New car.

I gotta have a new car to block to the truck, you know?

Okay, go ahead. Boy like to kick his ass.

Just a woman speedy car speedier than that.

All right. So by now you're wondering, what the heck

am I doing playing little clips of smoking abandoned?

Well, one, because I love smoking abandoned.

Two, because it is lawyer talk. Q A and A.

And we've had a question come in about speedy trial.

And the first thing that jumped into my

head was that little scene from smoking the ban.

Maybe it's just some sick throwback to my childhood of watching that movie over and

over on an old VHS tape that I recorded from the TV version.

But either way, speedy trial.

A question has come in from a gentleman named Steve.

I'm not going to use his last names because I don't use last names here.

We want to protect the innocent.

But Steve has some questions about speedy trial.

And speedy trial is an interesting topic.

I've actually had it come up in my law

practice in two separate occasions over the last couple of weeks also.

So I thought it would take some time and

really try to dig into speedy trial issues.

But try to keep it simple because, like I say, almost everything can be made simple.

Speedy trials can be a little bit of a challenge to make it simple because it is

more complex underneath it all than one might think.

So on the face of it, it looks simple, but underneath it seems complicated.

Usually on the face, things look

complicated, but underneath their simple, this is maybe a little more complex.

But nonetheless, I'm going to try to tackle it here.

And let's jump off with just looking at the question.

Can you please explain the quote right to speed trial and how it relates to

timelines that the prosecution is allowed to bring misdemeanor or felony charges

against an individual in the case of a felony?

Especially, I don't see the benefit to a speedy trial if the prosecution has a very

substantial length of time to bring charges against an individual.

Anyway, I'm trying to understand how the timeline of when the prosecution must be

commenced correlates with when the actual case must be tried.

And then he references a specific case,

State of Ohio versus McGowan over in Franklin County.

And in that case, there's an interesting twist of procedure.

The Franklin County Grand jury returned a quote, no bill.

And as Steve points out, that has resulted

in an order that says time is told for more time to investigate.

And this leaves a case in sort of speedy trial, never never land, where nobody

knows what's going to happen and what do we do about it?

All right. So let's break this down a little bit.

First of all, we have two different things to look at.

We have both constitutional speedy trial.

That is in the 6th Amendment.

There is a constitutional right to a speedy and public trial.

And in most States, Ohio included.

And by the way, I'm going to focus mostly on Ohio here because we are in Ohio, we

have statutory speedy trial where the law is spelled out in the statute.

They hire advice code what the timeline is for various cases.

Now, it seems simple, right?

I mean, for misdemeanors, it's basically for a traffic ticket, 30 days.

And as you get more serious, it would go 30, 60 or forgive me, 30, 45, 60, 90.

And then when you get to

felony charges after you're charged, in theory, you have 270 days.

Now, if you're in jail under the statute, you get three for one.

So that complicates it a little bit, obviously.

So if I have 90 days on a case, but I'm in jail, that's really 30 days.

They got to get it done.

And then if you're in jail on a felony for 270, that's 90 days.

And that seems again, sort of simple once you stop there, but you can't stop there.

And let's talk about how this works.

Let's focus on first things that can toll or postpone speedy trial.

So say I go in and I'm charged with a misdemeanor of the first degree.

The court has to give me a trial within 90 days per the high revised code.

And I say right out of the shoots, I'm going to plead not guilty.

I'm going to demand a jury trial, and I'm going to waive my right to speedy trial.

In other words, I'm not going to assert a speedy trial.

Right. It's my right.

I get to waive it as the defendant.

And a lot of times lawyers will do that.

We'll talk about why here in a second.

Now, the other option, of course, is you

say no, I want a trial within the time provided by law.

I want my speedy statutory trial.

Now, the prosecutor, in theory, has to get

the case to court, prove it, and we have to have a trial within 90 days.

What could derail that?

What, pray tell, could derail the 90 day trial?

Well, there are lots of things.

So if I am the defendant, let's talk about the things the defense can do.

I can actually file motions to suppress.

So say the police searched my car and I

think they did it unlawfully, in violation of the Fourth Amendment.

And I challenged that search with a motion to suppress.

Well, that immediately tolls the timer, stops the speedy trial time.

The theory being that I have created an event.

I have challenged something that now has

to delay the proceedings while we resolve my challenge.

So that will toll time during the period in which it takes to resolve the speedy

trial motion or forgive me, resolve the suppression motion.

So I filed my motion to suppress.

The court conducts a suppression hearing,

say a couple, three, four, five months later, time is told the whole time.

And after the hearing, they get the court issues in order.

Well, if I've done nothing else to tell

time, well, time will pick right back up where it left off.

