Author Topic: A question for Bosk or anyone else familiar with the law...  (Read 1241 times)

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Offline PowerSlave

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A question for Bosk or anyone else familiar with the law...
« on: December 08, 2012, 06:30:43 PM »
https://www.statesman.com/news/news/crime-law/murder-charges-dismissed-against-man-who-spent-mor/nTQDP/

Out of curiosity, when does the 6th amendment kick in on something like this? Shouldn't there be a limited amount of time that someone can be held like this? I know that a lot of this went out the window with the patriot act, but it seems that something like this is bordering on a clear violation of someone's civil rights.
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Offline antigoon

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Re: A question for Bosk or anyone else familiar with the law...
« Reply #1 on: December 09, 2012, 03:28:24 PM »
I don't know much about the 6th Amendment yet, but I think a lot of states have unique speedy trial statutes. I just did some quick research, though. in Barker v. Wingo, a SCOTUS case from 1974, the court basically said that each case should be considered on an ad-hoc basis and laid out some factors for courts consider:

1. length of delay
2. the government's reason for the delay
3. defendant's responsibility to assert his right to a speedy trial
4. prejudice to defendant

Quote
A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

3018 The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar *531  circumstances of the case.31 To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.

192021 Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.32 A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

22 We have already discussed the third factor, the defendant's responsibility to assert his right. Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining **2193   *532  whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.33 Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.

We have discussed previously the societal disadvantages of lengthy pretrial incarceration, but obviously the disadvantages for the accused who cannot obtain his release are even more serious. The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs.34 The time spent in  *533 jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense.35 Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent. Finally, even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility. See cases cited in n. 33, supra.23

We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.36 But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution.

Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2192-93, 33 L. Ed. 2d 101 (1972)


My guess is that, for murder charges, they can keep you locked up for a real long time due to the severity of the accusation.

Offline kirksnosehair

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Re: A question for Bosk or anyone else familiar with the law...
« Reply #2 on: December 10, 2012, 06:38:45 AM »
https://www.statesman.com/news/news/crime-law/murder-charges-dismissed-against-man-who-spent-mor/nTQDP/

Out of curiosity, when does the 6th amendment kick in on something like this? Shouldn't there be a limited amount of time that someone can be held like this? I know that a lot of this went out the window with the patriot act, but it seems that something like this is bordering on a clear violation of someone's civil rights.


I'm not an expert, but I do have some, er, experience...with being detained.  My experience came a couple of decades prior to the patriot act, too.  Basically, I was "detained" with bail set too high for me to meet, for a little over 18 months before I finally plead guilty and got a sentence.  Again, it was a long time ago, in a different life, pretty much.  But I do remember back then that there were several others in a similar situation with me who had been detained for various felonies and had bail set (so, theoretically they could get out if they could raise the bail needed) and some of those dudes had been locked up for as long as 2 and half years. 


There are "speedy trial" laws, certainly, but there are all kinds of ways around them as well.

Offline PowerSlave

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Re: A question for Bosk or anyone else familiar with the law...
« Reply #3 on: December 10, 2012, 07:08:56 AM »
https://www.statesman.com/news/news/crime-law/murder-charges-dismissed-against-man-who-spent-mor/nTQDP/

Out of curiosity, when does the 6th amendment kick in on something like this? Shouldn't there be a limited amount of time that someone can be held like this? I know that a lot of this went out the window with the patriot act, but it seems that something like this is bordering on a clear violation of someone's civil rights.


I'm not an expert, but I do have some, er, experience...with being detained.  My experience came a couple of decades prior to the patriot act, too.  Basically, I was "detained" with bail set too high for me to meet, for a little over 18 months before I finally plead guilty and got a sentence.  Again, it was a long time ago, in a different life, pretty much.  But I do remember back then that there were several others in a similar situation with me who had been detained for various felonies and had bail set (so, theoretically they could get out if they could raise the bail needed) and some of those dudes had been locked up for as long as 2 and half years. 


There are "speedy trial" laws, certainly, but there are all kinds of ways around them as well.

I've been in a couple of times in my wild and crazy youth, but it was for very minor offences and the process went fairly quick. I'm not sure what you did, but that seems to be an extreme amount of time to be held without trial under any circumstances. Granted, you'll get credit for time served, but what if you were innocent or eventually found innocent in a trial? That's a helluva lot of time of someone's life that is lost and the impact that that amount of time would have on every aspect of someone's life could be ruinous.
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Offline kirksnosehair

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Re: A question for Bosk or anyone else familiar with the law...
« Reply #4 on: December 10, 2012, 08:04:19 AM »
Well, in my case I wasn't innocent.  And frankly, in most cases where the bail is extremely high and the pre-trial legal maneuvering stretches out over many months, the accused is almost always guilty.   It's certainly not a perfect system, though, and mistakes are made.   It's one reason why I make a donation each year to Barry Scheck's Innocence Project.


What typically happens when an innocent person is held for a long time is (depending on state law in the state they are held in) they receive some kind of compensation on a per-day basis.  In my state (MA) I think it's something like $80 per day.




Offline PowerSlave

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Re: A question for Bosk or anyone else familiar with the law...
« Reply #5 on: January 04, 2013, 12:53:44 AM »
I realize that this thread didn't gather much interest before, but I just seen this story and thought that it might be of interest.


https://news.yahoo.com/inmate-ordered-retried-80-waiting-ever-since-192257674.html

All of this has happened before and all of this will happen again