Harvey v. State

87 ancing outright did not rejected that test and abandon This court 22. tion of Rule rejected the rule’s application of in favor of the earlier strict time and assertion particu- Id. at 172. present of Rule absolute deadline. limitations 204.

lar, said: this court majority of court If a this wants modi- approve disap- does not This court application straightforward fy a * * *. The court rules prove district balancing by making test Uniform Barker by22 Con- adoption of Rule the Judicial mandatory 204 District Court Rule guidelines obviously to was set ference sense, expressly it should constitutional dispo- encourage prompt and motivate including line cases overrule of Ca- criminal cases and avoid sition tón, say so. Oth- Robinson Cook respect violation with erwise, analysis court’s this ** *. requirements speedy trial [NJo justify to impliedly muddled cases been provided by dismissal sanction plurality opinion in seems to be a what provide To so would have caused rule. Phillips Harvey. jurisprudence Sound 45(b), Rule inconsistent with it to be clearly control- requires that we enunciate by defining “unnecessary,” W.R.Cr.P. majority opinions of ling law. Previous decided must be this court has posi- conflict a newer this court which on a basis follow- determined case-to-case than over- tion should be overruled rather set the tests out ing standards and Witkin, Ap- B. Manual On whelmed. See accordingly adoption Its was Estrada. (1977) pellate Opinions 101 at 195 Court fixing an absolute § admirable but the 22(d), Court, Superior Rules (referencing v. deadline Rule Bennett Uniform (1933) District Courts the State 950 21 P.2d 218 Cal. with, super- Wyoming was in J., I (Zangdon, specially concurring)). sus- conflict by Estrada. seded and pect expressly overrule that the votes modified added). Catón, and Cook this case (emphasis 171-72 Id. at Robinson simply do not exist. Robinson, this court A few after months in- claim another considered therefore, concur, specially I State, 22 in v. 631 P.2d voking Rule Cook opinion portion of this be- “speedy trial” (Wyo.1981). the criminal In that cause, and often- the well-established under provided that Rule contended defendant balancing is the test which law applied mandatory for a guidance the exclusive speedy trial violation jurisdiction, no argu- Rejecting speedy-trial action. occurred. ment, rejected again expressly court 22’s time limi- application of Rule the strict balancing test

tations and embraced 10. Id. at

from Barker. faithfully apply This court continued State, v. balancing Sodergren test State, Binger v. (Wyo.1986); 715 P.2d 170 HARVEY, Jetty Appellant Lee State, v. (Wyo.1986); 712 P.2d 349 Caton (Defendant), Tageant v. (Wyo.1985); 709 P.2d v. State, (Wyo.1984); Grable v. P.2d State, (Wyo.1982); Heinrich P.2d Wyoming, The STATE State, (Wyo.1981). P.2d (Plaintiff). Appellee majori unexplainably, the Curiously and No. 87-274. the two most opinion says nothing about ty Wyoming. Supreme Court by this court which recent cases decided I balancing applied. refer to test 5,May 1989. State, (Wyo.1989) Harvey 774 P.2d 87 Rehearing June Denied (Wyo. Phillips v.

1989). Although most recent these two balancing two test drew

applications

dissents, applied the least the court bal- Weerts, E.

Steven Sr. Asst. Public De- fender, for appellant. Gen.,

Joseph Meyer, Atty. B. John W. Renneisen, Gen., Deputy Atty. Karen A. Gen., Byrne, Hugh Kenny, Attys. Asst. for appellee. CARDINE, C.J.,

Before and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

MACY, Justice. Harvey Appellant Jetty appeals Lee kidnapping his convictions of and first-de- gree Although appellant sexual assault.1 presents several issues for our considera- tion, dispositive the fundamental and issue companion in in this as case State, (Wyo.1989), Phillips v. P.2d whether, under circumstances years case, delay one and one-half of over complaint filing of the criminal between subsequent appel- and trial violated constitutionally guaranteed lant’s We reverse. State, (Wyo. P.2d 870 Stuebgen v.

