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.)





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