The Effects of Covid-19 on Access to a Speedy Trial

FOURTH COURT UPDATE

By Justice Lori Valenzuela

In March 2020, lives across the globe were affected in unimaginable ways when Covid-19 became a household fear and began to spread. People lost their jobs; others buried loved ones; and the settings of our homes changed and served as offices, schools, and daycares. Hospitals were pushed beyond capacity in inconceivable ways, and our mental and physical wellbeings were challenged. As we all experienced firsthand, the courts were not spared the disruption that ensued. Over the past twoand-a-half years, the criminal courts shut down, reopened, and then shut down again. Although judges and court staff worked tirelessly to address immediate needs, jury trials were put on hold, and in the interim, some accused waited helplessly, in and out of custody, while the courts contemplated a safe reopening before inviting jurors back to the courthouse. Despite best efforts to return to “normal” dockets, things have not changed overnight, and there remains a backlog to get a case heard before six or twelve impartial jurors. As a result, motions for speedy trial are frequently urged by defendants, perhaps now more than ever.

The Sixth Amendment to the United States Constitution and article 1, section 10 of the Texas Constitution guarantee a criminal defendant the right to a speedy trial. U.S. Const. amend. VI: Tex. Const. art. I, § 10; State v. Lopez, 631 S.W.3d 107, 113 (Tex. Crim. App. 2021). The right to a speedy trial attaches once a person becomes an “accused”— that is, once the person has been arrested or charged. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). Each case must be reviewed on its own merits because courts “cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate.” Barker v. Wingo, 407 U.S. 514, 521 (1972). A unanimous United States Supreme Court noted in the landmark case of Barker v. Wingo that the right to a speedy trial differs from other constitutionally guaranteed rights because it is often more in the interest of society and the justice system as a whole than it is in the interest of the accused. Id. at 519-22. The Court held that determinations of whether the right to a speedy trial has been violated must be made on a case-by-case basis to evaluate the circumstances of the case and the reasons for any delays.

Specifically, the Supreme Court listed four factors that courts should consider in addressing speedy-trial claims: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant. Id. at 530. If the defendant can make a threshold showing that the interval between accusation and trial is “presumptively prejudicial,” then a court must consider and weigh each of the remaining Barker factors. Generally, a delay of eight months to a year, or longer, is presumptively prejudicial and triggers a speedy trial analysis. Lopez, 631 S.W.3d at 114. However, the delay that triggers analysis for an ordinary street crime will be less than for a serious, complex conspiracy charge. Barker, 407 U.S. at 531.

Assuming the length of delay is presumptively prejudicial, the inquiry proceeds to the remaining factors, beginning with the reason for the delay. A deliberate attempt to delay the case will weigh against the State. Delay caused by the defendant or her attorney will weigh against the defendant. This is most often a consideration for the court when a defendant requests a continuance. While overcrowded courts may ultimately weigh against the State and not the defendant, “[d]elay caused by the onset of a pandemic cannot be attributed as fault to the State.” State v. Conatser, 645 S.W.3d 925, 930 (Tex. App.—Dallas 2022, no pet.). The third factor includes a request. A defendant’s failure to timely request a speedy trial suggests that he does not want one. Balderas v. State, 517 S.W.3d 756, 771 (Tex. Crim. App. 2016). Courts also differentiate between a defendant’s request for speedy trial versus requesting a dismissal of a trial. A speedy-trial claim weakens if a defendant seeks dismissal, because it shows a desire to have no trial instead of a speedy one. Cantu, 253 S.W.3d at 283. Lastly, prejudice must be assessed in light of the interests the speedy trial right was intended to protect, including: oppressive pretrial incarceration, minimizing the anxiety and concern of the defendant, and limiting the possibility that the defense’s case will be impaired. Hopper v. State, 520 S.W.3d 915, 924 (Tex. Crim. App. 2017). This last interest includes diminishing memories, unavailable witnesses, and loss of exculpatory evidence.

Motions for speedy trial must be in writing. See Tex. Code Crim. Proc. art. 27.10. The practitioner must determine the appropriate time to urge the motion taking into consideration an analysis based on the timeline, number of settings, and complexity of the case. A defendant’s failure to seek a speedy trial does not amount to waiver, but “failure to seek a speedy trial makes it difficult for a defendant to prevail.” Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003). Unlike Bexar County, many outlying counties have courts of general jurisdiction. As backlogged criminal proceedings resume in these counties, a lawyer should anticipate a lengthy delay in civil proceedings.

Courts must engage in a “difficult and sensitive” balancing process between the conduct of the prosecutor and the defense, and courts are tasked with evaluating the merits of each individual case when ruling on a motion for speedy trial. What makes this motion unique is that we have all lived through this ongoing pandemic—even judges who will decide how much weight, if any, to give when the delay and prejudice are attributed to something that none of us could have imagined in February 2020.

Justice Lori I. Valenzuela has been on the Fourth Court of Appeals since 2021. From 2009 to 2021, she presided over the 437th Criminal District Court. Prior to her tenure on the bench, Justice Valenzuela served as a Bexar County Assistant District Attorney, established a law practice concentrating in criminal defense, and worked as a county magistrate. Justice Valenzuela is an adjunct professor at the University of Texas at San Antonio. Justice Valenzuela received her Bachelor of Arts in Government from the University of Texas at Austin and her Juris Doctor degree from St. Mary’s University School of Law.