noting that “fair likelihood” language was considered for inclusion in revised bail statutes by Oregon’s legislature, but rejected as inconsistent with constitutional provision
How later courts described this case
- noting that “fair likelihood” language was considered for inclusion in revised bail statutes by Oregon’s legislature, but rejected as inconsistent with constitutional provision
- suggesting that dismissal is appropriate only in those cases involving extreme delay, purposeful obstruction by the state or irremediable prejudice to the defendant
- assuming, without deciding, that a statutory right to security release could, if violated, be remedied in habeas corpus
- “the circuit court” must “reach [ ] an independent judgment that evidence which will be admissible at trial” meets the constitutional standard
Written by the judges who cited it.
The opinion
TONGUE, J.,
concurring.
I agree with the result reached by the majority and do not necessarily disagree with what the majority seeks to accomplish by its opinion. I do not, however, agree with some of the statements made by the majority in its opinion or with some of its reasoning. I also do not understand some of its reasoning. On the contrary, I find myself more in agreement with the reasoning of the concurring opinion by Tanzer, J. Because of the need that this case, as a petition for writ of habeas corpus, should be decided without further delay, I do not belabor these differences.
I am disturbed, however, with the statement by the majority that "* * * If the accused continues in custody, any further postponement of her trial will no longer be 'trial within a reasonable time’ in the sense of ORS 135.747,” so as to require dismissal of this indictment without prejudice. The majority, by its opinion, is critical of the fact that there has been "a time of approximately 19 months since the conclusion of the omnibus hearing that cannot be laid to any request of plaintiff * * Unfortunately, the courts, including this court, can hardly disclaim responsibility for much of this delay.
This case was argued and submitted to this court for decision on June 25, 1980. Historically, petitions for writs of habeas corpus have demanded not only preferential, but accelerated decision by the courts and should be decided within days, not months, although the issuance of an opinion explaining the reasons for such action may follow later. Yet it has taken the majority more than four months to make a decision denying this petition, despite the fact that members of this court are in agreement that the petition should be denied, and disagree only upon the reasons for doing so.
The potential problems resulting from the possible dismissal of the indictment without prejudice unless the *92 accused is released from custody are compounded by the fact that an appeal is now pending before the Court of Appeals involving the allowance by the trial court of defendant’s motion to' suppress evidence. Aside from the question whether, pending that appeal, the trial court has jurisdiction to do anything, is the fact that upon such a dismissal that appeal would become moot and the issues raised in that appeal would be unresolved and would remain to be resolved in the event that the accused is again indicted for this murder. In such an event, it can be expected that the accused would again make the same motion to suppress; that the trial court would again allow that motion and that the trial of this case would then be again postponed by another appeal by the state.
If this self-admitted participant in such a brutal killing is not brought to trial and is eventually turned free for failure to be given a "speedy trial,” this court must bear a heavy share of the responsibility.