1976), felony drug two this Court reversed the informations convictions and dismissed delay, largely there at where had been court, to the State and the tributable the defen eighteen months between years trial. Three arrests and their dants’ later, in Cherniwchan v. although declined (Wyo.1979), we felony convic

to dismiss the defendants’ grounds, issued a on we tions admonishing warning stem throughout enforcement officials law happen must not Wyoming that they be again, persons and all —whether given prisoners or whomsoever—will rights, speedy-trial fail- their Rule-5 and crime, principal Appellant charged alternatively and the verdict indi- on both from the was principal appellant principal or an aider and crimes as either a abettor. as a cates was convicted 6-l-201(b) (1977) pro- Wyo.Stat. sentence, § judgment and how- both crimes. The ever, i.e., fact, accessory vides an an before appellant was convicted alterna- indicates tried, abettor, charged, may aider and con- tively principal or aider as either a and victed, punished principal. as were a if he discrepancy is crime. This abettor to each aiding Although jury was as to instructed issue, however, and it imma- not raised as an abetting, provided the verdict form disposition our terial to in case. aiding abetting jury distinguish did authority of ing supervisory violence, tim from which further at least brought play into this court will be form of further sexual assault. negligent conduct. such address January 9, 1986, complaint On a criminal though reviewed a number Even have we was filed County Court, in Sweetwater of cases since Chemiwchan which a charging appellant kidnapping alleged, speedy trial violation been degree sexual assault the first or aiding cases, not, in these encountered a abetting Appellant those crimes. necessitating clear violation reversal and counsel, appointed preliminary and a perhaps inevitable, dismissal. It was how- hearing January was held on ever, eventually this Court would appellant was bound over to the dis- awith case confronted wherein the result trict court. warning and the Stuebgen Cher- 5,1986, February On an information was would not have been niwchan heeded. charging filed in district appellant court This that case. identically county complaint. with the court The crimes involved this case are seri arraignment An February was also held on Phillips (whose ap Appellant, Everett ous. 5, appellant plea which time entered a of peal comprises companion of the case Phil guilty, not and his bond was continued. At 118), lips, 774 P.2d and David Swazo were arraignment, the district court advised January arrested in 1986 in connection with appellant that, pleaded if he guilty, not he January rape and abduction jury entitled to days. a trial within 120 Springs Although a Rock woman. at trial 18, 1986, February On appellant filed a and defendants discovery motion for and a motion to dis- presented conflicting signif versions miss. The events, record does not jury icant was entitled to indicate wheth- accept presented by the evidence er the district court ever on did ruled these briefly which is summarized as fol motions. lows. point At this totally the record becomes The appel- State’s evidence indicated that any proceedings silent as to further for a lant, Phillips, and Swazo abducted the vic- period nearly ten months. The next Springs tim from a Rock street on the entry in the record occurs on December evening 5,1986, January her into forced from when a letter the court to coun- Phillips’ pickup, away. crew cab and drove parties notifying sel was filed that the Thereafter, proceeded as the to vehicle court had appellant’s consolidated case city, drive to the outskirts of the Swazo co-defendants, with that of his Phillips and sexually assaulted the victim in the back Swazo, and January that trial was set for seat, encouragement appellant with 9, 1986, 1987. On December the State Phillips. Phillips pickup to drove obtained continuance of the trial. This parked, an isolated trailer court and indi- is not appeal, fact reflected the record on cating he join intended to in and con- any as there is no record of motion for a tinue the assault. Unbeknownst to the continuance, granting any order con- men, however, the had abduction been wit- tinuance, any or of appellant indication that nessed an nearby individual in a vehicle. any prior had opportunity notice and to pickup This witness followed the object to this continuance. The fact that trailer court entrance and then contacted continuance, the State obtained this how- police law enforcement authorities. The ever, acknowledged by the State in its quickly responded intercepted Phillips’ brief, accept and we therefore it con- as a pickup leaving vicinity, as was point. ceded Absent the State’s concession having police. men police seen the The matter, on this we would be without appellant rescued the victim and arrested explanation why trial was not held on spot. on Phillips Swazo was