Court's mistake leads to statutory speedy trial violation

Peter Maharry won in State v. Queen, No. 120,643 (Kan. March 19, 2021), reversing Douglas County second-degree murder, attempted second-degree murder, and attempted voluntary manslaughter convictions. During the prosecution, at one point the district court and the prosecutor incorrectly stated that the statutory speedy trial deadline was April 30 when in fact it was March 30. The district court faulted the defense attorney for failing to inform the Court of the mistake and also held that the crowded docket exception allowed the court to extend the speedy trial period.  The KSC rejected each rationale:

Likewise, here, the appellate record does not include an order entered during the 150-day statutory period that granted a continuance based on any of the reasons authorized in the speedy trial statute. Even so, the State argues the judge implicitly invoked the crowded docket exception. But the overall structure of the statute supports an interpretation that the exception applies only if the trial court enters an order deferring an initial setting to a future date. Each exception in K.S.A. 2020 Supp. 22-3402 requires overt action on the part of the district court and does not automatically spring into operation. 

For example, K.S.A. 2020 Supp. 22-3402(a) and (b) provide an exception when "the delay shall happen as a result of the application or fault of the defendant." Referring to that exception, K.S.A. 2020 Supp. 22-3402(c) says that in such cases, "the trial shall be rescheduled within 90 days of the original trial deadline." (Emphasis added.) Subsections (d), (e)(1), and (e)(2) contain similar provisions if a defendant's failure to appear or competency matters delay the trial. 

But subsections (e)(3), relating to the unavailability of material evidence, and (e)(4), relating to crowded dockets, are different. Rather than require the district court to reschedule the trial, the statutory language provides grounds under which the court may extend the trial time through "[n]ot more than one continuance." The use of the words "extended" and "continuance" in these exceptions is significant. It reveals an intent by the Legislature to require an overt act—the granting of a continuance—for the exceptions to apply. These exceptions do not automatically spring into operation simply because of the existence of the statutory factors. 

As a result, the KSC held that the crowded docket exception did not extend the time limit beyond 150 days. The KSC also held that the record did not support a finding of acquiescence: 

Here, Queen's counsel's statement that the proposed trial date "works for defense" was a passive response to the judge's inquiry into availability and does not rise to the level of acquiescence to a continuance beyond the speedy trial deadline or a waiver of the statutory speedy trial right. Under our caselaw, something more is required than this type of passive response. 

Even so, the district court judge held, and the State now contends, that defense counsel had a duty to speak up because Kansas Rule of Professional Conduct (KRPC) 3.3 (2020 Kan. S. Ct. R. 353), imposes on Kansas attorneys a duty of candor toward the court. KRPC 3.3 prohibits an attorney from knowingly misleading the court as to an incorrect statement of law or fact. We first observe that the record fails to establish that defense counsel knowingly misled the court. We also note the tension between the district court judge's expectations of counsel and both our caselaw and defense counsel's role in the adversarial process in a criminal case, tensions the Court of Appeals discusses. We refrain from that discussion because of the guidance in comment 20 to the prefatory scope of the KRPC. Comment 20 instructs that a violation of a KRPC does not create a presumption that a legal duty has been breached, does not necessarily warrant nondisciplinary remedies, should not be used as procedural weapons, and does not provide adversaries with standing to seek enforcement of the rules. In other words, nothing in the KRPC alters our longstanding caselaw that a criminal defendant has "no obligation to take affirmative action" to protect his or her speedy-trial right.

Because a passive response to the district court's inquiry was not acquiescence, it also did not excuse the speedy trial violation.

As a result, the KSC reversed and remanded with directions to dismiss the charges against Mr. Queen with prejudice.

[Update: this case was named the 2021 ADO case of the year!]