In December 2018, the Kentucky Supreme Court decided Henderson v Commonwealth, 563 S.W.3d 651 (Ky. 2018), a case where the defendant, Mr. Henderson – charged with and convicted of Assault, Sexual Abuse, and Unlawful Imprisonment, all in the first degree – complained about not getting his constitutional right to a “fast and speedy trial.” In that case, Mr. Henderson waited just four months shy of five years between his arrest and trial. Along the way, Mr. Henderson asserted his fast and speedy trial right a couple of times, but along the way had issues with his attorney, some of which impeded the ability of his case to move forward. If the Court were to decide that his fast and speedy trial rights had been violated, the result would be that his conviction would be vacated, and his case dismissed, and extreme remedy to be sure.
In deciding that his fast and speedy trial rights had not been violated, the Supreme Court employed a four factor test, originally announced by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). Importantly, the Supreme Court made very clear that NO ONE FACTOR outweighed the others. Rather, the Court quoted three prior Kentucky Supreme Court decisions (all of which referenced Barker v. Wingo). Omitting those citations, the Court held:
No single one of these factors is determinative by itself. We regard none of the four factors … as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. [Emphasis added.]
Having set the goal posts, the Court went on to analyze Mr. Henderson’s case.
- What was the length of the delay? The Court found that a 56-month delay was presumptively prejudicial to Henderson.
- What was the reason for the delay? The Court found that there were three major reasons for the delay, two of which were due to Henderson’s own actions: (1) The trial court’s tardiness in responding to Henderson’s motions to suppress evidence, (2) Henderson’s insistence upon filing numerous and repetitive pro se motions, while still being represented by appointed counsel, and (3) Henderson’s continuous demands for a new appointed attorney. On the balance, this factor weighed against Henderson.
- How vigorously did the defendant assert his right to a fast and speedy trial? A defendant’s assertion of his right must be vigorous, and his conduct must not act in opposition to the assertion of that right. Here, Henderson asserted his right to a fast and speedy trial at least three times with motions, not including verbal requests. On the other hand, Henderson’s actions in filing numerous pro se motions without going through counsel, trying to remove his appointed counsel, and failing to object contemporaneously with the delays that occurred in his case, all combined to be conduct inconsistent with moving for a fast and speedy trial. On the whole, the Court found that Henderson’s “invocation [of his right] was less than ‘vigorous.’”
- Prejudice to the defendant caused by the delay. The court found “to a certain extent” that Henderson suffered prejudice through oppressive pretrial incarceration. However, Henderson did not show any proof of anxiety beyond that which anyone being prosecuted would feel, and did not show “any concrete prejudice to his defense.” [For instance, no showing that evidence had disappeared, witnesses had died or moved on, memories of witnesses had faded, etc.] In fact, the opposite had occurred. The alleged victim was not a convicted felon at the time of the arrest, but had become one since the arrest, giving Henderson an impeachment-by-proof-of-felony opportunity at trial. This factor was in favor of the Commonwealth.
Hence, Henderson lost his case by having three of the four factors found against him; but at least the Court laid down the rules going forward for what the defendant has to prove when asserting a violation of his F&ST rights! The goal posts were set.
Right?
Not so F&ST! (See what I did there?) Less than four years later, the Kentucky Supreme Court decided Commonwealth v. Hensley, 655 S.W.3d 122 (Ky. 2022). Hensley was charged with possession of a controlled substance and drug paraphernalia. Hensley persistently insisted on a fast and speedy trial. Arrested in January, trial was set in upcoming August. However, in June the Commonwealth informed the court that the state’s laboratory was experiencing a backlog of testing, and that the substance that was seized would not be tested for three or four months, necessitating a September trial. The Court refused to move the trial date, and when the Commonwealth announced at a pretrial conference that it would not be ready, the trial court dismissed the case. The Commonwealth appealed, ultimately leading to the Kentucky Supreme Court decision.
It should be noted that at least two of the Barker v. Wingo factors would be in favor of Hensley: He was vigorous in his assertion of his fast and speedy trial right, and the reason for the delay fell squarely at the Commonwealth’s feet, as the state lab was behind in testing. However, the Supreme Court never got to an analysis of all four factors! In the very second sentence of the opinion, the Court states:
Our jurisprudence has adopted a four-factor test to determine whether the right to a speedy trial has been violated, the first and most important factor being the length of the delay.
The Court placed so much emphasis on this first factor that it did not even examine the other three factors. In fact, the Supreme Court, in a nod to the prosecution, held:
In Hensley’s case, the period between arrest and dismissal was 6 months and 23 days. Hensley was charged with possession of a controlled substance and possession of drug paraphernalia, neither of which in this case can be considered serious or complex for speedy-trial purposes. The Commonwealth believes the delay falls short of the threshold for presumptive prejudice and that we need not go further in our analysis. [Emphasis added.]
B Scott West Does Not Approve!
Without overruling Henderson, the Supreme Court moved the goal post! “No one factor outweighs the others” suddenly becomes “one must get by the first and most important factor,” or the Court doesn’t look at the other three. Yet, whether or not the length of delay, the first factor, is presumptively prejudicial could be dependent on the prejudice the client suffers under the fourth factor!
Moreover, the Supreme Court’s determination that 6 months and 23 days is not presumptively prejudicial is undermined by its statement that the case was neither serious nor complex. How long does it take to put a substance in a mass spectrometer and press the button? A case like this could be tried six weeks from arraignment. The only thing the Commonwealth had to do to meet the scheduled trial date was jump line and get ahead of other tests for which no motions for speedy trial are pending, which is the vast majority of them.
Can you imagine going to a doctor for a biopsy only to be told that there is a back log, come back after 8 months?
So what is the test going forward? Four factors, none of which outweighs the others, or the first factor is the most important factor? If the first factor is the most important, then explain the result in Henderson, where the defendant sat in jail for nearly five years.
This issue needs further litigation to be ironed out. If you are under arrest, and you want a fast and speedy trial, call B Scott West.