ar- 6, 1987, January as scheduled. investigation. rested later further po- The State’s evidence The record on indicated that the next reflects that Decem- very lice likely intervention saved the appellant’s private vic- ber retained Appellant’s began appearance. July Cor- trial on entry of made an counsel 22, 1987, conference, appel- pretrial January on In a the dis- respondingly, chambers appointed appellant’s counsel submitted mo- lant’s trict denied court trial counsel, which was to withdraw as jury, three-day tion motion. The after on that same date. granted by the court appellant guilty charges. found on both Appellant was sentenced to not less than lapse in the January In another thirty years in twenty years nor more than 16,1987, appel- January occurs. On record Penitentiary on Wyoming State each counsel submitted lant’s retained count, concurrently. the sentences run for lack court a motion dismiss district This appeal followed. speedy trial. This motion was of a unknown, filed, for remain but reasons that trial is found and in again the has conceded brief State Wyoming4 both the United States3 and the argument that the motion was sub- oral Wyoming, additional Constitutions. April mitted on that date. On protections provided by are desig- appellant counsel for filed what was 45(b)5 Rule 204 of the Uni- W.R.Cr.P. dismiss, duplicate motion as a nated form Rules for the District Courts of the viola- again basis of a Wyoming. specific time con- tion, stat- accompanying certificate exceptions straints of Rule and the January 16 motion had been ing that the thereto, will be discussed connec- infra alone, Standing we would submitted. length delay analysis. tion with the accept representation counsel Court, Supreme The in United States speedy trial absent the earlier motion 213, Carolina, Klopfer 386 v. North U.S. support, record in consideration but 988, (1967), 18 1 87 L.Ed.2d held that S.Ct. made, in concession fact was State’s that right speedy to a the Sixth Amendment having appellant made we will credit through to states the Four applies trial the right.2 his earlier assertion of the Cherniwchan, teenth Amendment. In 594 4, 1987, February the district court On 467, quoted following pas P.2d at we the investigation, indi- presentence ordered a 223, sage at 87 Klopfer, from 386 U.S. investigation cating in order the the that S.Ct. 993: at requested by parties. The had been both right that to a hold here the “We 2, appellant’s July of record next event any fundamental as of speedy trial is as disqualify to district motion the rights Amend- the secured the Sixth promptly denied. This motion was judge. right That has its roots at the ment. ordered, 13,1987, July the court On district English heri- very foundation of our law application appellant, the pursuant of tage. in modern Its first articulation subpoena be issued for Swazo to appears to been made jurisprudence Swazo, upon testify trial. appear and at (1215), Magna wherein it was Carta plea, previously sentenced guilty had been man, written, sell to no will ‘We will Penitentiary. On Wyoming to the deny man either defer adopted joined July appellant right’; justice or ...” IN SUP- in the OF DEFENDANT “BRIEF Court, in traced the Klopfer, The OF MOTION TO DISMISS FOR PORT right speedy the to a trial from evolution of TRIAL” filed LACK OF SPEEDY Magna through Sir co-defendant, origin Carta Phillips. Similarly, Wyoming January Although acknowledging 4. article section 10 16 2. motion, argument speedy counsel states: trial at oral Constitution appellee characterized both that motion and prosecutions the criminal accused In all * * * April being "pro motion forma.” right speedy trial ***. have the shall Amendment to the United States The Sixth provides pertinent part: that, Constitution 45(b) part provides in relevant 5. W.R.Cr.P. unnecessary delay bringing a “if prosecutions, there In the accused . all criminal may dismiss the public the court right speedy defendant indictment, enjoy the to a shall * * complaint." information trial *. 92 The (Wyo.1986); Edward Coke’s Second State, Part Grable v. 649 P.2d 663 England Laws (Wyo.1982); Institutes State, v. Robinson 627 P.2d George rights colony Mason’s bill for the (Wyo.1981); 168 and Phillips State, v. 597 Virginia prominent and thereafter to its (Wyo.1979). P.2d 456 The balancing test position in Sixth Amendment requires (1) length that we look at: United States Constitution. 386 U.S. at delay; (2) delay; (3) reason for the 223-26, at 87 S.Ct. 993-95. See also Unit right; defendant’s assertion of his Provoo, (D.Md.), 17 ed v. F.R.D. 183 States (4) the prejudice to Barker, the defendant. U.S. S.Ct. 100 L.Ed. aff'd 2182; 407 U.S. State, S.Ct. Caton (1955)(influence aspects 1260, 1264 709 P.2d (Wyo.1985); Estrada v. Corpus of British Act Bill Habeas State, (Wyo.1980). These Rights); Coleman, and Poulos and four together factors must be considered Trial, Speedy Implementation: Slow balanced relation all relevant cir

