Thursday, November 09, 2006

Speedy trial reversal

Pat Dunn won in State v. Clemence, No. 92,114 (Kan. App. Nov. 9, 206), reversing Dickinson County manufacture and other drug convictions on statutory and constitutional (both Fifth and Sixth Amendment) speedy trial grounds. The COA had little trouble finding all of the factors required for a constitutional speedy trial violation:

[W]e conclude that (1) the length of the delay (more than 2 years from arrest to trial) was presumptively prejudicial, especially considering the clear violation of the statutory period; (2) the reasons for the delay, although shared to some extent, were principally attributable to the State, for its motion practice and appeal of magistrate ruling, together with the inexplicable dismissal and refiling of charges; (3) Clemence timely asserted his right; and (4) Clemence was prejudiced by the delay.

As to our prejudice conclusion, we are mindful that the district court concluded otherwise, but we disagree for the following reasons: (1) The record is replete with statements from witnesses about how long ago the incidents occurred (especially Detective Demars); (2) Clemence had to argue bond amounts numerous times and was incarcerated during much of the elapsed time; (3) the dismissal and refiling was "done to gain a tactical advantage by the State"; (4) the defendant's discomfort, oppressive pretrial incarceration, anxiety, and concern must be considered prejudicial; (5) Clemence had employment, housing, and transportation problems resulting from the delay; (6) the delay enabled the State to convince [a witness] to testify against Clemence, which the defense claims could not have been achieved until after the case was refiled.

Nice result in a published case.

[Update: the state filed a petition for review on December 8, 2006]

[Further update: the KSC denied the state's petition on February 13, 2007 and the mandate has issued].

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