Defendant Suffers Ennui, 8th Circuit Unimpressed – Update for October 20, 2016

We’re still doing a weekly newsletter… we’re just posting pieces of it every day.  The news is fresher this way…


ennui161021There’s nothing quite like ennui. Just ask Mike Walker.

On January 21, 2014, Mike was charged in with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. Secs. 922(g) and 924(e). He saw the judge for the first time three days later. His lawyer filed the usual motions, including a motion to suppress evidence obtained during a traffic stop. In June, the suppression motion was denied after an evidentiary hearing. Two weeks after the denial of the suppression motion, the government filed its motions in limine in anticipation of the then-scheduled June 30 trial date.

Then things started going sideways. Mike’s lawyer moved for a competency evaluation for his client, and then moved to withdraw as counsel. The district court granted the motions, directed the Attorney General to conduct an evaluation, and ordered that the report be returned “within 30 days or as soon as possible.” But, with usual Marshal Service efficiency, Mike was not transported to the Metropolitan Correctional Center (MCC) in Chicago, Illinois, for his evaluation until late August. On September 16, the district court granted MCC’s request for an extension to complete the evaluation, and ordered the report be filed by October 31. The court got the report via email on November 14, and, approximately 10 days later, conducted a competency hearing. On December 1, the court entered an order, finding that Mike was competent.

Mike’s new lawyer moved to dismiss the case, contending that the delay occasioned by the competency proceedings violated his right to a speedy trial under both the Speedy Trial Act, 18 U.S.C. Sec. 3161(c)(1) (“STA”), and the 6th Amendment. The district court denied the motions. Mike went to trial on January 5, 2015, and lost, getting a 20-year sentence.

This week, the 8th Circuit upheld the conviction. The decision that the STA was not violated is unremarkable, but the Court’s analysis of the 6th Amendment claim is worth considering.

bored161021The 6th Amendment guarantees a criminal defendant the right to a speedy trial, completely apart from the STA. To determine whether there has been a 6th Amendment violation, courts consider a test first adopted by the Supreme Court in Barker v. Wingo: (1) the length of delay; (2) the reason for the delay;(3) defendant’s assertion of his right; and (4) prejudice. If a defendant makes an initial showing of delay, the court will consider the extent to which the delay stretches beyond the “bare minimum” needed to trigger judicial examination. No one knows for sure what the “bare minimum” is, but some courts have suggested “a delay approaching a year.”

The 8th said delay of 11-1/2 months between Mike’s indictment and his trial “meets the threshold, but barely.” The Court found Mike was “responsible for most of the delay, which was occasioned by his motions to suppress evidence, for a competency evaluation, and to dismiss.” The Court found no evidence the government intentionally caused delay in order to gain a tactical advantage. As to the third factor, Mike did assert his speedy-trial right promptly, filing the claim on November 17, three days after MCC returned its report regarding his competency.

ennuifree161021If defendants (and inmates filing post-conviction motions) fall down on anything, it’s proving they were prejudiced (hurt) by the conduct about which they’re complaining. Prejudice usually is the sine qua non of winning a motion. It certainly was here, and Mike dropped the ball. As to the “prejudice” factor, the best Mike could was to assert that he was prejudiced by the delay due to the “ennui of waiting.” He did not argue that his defense was impaired by the delay. The Court said that Mike’s “’ennui,’ without more, is insufficient to demonstrate prejudice. “

Prejudice means prejudice. It means that the bad stuff that happened hurt you somehow. In a 6th Amendment speedy trial sense, the delay had to somehow hurt your ability to defend yourself – witnesses disappearing, physical evidence deteriorating, memories fading… that kind of thing. No doubt jail is mind-numbingly boring, but that – without more – is a sad fact of life, not Barker v. Wingo prejudice.

United States v, Walker, Case No. 15-2921 (8th Circuit, Oct. 18, 2016)


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