ABA Standards in Search a State Arizona, cumstances. Moore v. 414 U.S. house, Hastings (1976)(tracing L.J. 357 S.Ct. 38 L.Ed.2d 183 right Magna Carta to Sixth Heinrich v. 641 (Wyo.1981). P.2d Amendment). Thus, Supreme Court, Klopfer, at U.S. S.Ct. at LENGTH OF DELAY right

concluded to a rights “is one of the most preserved basic precise is not length There of de by our Constitution.” lay automatically constitutes a viola Florida, Dickey 30, 37-38, In right tion of the Caton, to a 1564, 1568-1569, 26 L.Ed.2d 26 1264; Phillips, 709 P.2d at 597 P.2d 456. Burger, speaking Chief Justice Phillips, 460, however, id. we noted Court, said: that, trial is not a when the protracted is so toas theoretical or abstract but one root- presumptively prejudicial, trigger- it is a reality ed hard in the need to have ing mechanism, requires “inquiry charges promptly exposed. If the case into the go other factors that into the for the on calls the accused Wingo, balance.” Barker supra, v. 92 charges to meet rather than rest on the S.Ct. at 2192. prosecution’s case, infirmities of the as is Barker, 523, In 407 U.S. at 92 S.Ct. right, the defendant’s the time to meet 2188, Supreme that, the Court stated al them is when the is case fresh. Stale though the require constitution does not claims never have been favored the quantified the trial into law, and less far so in criminal cases. specific months, a days number of or the Although great many a persons accused states are free establish a reasonable put seek to long off the confrontation as period in accordance with constitutional possible, prompt inquiry the standards. Tay See also United States v. charges into criminal is fundamental and —lor, U.S. -, 2413, 108 S.Ct. 2421 n. duty the charging authority the is to 12, (1988) (Barker 101 L.Ed.2d 297 provide did not prompt specify period, leaving a time kind of (Footnote omitted.) legislative rule-making activity or to others State, In Cosco (Wyo.1972), v. 503 P.2d 1403 so). position in better to do 971, rt. denied 411 U.S. 93 S.Ct. ce have mandatory Some states set time 2164, (1973), 36 L.Ed.2d 693 this Court bringing limits for a defendant to re trial adopted balancing evaluating for test quiring dismissal when the statute or rule challenges trial enunciated violated, has been with exclusions and ex United States in Court Barker v. 514, provided tensions for Wingo, delays, 407 U.S. 92 certain such S.Ct. 33 (1972). L.Ed.2d 101 We as those caused applied have the defendant or neces Cosco, test line of by competency proceedings, cases since sitated et cet including State, Sodergren See, Jones, v. 715 170 e.g., P.2d era. 111 v. Wash.2d

