Habeas Review – Speedy Trial
Habeas relief denied on speedy trial challenge to 14-month delay between filing of complaint and scheduled start of trial, applying familar 4-part test of Barker v. Wingo, 407 U.S. 514 (1972). Although the first three aspects of the test work in West’s favor (length of, reason for, and assertion of right to, delay), his claim ultimately founders on the fourth part, actual prejudice:
Thus, this case boils down to the fourth question: whether the delay prejudiced West. Prejudice is the most important of the four Barker factors. Barker, 407 U.S. at 532. The Supreme Court has identified three relevant interests underlying prejudice: “(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.” Id. The third interest is the most significant because the fairness of the proceedings is undermined by an inadequately prepared criminal defendant. Id. The state court appears to have focused exclusively on the third interest, without discussing the first two. Our own review of the record reveals that the first two interests do not help West. He was incarcerated for a separate offense during the delay, which as a practical matter means that he cannot claim that he suffered oppressive pretrial incarceration. Even though West’s parole was revoked for the conduct underlying the offense, the revocation occurred in December 2004, before the time when he was charged with the crime at issue. As for anxiety and concern, West admitted that he was not aware of the charge until several months after the State filed the complaint. Undoubtedly he experienced some emotional stress during the remaining delay, but it carries less weight when compared to the most important factor: impairment of defense.
West argued, more particularly, that he was prejudiced by the death of an alibi witness. The state court conclusion that this potential witness wouldn’t have been deemed credible by the jury “(p)erhaps went too far.” Nonetheless, the death occurred only six months after the complaint was filed, well short of the “presumptively prejudicial” 12-month marker, in other words, at a time when West wouldn’t have a speedy-trial leg to stand on anyway. In addition, given the strength of the case against West, the court “cannot find that the state court’s conclusion on prejudice was unreasonable.”
As the court notes in an introductory comment: “Our evaluation of his request is structured by the highly deferential approach to the state court’s judgment that is required by 28 U.S.C. § 2254.” Given that the court suggests in one breath that the state court’s analysis of prejudice “went too far,” only to say in the next that it can’t find that analysis unreasonable, “highly deferential” seems if anything an understatement. One other point of possibly related interest. This was litigated in state court as a Rule 809.32, no-merit appeal, leading the habeas court to treat counsel‘s output as the state court’s for purposes of its review: “Looking back to the state court decisions, we note that the Wisconsin Court of Appeals adopted West’s appellate counsel’s analysis of his speedy trial violation as its own. We therefore will treat counsel’s report (‘no-merit report’) as the state court’s opinion.” Does this mean that it was counsel (not the state court of appeals) that characterized the alibi witness as unworthy of belief by a jury? Seemingly so, though to be sure the court isn’t explicit on this point. Implications? Hard to say, except that if you’re composing a no-merit report you may want to refrain from rhetorical flourishes that aren’t necessary to the task but that may work against the client’s interest. The “discussion requirement” in Rule 809.32 “appears to require that the attorney cite the principal cases and statutes and the facts in the record that support the conclusion that the appeal is meritless. The Rule also requires a brief statement of why these citations lead the attorney to believe the appeal lacks merit,” McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 441 (1988). See also St. ex rel. McCoy v. Appeals Ct., 137 Wis. 2d 90, 403 N.W.2d 449 (1987) (“We do not contemplate the discussion rule to require an attorney to engage in a protracted argument in favor of the conclusion reached; rather, we view the rule as an attempt to provide the court with ‘notice’ that there are facts on record or cases or statutes on point which would seem to compel a conclusion of no merit.”). In other words, it might be better to lead the court to its own conclusion, rather than forcefully spelling it out yourself.