I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Wait a minute. Being incarcerated 680 days isn’t prejudicial?

Yesterday’s 4-4 affirmance in Johnson v. State contains this startling conclusion:  Johnson’s trial was delayed 680 days.  The plurality opinion (by Pierce, joined by Carlson and Randolph, with Lamar joining in the result only) concedes Johnson proved 3 of 4 factors for a speedy trial claim in his favor– the delay was well past the 8 month period that was presumptively prejudicial,  he made timely demands for a trial, and the state proved little or nothing to show the reason for delay.  That left only the fourth factor, whether he was prejudiced.  The plurality takes two routes to avoid the obvious conclusions from that factor:  First, it pretends that the first factor– that a delay over 8 months is “presumptively prejudicial” doesn’t shift the burden to the state to prove lack of prejudice:

But let us be clear; when the delay is presumptively prejudicial that does not mean that actual prejudice to the defendant exists. Rather, actual prejudice is determined at a different point in the Barker analysis.

I take this to mean that the mere fact a court finds something prejudicial on page four of an opinion has no impact on the analysis of prejudice on page six.  Justice Dickinson’s dissent (joined by Chandler and Kitchens, with Waller noting he joins in part– I suspect the non-barbed parts, although he doesn’t say) did not leave this odd bit of reasoning unoted.

The second step is even more surprising:  The court holds that even though Johnson was forced to sit in jail the whole 680 days and had requests for reduction of bail ignored, he was not prejudiced–

Johnson does not come close to showing a prima facie case of actual prejudice, nor does the record reveal that Johnson suffered any prejudice other than being incarcerated. This Court will not infer prejudice out “of the clear blue.”

How is that possible?  And what does it mean to say “prejudice is presumed” after a delay over 8 months yet that the defendant still loses if he doesn’t show prejudice?

Justice Dickinson’s biting dissent is well worth a read, in particular for the biting parts, like this (the opening paragraph):

It is no secret that, for the past twenty years, the Sixth-Amendment right to a speedy trial has been under attack and on life support. Although this Court’s previous decisions have suggested that—given the right set of facts—a speedy trial claim could possibly be won, today’s final, fatal blow mercifully puts the criminal-defense bar out of its misery. Whereas previous decisions have been less than clear, today’s plurality opinion is as subtle as a stick of dynamite—the Sixth-Amendment right to a speedy trial in Mississippi is dead.

There’s also this, after quoting Judge Green’s refusal to allow testimony from the defendant about how he was prejudiced (Judge Green: “I’m asking you. We’re not taking any testimony at this time. You’re going to make the argument to the Court what the prejudice is, and then we’re going to pick a jury and try the defendant.”):

This statement reminds me of a judge, now deceased, who was fond of saying, “Marshal, bring in the criminals and let’s give ‘em a fair trial!”

and there’s this:

After conceding that the delay in this case was presumptively prejudicial, the plurality attempts to redefine the term. (Stay tuned in case the meaning of “presumed innocent” is challenged in some future case.)





20 comments to Wait a minute. Being incarcerated 680 days isn’t prejudicial?

  • billdees

    I thought Lewis Carroll’s book, Through the Looking Glass, was about Alice, not Randy Pierce.

  • meanderline

    O.K. I was starting to feel good going into a three day weekend.

    At least with only 4 votes it’s of limited precedential value, and I use the word “value” with full cognizance of its ironic potential in this context.

    I am so looking forward to my life as a Walmart Greeter in retirement.

  • Ben

    I emailed you, Tom, a copy of today’s NYT editorial about judges who can’t just be judges. It is a bit relevant to this thread.

  • pinebelt

    Not prejudicial to sit in jail for 680 days in a criminal case but is prejudicial to not serve a defendant in a civil case for 4 months. I forget one is a statute adopted by the represenatives of the people and the other a rule adopted by the 9.

  • NMC

    meanderline, it may be less than 4 votes– Lamar did not join in Pierce’s opinion so the opinion itself had 3 votes, while Dickinson’s opinion had 4 (or 3 and a half? See my note above about Judge Waller’s concurrence).

  • Anderson

    I’ve expressed my hope that Johnson seeks cert, as the dissent virtually invites him to do.

  • pam

    This really gets my blood boiling all over again. In my travels I found a guy who’d been incarcerated at Lee County Detention Center for 580 days without indictment. He was ignored by the jail when he inquired as to why he was still there. He was unable to pay, had no money on the jail phone, got no visits, and had no way to help himself from where he was. I only happened to find out about his situation through an “illegal” three-way call I gave him and heard him pleaing for someone to help him. I decided to check into things. The first thing I was told by the personnel at the court building when I called was that “he was where he belonged”. Just another sad story of America in the ditch.

  • pam

    that would be “pay bail”.

  • someoneinnorthms

    680 days for a criminal to wait on his guilty verdict? What’s wrong with that? Prejudice was presumed, as Justice Dickinson obliquely noted, in the same way that his innocence was presumed.

  • Anderson

    Just another sad story of America in the ditch.

    Yep. “P.S. — Happy 4th of July,” Dickinson should’ve concluded.

  • PostHoleDigger

    To err is human. To expect justice from a corrupt system is just plain dumb.

  • Ben

    This is Mississippi. Always will be. We have an abundance of dumbness and we are satisfied with our judiciary: it reflects who and what we are. We have met the enemy, ….

  • Terminator

    Dickinson shouldn’t be hearing criminal cases since his son is one.

  • RazorRedux

    Terminator. Should there be recusals for any of the rest of them to not hear cases involving white people, or lawyers, or males, or married people, or property owners?

    It appears to me it could get to be a long list of disqualifiers pretty quickly.

  • Terminator, are you suggesting Dickinson is incorrect (and Judge Green, who I am sure I’ve heard you take pot-shots at) was correct?

    I’ve litigated some speedy trial issues. Dickinson is correct about what the Pierce opinion means about speedy trial law. He’s got this one right, for reasons that should be clear from my post.

    Seems to me there are more problems from former (or would-be) prosecutors on the bench bending the rules till they break to produce affirmances. Your ad hominem attack on Justice Dickinson is inappropriate and uncalled for. You’re not saying he’s wrong, your just trying to slime him.

  • Jane

    Dickinson is turning out to be the Court intellectual. I sometimes watch the oral arguments via computer and he always seems to know what’s going on. Not all of them do.

  • Terminator

    tongue-in-cheek. his son really is.

  • [...] Mississippi Supreme Court finds that holding a man for 684 days doesn’t violate his right to a speedy trial. [...]

  • Beowulf

    what’s he in jail for, jaywalking?

    He must be black.

  • This is so evil.

    Our whole country is engulfed in this sort of injustice. It is profoundly sad that our judges refuse to hear the petitions of the poor and weak and imprisoned. They craft iniquitous legal doctrines that permit them to ignore valid claims – sovereign immunity, state secrets, battlefield exemption, political question doctrine, etc.

    I used the Johnson v. State case as the foundational illustration for my Independence Day sermon: Unjust Judges Our National Sin.

    Christians ought to stand up for justice, if for no better reason, than because our Lord Jesus was subjected to manifest injustice at the hand of Pilate. He was acquitted, and yet to content the mob the Scriptures tell us that Pilate delivered him up to be crucified.

    John Pittman Hey
    Grace Bible Church

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