So you can imagine I just did this on a case the other day.

I started the top of my paper.

I wrote down the date of arrest or service of summons when time would start.

And then I counted the time to the arraignment, which was five days.

And then I plead not guilty for my client.

And there's another 30 or 45 days before we got to a pretrial.

And then there was a snowstorm that occurred that the judge, the court itself

had to reschedule it because courts were closed that day.

All right, what do we do with that? So I have a certificate.

Speedy trial.

Things are tracking very nicely, and the prosecutors got to get the case in in the

appropriate time, and then all of a sudden, boom, we get a Blizzard.

And now the case has continued.

Well, the court can issue an order in those situations that says we hereby find

that we had to do this, and it's going to toll time for purposes of speedy trial

because it was an unforeseen act that had to occur.

So that's another way speedy trial can be told.

And then there's little mysterious ways it can be told.

So, for instance, say I just file a demand for discovery.

As soon as I file that demand, the

prosecutor has a reasonable period of time to respond.

Now reasonable.

It doesn't mean like one day and it

doesn't mean like two years or something in between.

But usually it's a few weeks before you get discovery.

So time is told until you get discovery or they respond to your discovery demand.

Well, then time would pick right back up.

Other things if I ask for a continuance of

the defense and I say, look, I just need more time to prepare.

Well, that's going to toll time.

So the speedy trial time

during which my continuance is granted, that will toll time.

And then let's say, for instance, I fire my lawyer.

I'm a defendant, and I just think, hey, my lawyer sucks.

I should have hired Steve Palmer over at

Yavich and Palmer one of those fine attorneys there, but I didn't.

I hired the competitor and things aren't going well.

The guy's not doing his job, doing what he's doing.

It just doesn't make it simple.

Little gratuitous there anyway.

It just doesn't break it down and make it simple.

So I fire my lawyer and I'm a higher Palmer.

Well, the defendant's actions there will

result in a tolling of the speedy trial because the defendant did it.

So you can sort of get the idea that just because you have a speedy trial and just

because you assert it, there are lots of things that happen that control time.

Now it gets even more complex.

Let's say the prosecutor on the way to

trial realizes, hey, look, I just can't get this done.

The case is going to be dismissed without prejudice, meaning I can refile it later.

What do we do about speedy trial, then?

Well, in theory, it picks up right where it left off.

So if they refile and they've only got five days left, well, now they've only got

five days left, but sometimes it works better for the defense.

There's some weird law.

It's not weird when you get to the sort of

the reasoning behind it or the policy behind it.

But not everything I do in the first case the defense does in the first case, rather

that was dismissed will apply to toll time in the refiling.

So just because I asked for continuances

the first time around the toll time doesn't mean those continuances apply to

the speedy trial provision the second time around.

Now, other things will apply, like motions to suppress discovery, et cetera.

That will apply, but things like a continuance and a time waiver for that

won't doesn't make much sense to dig into it.

I'm not going to go into the nuance of it, but suffice it to say that's fact.

Now let's talk about other what's going on say in the case that Steve brings up.

This is more about the constitutional side of things, because what's happened in that

case, the case originated in municipal court.

So how can you have a felony municipal

court, you might ask, well, what happens is this the police see a felony committed

or witness a felony committed or have information a felony is committed and they

file a criminal complaint in municipal court.

Now, municipal court doesn't have any jurisdiction ultimately over felonies.

In other words, you're not getting a

felony jury trial in municipal court just doesn't happen.

It's got to happen in a common police court here in Ohio anyway.

But it's filed in municipal court, and the

first thing that happens is called an initial appearance.

And think like Rooster Cogburn in True Grit.

In one of those early scenes, he's

testifying against a guy that he apprehended.

What's happening? There is sort of a collapsed initial

appearance preliminary hearing where they're determining whether they're going

to keep holding the guy until the grand jury comes to town.

So let's say I'm charged in municipal court.

They drag me to court, I get a chance at

bond in municipal court, and then they schedule it for a preliminary hearing.

At the preliminary hearing, the judge will

decide, is there probable cause to, quote, bind somebody over, that is, send them

over to common police court where they can finally adjudicate the case

and charge them with a felony and have them indicted.

Now, if there's not probable cause, the judge will dismiss.

If there is probable cause, it'll get bound over.

Now, it doesn't matter if it gets dismissed.

Not really. Most of the time here in Ohio, anyway, the

prosecutor will simply indict the case in common, please.

Anyway.

But in the case that Steve is talking

about, the defendant waived his right to a preliminary hearing.

The case was bound over by agreement

pretty much, and filed in commonplace court that he quotes rule of

superintendents 39 triggered a rule of superintendents where

they got to get the case indicted within 60 days.

