The Right to a Speedy Trial in Alabama - Part 2

This is Part 2 of a four-part article on Alabama's speedy trial right. The text is one article, divided into four separate posts due to its length.

The Right to a Speedy Trial in Alabama - Part 2
by William L. Pfeifer, Jr.

Reason for the Delay
If a presumption of prejudice has been established in the length of the delay, the second factor to be weighed is the reason for the delay. Not all presumptively prejudicial delays constitute a denial of the right to a speedy trial. However, the burden of justifying any delay rests with the State. Barker v. Wingo, 407 U.S. at 531. The reason for the delay is particularly important in this weighing process, as it involves an assignment of responsibility for the delay. For example, in Barker v. Wingo, the Supreme Court found that the defendant was not deprived of his right to a speedy trial because the record demonstrated he did not want a speedy trial, and had in some ways at least passively contributed to the delay.

The Supreme Court in Barker v. Wingo recognized three categories for delay: (1) deliberate delay; (2) negligent delay; and (3) justified delay. Deliberate delay by the State will clearly result in weighing this factor against the State. Ex parte Clopton, 656 So. 2d 1243 (Ala. 1995); Wheat v. State, 662 So. 2d 1218 (Ala. Crim. App. 1995). Some Alabama cases have broadly stated that a defendant must show "purposeful and deliberate delay by the prosecuting authority" to prevail on this issue. Pierson v. State, 677 So. 830 (Ala. Crim. App. 1996). However, this phrasing is a somewhat misleading statement of the burden on the defendant. In Barker v. Wingo, the Supreme Court stated that in addition to deliberate prosecutorial delays designed to hamper the defense, neutral reasons such as negligence or overcrowded courts should also be weighed against the State (though weighted less heavily). Other Alabama cases have made it clear that although mere inaction by the State is weighed less heavily against the State than deliberate prosecutorial delay, it still must weigh against the State because the ultimate responsibility for such circumstances is on the government. Smith v. State, 409 So. 2d 958 (Ala. Crim. App. 1981); Taylor v. State, 429 So. 2d 1172, cert denied 464 U.S. 950 (1983).

Despite having weighed such inaction against the State in the past, the Court of Criminal Appeals departed from this policy in State v. Stovall, 947 So. 2d 1149 (Ala. Crim. App. 2006). In that case, a delay between the date of a defendant’s initial arrest and the date he was indicted was caused by a delay in testing by the Alabama Department of Forensic Sciences. This was determined to be a neutral reason for delay, which would not ordinarily require a dismissal of the case, and was not weighed in favor of the defendant.

The State has "a constitutional duty to make a diligent, good-faith effort to bring the defendant to trial." Steeley v. State 542 So. 2d 1309 (Ala. Crim. App. 1988), citing Smith v. Hooey, 393 U.S. 374 (1969). In Hayes v. State, 487 So. 2d 987 (Ala. Crim. App. 1986), the Court of Criminal Appeals held that the State's failure to make a good faith effort to locate a defendant or take him into custody constituted a deliberate delay for purposes of determining whether or not the defendant had been deprived of his right to a speedy trial. In Clopton, where the defendant was unaware of his indictment until his subsequent arrest three years later, the Alabama Supreme Court held that the defendant was denied his constitutional right to a speedy trial because the State did not make a good-faith effort to find him.

The State is allowed some leeway for delay in situations where they are actively attempting to secure essential witnesses. The courts have held that a missing witness is a valid reason to justify an appropriate delay, and that delays that would otherwise be excessive may be "tolled" by the unavailability of an essential prosecution witness. Austin v. State, 562 So. 2d 630 (Ala. Crim. App. 1989), citing United States v. Buffalino, 576 F. 2d 446, 453 (2nd Cir. 1978); Barker v. Wingo, 407 U.S. at 531; and United States v. Avalos, 541 F. 2d 1100, 1114 (5th Cir. 1976). However, the State needs to show that a good-faith, diligent effort has been made to find the witness. Austin, citing United States v. Lawson, 545 F.2d 557.

If a defendant's own actions are primarily responsible for any delays in his case reaching trial, then the courts tend to look with disfavor on a defendant's subsequent argument that the delay denied him his right to a speedy trial. "[D]elays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker." Zumbado v. State, 615 So. 2d 1223 (Ala. Crim. App. 1993). For example, in Turner v. State, 924 So.2d 737 (Ala. Crim. App. 2002), there was a 46-month delay between the defendant's arrest and trial. The court pointed out that although the delay was presumptively prejudicial, the reasons for the delay were primarily attributable to the defendant's own actions. After his arraignment, Turner filed more than 30 motions; before the original trial date, it was continued by agreement between both sides; the defendant asked for another continuance which was granted; the initial indictment was dismissed after a successful motion by the defendant; and after he was re-indicted a year later, the defendant again moved for, and was granted, a continuance. This, among other factors, was weighed against Turner in determining he was not denied his right to a speedy trial, despite the excessive delay.

Similarly, in Belisle v. State, 2007 WL 625025 (Ala. Crim. App. 2007), after finding that a four year delay was presumptively prejudicial in a capital murder case, the court refused to weigh the reason for the delay against the State because most of the delay was attributable to motions filed by the defense.

Editor's Note: This is part two of a four-part article on Alabama's speedy trial right. Please read all four parts of the article in order to understand this complex legal issue.

About the Author: William L. Pfeifer, Jr., is an attorney in Foley, Alabama. This article is an updated and condensed version of an article originally co-written by William L. Pfeifer, Jr., and G. Ray Kolb, Jr., for the March 2004 issue of The Alabama Lawyer , 65 Ala. Law 102. For more information about the author, visit his firm’s website here or go to http://www.prklawyers.com/Pfeifer.

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