State v. Alvarez

McCown, J.,

dissenting

The majority opinion here quite properly imposes upon the State the primary burden of bringing an accused to trial within the statutory time limits set by the Legislature. It also quite properly establishes procedural rules which will assist greatly in determining the factual bases for periods of delay.

I must respectfully differ, however, with the holding that a failure by a defendant to demand a speedy trial may be considered in determining whether there was “good cause” for a delay in bringing an accused to trial. I must also disagree with the finding that the record here establishes “good cause” for any delay.

It can scarcely be doubted that the basic burden of bringing cases to trial is on the prosecution and that the responsibility is also on the State to show a waiver of the right to a speedy trial. To hold that affirmative action by an accused is necessary to protect a constitutional right rather than to waive it emasculates the right just as effectively as to hold that silence or inaction imply a waiver. Both misallocate the burden of proof as well as the burden of insuring a speedy trial. The mere silence of an accused cannot and should not *294 be treated as “good cause” which excuses the State from compliance with the clear command of the statutes. The defendant certainly has no burden to bring himself to trial. Unless a defendant has affirmatively contributed to the delay,.his silence or inaction ought not to diminish the responsibility of the prosecution to bring him to trial within the statutory time.

The remaining issue is .whether or not the activity in the district court during the statutory period constituted “good cause” for delaying the defendant’s trial beyond the maximum statutory period. The trial here was held approximately a year after the offense was committed and approximately 11 months after the defendant was arrested. There is simply no explanation or excuse in the record for the failure to arraign this defendant for more than 4 months after the information was filed and for more than 3 months after the statutes became effective. The majority opinion ignores the crucial fact that no evidence even remotely establishes “good cause” for this delay. The record also shows with reasonable accuracy the number of days which were actually utilized for trials during the 6-month statutory period. Approximately 40 days of that period were actually occupied by trials, either to the court or to a jury. Only 15 of those days were actually utilized for criminal trials, either to a jury or to the court. During the 6-month period involved, civil cases were tried to juries both before and after August 5th. Although the district court stated on August 5th that the earliest possible date for trial in this case would be in December, nevertheless, the county attorney himself tried a civil case in the same district court in October before the statutory period in this criminal case had expired.

The evidence in this record establishes that the trial of criminal cases was not given preference over civil cases and that there was trial time available if the State had made reasonable efforts to follow the command of *295 the statutes. There is. no evidence of any effort to obtain the assistance of another district judge. Excessive governmental delay is unjustifiable whether it is intentional or negligent. It is quite obvious that it might have been reasonably avoided here.

The Legislature implemented the constitutional right to a speedy trial and imposed specific requirements to protect the interests of the public as well as the accused in the prompt disposition of criminal cases. The statutes do not permit the extension of the statutory time for trial to meet the convenience of courts or prosecutors. The time may be extended for any of the specific reasons set out in the statute or for reasons not specifically enumerated, but only if those reasons constitute “good cause.”

The record wholly fails to establish “good cause” for the delay here. In the words of Mr. Justice White in his concurring opinion in Barker v. Wingo, 407 U. S. 514 , 92 S. Ct. 2182 , 33 L. Ed. 2d 101 : “ (U) nreasonable delay in run-of-the-mill criminal cases cannot be justified by simply asserting that the public resources provided by the State’s criminal justice system are limited and that each case must await its turn. As the court points out, this approach also subverts the State’s own goals in seeking to enforce its criminal laws.”

The conviction and sentence of the deféndant here should have been vacated in accordance with the legislative command.

Smith, J., joins in this dissent.