And if they don't within 60 days, then in theory, the judge should dismiss it.

Well, these are rules of superintendents.

These are like local rules.

These are rules that govern how the system wants the courts to work in Ohio.

It doesn't necessarily mean that they can't do what they did here.

That is no bill the case for further

investigation just because there was no bill.

And what they've said is there needs to be more investigation to get it indicted.

They need more information.

Now, what does that mean, say, in a drug

case, for instance, it means that they've sent the drugs off to the lab for testing

weight what's in it content, and then it comes back to the report.

So then they can prove the case.

So they can prove that it was actually

cocaine or prove that it was actually meth or whatever the substance is.

That takes time.

And if there's no case pending, they can do that.

That's investigative time. There's no case pending.

The statutory speedy trial stuff is not

happening because the case is dismissed or hasn't been indicted yet.

So they can do that.

Now, that sort of demands the next

question, which is how long can they do that?

Well, here's where you get into that weird

constitutional realm of pre indictment delay.

And this is a little bit different than

speedy trial, but I'm going to cover it anyway.

So pre indictment delay means

the prosecution the state has delayed the case before indicting it.

They just dragged and dragged and dragged and waited and waited and waited.

And I've had cases where for one reason or

another, the state of Ohio, the prosecutor's office, just forgets about

it, loses it, sticks it in the file drawer.

Maybe there's been a regime change in election, who knows?

But the case didn't get indicted for years.

And then whoever is looking through old file says, look at this case.

We forgot all about this one.

We better get that indicted.

So then they go to the grand jury, and they indict it eight years later,

and the defendant, who thought he had made it, that he was free and clear, maybe he's

vacationing down in Texas or something, or maybe even Mexico.

He gets word that, wait a minute, you've been indicted.

And he says, well, hold on.

That case was dismissed or never got charged eight years ago.

Now he's charged.

Well, pre indictment delay is a due process problem, and we have to look at it

from due process, which is really to assess how much prejudice.

In other words, how was the defendant harmed by the delay.

Well, how do you do that?

Here's what I would look at.

Are there witnesses that were essential to

the case that are no longer around people have died?

Is there evidence that was essential to

the case that has now been destroyed for one reason or another?

What other facts and factors can I point

to that would say if this thing would have been charged in a timely manner, say after

six months, I would have been able to defend it this way.

But because of the delay, I have lost my ability to defend it,

and therefore, that violates my due process rights to defend myself at trial.

That is pre indictment delay.

Now let's talk about after indictment.

Generally speaking, speedy trial rights.

The statutory rights will sort of track

with the constitutional six Amendment speedy trial rights.

But if we're going to raise it, if I ever

raised a speedy trial issue, I would say it violates Ohio and

constitutional statutory and Ohio constitutional speedy trial rights

and the United States constitutional speedy trial rights set forth in the 6th

Amendment that apply for your constitutional scholars to the state of

Ohio and other States through the 14th Amendment.

Again, I'm not going to go into the weeds on that, but I'll simplify it this way.

6th Amendment applies to Ohio, and they got to give you a speedy trial.

It's generally protected by the high revised code statutory provisions.

But as we said, the statutory provisions can be delayed for all sorts of reasons.

So I warned you at the beginning this would get complicated.

But generally speaking, for Steve's

question and the purposes of his question, the case is in no man's land.

It is in no longer speedy trial land.

It is in pre indictment delay land.

And there may come a time where they wait too long.

There may come a time where the state just doesn't get it done and

they don't investigate and they don't get their evidence back.

And it's just been years and the defendant is prejudiced by it.

So when he is eventually indicted, he can make a claim or it may be that in two or

three months they get the lab reports back, whatever it is they wanted, and they

indicted because they got the right evidence and then they can prove it.

So why would they delay and not just why is it no build in this case particularly?

I'm going to speculate. I hate to speculate, but I'm going to do

it right here on the show, and you're hearing it first from Lawyer Talk.

Q and A. I am speculating that they know the

prosecutor that knows that it's going to take a while to get certain evidence back.

And in this case, I think it involves some

sort of chat or improper pictures and images sent to a minor, horrible case, one

of these sex cases where somebody's soliciting underage girls.

But I think what's going to happen is that they need some sort of lab work.

They need maybe the forensic assessment of

storage media that they seized in connection with the case.

By that, I mean, they probably had a search warrant, went into the defendant's

house, took a bunch of hard drives, computers, et cetera.

Maybe they took routers WiFi stuff to check IP addresses.

Whatever they're doing scientifically, they send that off to a lab.

