term or be discharged. So, here comes the major “but” which will avoid discharge during the COVID stay. But, there must have been juries impaneled and qualified to try the defendant. So, certainly during the period when no courts were allowed to bring in juries, there would be no time counted against the demand.

OCGA 17-7-170 does not provide any mechanism or right to have the court bring in juries that would qualify for counting for the demand for statutory speedy trial.

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