Why Criminal Defendants Get a Raw Deal...

Those who complain about defendant's constant appeals and delaying tactics seem utterly unaware of just how rarely any of those appeals yield a fruitful result. They also tend to forget about prosecutorial delay. Most of this is an informational distortion. Even though a miniscule number of the criminal cases appealed are ever reversed, pretty much every time one actually is, we read about it.

While crazily pro-prosection decisions rarely make the papers, when they do they provide a nice window into just how militantly anti-defendant most judges are. Here's a nice example:


The Wyoming Supremes

On Nov. 23, 1977, Jack Humphrey died of a single bullet wound to the head.

On April 11, 1980, two years and four months later, a grand jury in the District Court of Natrona County, Wyo., indicted his wife, Rita Ann, for murder in the first degree. Asserting her innocence, she moved immediately for a preliminary hearing. In a separate motion, she demanded a speedy trial.

On Aug. 22, 1980, after the state failed to establish probable cause, the District Court issued an order dismissing the indictment.

On March 5, 2004 , the state suddenly revived the murder charge against her. Roughly 24 years had passed since the original indictment. She again moved to dismiss as a violation of her constitutional right to a speedy trial.

The District Court granted her motion. Judge W. Thomas Sullins noted that during this period, the county sheriff's two investigators had died. Two key witnesses for the defense also had died. The fatal weapon, a .243 Winchester rifle, had disappeared. The victim's watch, thought to be important evidence, was no longer available. Over the years, various audiotapes, transcripts, records and polygraph examinations also had vanished. In a "non-inclusive" list, the judge counted 14 items of lost evidence -- enough to demonstrate that the delay had critically prejudiced the defendant's ability to prepare for trial.

Two months ago the Wyoming Supreme Court reversed. Chief Justice Michael Golden conceded that 24 years and eight months, by his count, had elapsed between the indictment in 1980 and the scheduled trial in 2005. Nevertheless, there had been a long hiatus when Mrs. Humphrey was not in custody and no indictment was actively pending against her. Those 24 years, in the court's view, had to be excluded from the calculation of the "speedy" trial required by the Constitution's Sixth Amendment.

This reasoning seems to be belied by the applicable supreme court precedent--the 1972 opinion in Barker v. Wingo . That case involved the bloody murder of an elderly couple in Christian County, Ky. in 1958.

Justice Lewis Powell spoke for a unanimous court, but he clearly had a hard time in establishing guidelines for appeals under the Sixth Amendment's "speedy" clause. Nothing good could be said of Willie Barker or his co-defendant, Silas Manning. The crime was exceptionally brutal, but the evidence was unusually weak. For tactical reasons the commonwealth wanted to try Manning first. If he were convicted, he could testify against Barker. It took six trials before Manning finally was convicted.

Meanwhile, Barker too was mostly out on bail. Over a period of five years his trial date had been continued 16 times. With Manning's testimony, Barker at last was tried, convicted and sentenced to life. He appealed under the "speedy trial" clause of the Sixth Amendment.

Powell, a soft-spoken Virginian, was tough on crime. His heart bled for victims, not for their assailants. He had little sympathy for Barker, but five years of delay? As a constitutional matter, he asked, how speedy a trial is a "speedy" trial? He waffled: "We cannot definitely say how long (a delay) is too long in a system whose justice is supposed to be swift but deliberate. ... It is impossible to do more than generalize about when those circumstances exist."

I think it's safe to say 24 years isn't "Speedy."