Sometimes it's most of the time, frankly,

it's the State of Ohio's lab over at BCI and I Bureau of Criminal Investigations

and Identification and Investigation in London, Ohio, if you're curious.

But anyway, they send it over there and

their pros go at it, and they come up with whatever results that they have that we

follow this image with this IP address and this meta tag or metadata on it, and it

went through the defendant's IP address, so we know it's him, et cetera.

That takes time. And there's lots of cases before it, and

they got to get through those because they got their own issues.

And then once they get that back, they'll go back and present it to the grand jury.

Now, if they were forced if the state were

forced immediately to go forward, it would not be fair to the state.

And I don't say this often because I hate the government.

Everybody knows, and I hate it in a very healthy way, I would say.

But here you can't expect the government to prosecute cases without giving them

time or giving it time to develop the evidence it needs.

And so you can't just start running speedy trial before

they have lab results back because they need a reasonable opportunity to get

the case tried or get the case developed and investigated and tried.

So what they've done is they've told time.

And now that doesn't mean that it won't

start right back up once the case is indicted.

It will.

It doesn't mean that they're not subject

to pre indictment, rather delays like we

talked about under due process of the 14th Amendment.

But it does mean that they've got a

reasonable opportunity here to get their evidence together to develop the case.

Now let's talk about one more thing, and then I'll lay this to rest.

I've exceeded my ten minutes.

I'm pushing 20, but I'm going to keep going anyway.

I have a client who asked me recently,

well, if we go forward here, I want my speedy trial.

I want to get this to court right away.

Well, this is a complicated case.

I'm not going into details, but there are like I'll need like five experts.

I'll need an investigation.

I have to cross examine fact witnesses, state expert witnesses.

I have to do my own investigative work up in order to do all of this.

I've got charts, diagrams, sort of like

the old Rodney Dangerfield throwing some charts and diagrams, making an A.

I need to do all that in this case.

And it's going to take time.

And at the same time, your attorney, at least yours truly here is busy.

We have other cases also in the pipeline,

and we have to work on those at the same time.

So in this case, my client is not in jail.

In other words, he's not sitting there in

jail suffering while I delay and do my work up.

And frankly, even if you were, I would say, look, man, if you want a complete,

thorough, prepared trial, we just have to have more time.

I'm working on schedules of experts,

national experts who also have their own lineup of cases they're working on.

So you can't just expect a national expert to come to Columbus, Ohio, within 90 days

and be able to prepare a report, assess everything and offer testimony.

They're busy, too.

So sometimes we just don't have any choice on the defense side but to go forward

or go ahead and continue the case and prep it up.

There are times, however, where

schedule be damned, we're going to search speedy trial.

And I do that in situations where I think it will benefit the defense.

So say, for instance, I think that

the state will have problems getting the evidence together, or I know they've got a

witness problem, or I know that for some other reason, the delay will

benefit the defense and hurt the government's ability to prosecute it.

And you could say that's gamesmanship.

And I would say, well, so be it.

It's gamesmanship based on that pesky document that we wrote in 1787 and then

ratified in 1789, the US Constitution's, 6th Amendment.

I think the Bill of Rights actually came later.

But anyway, the idea is we've got rights and we've got precious few rights.

And I'm going to rely on those and assert

them when I can and when it helps the defense and when it doesn't help us.

And in fact, when it hurts us, I'm going to waive some of those rights.

And one of them would be speedy trial.

And that can toggle both ways, depending

on the facts and circumstances of the case I defend.

Well, with that, I have broached the 20 minutes Mark.

So I'm going to wrap it up, this lawyer talk Q A and A.

And that means that we are taking questions and I am providing answers.

You get it. See the Q and N, the A.

It's funny how we did that. And what does that mean?

That means if you've got a question and

you know that you've listened to me on the blitz for years and years and years and

you haven't been able to get through, now you've got a forum to do it.

Go to lawyeralkpodcast.com just like Steve did today and submit your question.

And I will get to it.

I can't promise I'm going to get to it right away.

Trust me, I will.

But I'll do my best and we'll get it answered right here.

That doesn't mean we've stopped the long form round table discussions.

They're more vibrant than ever with Norm and Brett Jared's on the mend and been

back, at least for one since his accident and expect him back soon for a lot more.

And those are the longer form.

Maybe politically charged, maybe funny, maybe serious, maybe in the middle.

Who knows? But those are fun discussions.

Please check those out, too.

I've been calling at the roundtable and we will continue with that.

And then finally I do the legal breakdown series.

I know the written house breakdowns I did have are still getting great.

People are still downloading those left and right.

So I've got more coming on that.

So again, thanks for listening this lawyer talk Q.

A and off the record on the air at least until now.