93 Gonzalez, v. (11th 671 441 States (1988) proce- F.2d (applying 1183 sixty Cir.), denied days within 102 cert. requiring trial dural rule S.Ct. State, 706 v. Miller P.2d United arraignment); 1291 73 L.Ed.2d (Alaska App.1985) (reversing and dis- DiFrancesco, 336 (2d 604 769 States F.2d charges of Alaska missing upon violation granted cert. Cir.1979), 444 U.S. 100 requiring days trial within 120 45 R.Crim.P. rev’d on other 62 L.Ed.2d S.Ct. Bell, arrest); People 669 P.2d 1381 grounds 66 U.S. (Colo.1983) (affirming trial court’s dismis- L.Ed.2d charges where the defen- sal of criminal brought Wyoming, trial within six Rule (formerly dant was entry guilty plea 22) of not ac- months for Rule of the Uniform Rules 18-1-405(1) of the Colora- cordance with Wyoming § District Courts of the State of (1973 Repl. and 1978 do Revised Statutes days filing fixes a deadline of after 8)). Vol. bring for of the information or indictment ing delays with certain defendant to Congress has Similarly, enacted computation.6 from the time excluded We 1974, 18 U.S.C. Speedy Trial Act of held, however, have that Rule 204 is not an that a 3161-3174 which decrees §§ mandatory exclusive or test but rather that must defendant federal courts nature, advisory is and it another days of informa- seventy tried within balancing factor to be considered exceptions indictment, again tion or Caton, 1260; test from Barker. P.2d specified delays, charges will 3162(a)(2) of the Act Cook v. Rob (Wyo.1981); P.2d 5 Section dismissed. inson, that, considering P.2d 168. provides whether the preju- dismissal should be with without provides Rule 204 a convenient dice, consider the serious- the court shall starting point logical analysis for the offense, circum- ness of the the facts and length delay in instant case. led the dismis- stances of the case that 204(b), measuring period Under Rule sal, reprosecution. impact and the of a purposes commences at however, courts, recognized federal filing information or indictm date of that, compliance with the while review of Here, was filed on ent.7 the information statutory interpretation, Act a matter began February Appellant’s trial 1986. into a constitutional inquiry whether days the infor July after violation has occurred contin- requires Rule Barker. United guided by mation was filed. ues to be (2) prosecuting attorney provides: On motion of the Rule or the court if: (a) responsibility of court and It consents; (i) expressly or The defendant charged person insure each counsel to (ii) unavailable and The state’s evidence is crime a trial. diligence; prosecution due (b) brought has exercised charge the shall be A criminal days following filing or trial within (iii) Required in the due administration or indictment. information (c) following periods justice be excluded be substan- shall and the defendant will not The computing for tially prejudiced. the time trial: (1) proceedings (e) receiving possible delay to the mental Upon All related notice of deficiency writing defendant. illness or show how the the defendant shall (2) Proceedings charge. on another delay may prejudice his defense. pursuant (3) Delay granted by (f) the court for If the defendant unavailable (d). proceeding presence required, Section at (4) and the begin upon time between dismissal period defen- shall anew the time charge. refiling being of the same available. dant’s (5) change Delay defendant’s occasioned indictment is of the information or application 7. The date therefor. counsel starting controlling may under consti- (d) granted as not the date fol- Continuances analysis United States trial. tutional lows: Marion, 30 L.Ed.2d (1) supported by 92 S.Ct. U.S. defendant On motion of body opinion, See discussion coun- affidavit of defendant defendant’s sel. infra. days filing trial be held within 120 after the Unquestionably, delays attributable to a Although may Rule defendant information. 204 de disentitle him speedy tri Phillips, safeguards. al 461; periods lineates 597 P.2d certain are to be ex Cherniwchan, 594 P.2d count, at 468. Rule 204 cluded from the the record in this embraces this principle provisions in its any delays case does not reflect properly excluding periods certain 120-day under the excludable rule. See the discus count. Periods excluded from the Rule 204 regarding the delay, sion reason for the computation include proceedings regarding Thus, though even we consider infra. condition, defendant’s proceed mental advisory i.e., Rule 204 to only, a touch ings on charges, other delay resulting from analysis, stone for delay in this case of change defendant’s appli counsel or days, which is in excess of four times therefor, cation delay for continuances greater period than prescribed by granted defendant, to the delay rule, is more trigger than sufficient to fur granted continuances to the analysis ther into the other factors. See when the expressly defendant consents or Caton, Barker, 1265; 709 P.2d at prosecution’s evidence is unavailable U.S. at Additionally, S.Ct. at 2192. despite the diligence exercise of due under analysis, required when in the due administration of trial clock starts to run arrest or justice. 204(c) (d). Rule complaint when the is filed. United States The State appellant’s contends that Marion, 10, 1986, December change (the of counsel (1971); Caton, 1260; L.Ed.2d entry appearance is dated December Estrada, Appellant 611 P.2d 850. was ar 15) but was not filed until December is a 5, 1986, January rested on and the com delay factor appellant. attributable to It plaint Thus, January was filed on 1986. appear record, does not however, on the arrest, from the date of his days change that this any delay caused elapsed appellant before brought proceedings. Appellant request did not Although, said, pre we have no continuance of previously January set length delay cise will automatically con 6, 1987, trial date. The argues, violation, stitute a the exces though, appellant did object appalling delay sive and involved in this continuance obtained the State on De presumptively case is prejudicial and must cember thereby apparently imply weighed heavily appellant favor of ing appellant agreed to the continu Caton, balancing See analysis. test ance as a giving fortuitous event appel 1265; Phillips, 709 P.2d at 597 P.2d at lant’s new counsel additional time for trial preparation. earlier, As mentioned totally record is silent as to this continu ance, containing neither a request motion REASON FOR DELAY ing the continuance nor an granting order brief, in its concedes that the continuance. Were it not for the nothing there in the record justifying or acknowledgment State’s in briefing that it explaining even from the initi- continuance, obtained this our clue ation of the case until December occurred, that a continuance other than period of approximately eleven months appellant’s effect, assertion to that would appellant’s from arrest and ten months have been the fact that trial was not held filing from the of the information. We 6, 1987, January as scheduled. No rea agree. argues, however, The State that son for the apparent. continuance is Sim delay encompassing the period the record, ilarly, on this we cannot assume December the to date of trial is appellant agreed that to a continuance or equally appellant attributable to both appellant even that any prior had notice prosecution. assertion, however, the This opportunity object Thus, to to it. record, is not borne out in the absent resort by continuance obtained the State does not speculation. to qualify for exclusion under Rule much, delay any, caused not determine if the this con- how the we attribute Correspond- solely to the State. delay tinuance is to the State’s attempt attributable delay connect the ingly, cannot occa- we testimony. Finally, to obtain Swazo’s re- continuance, inexplicable on sioned garding the docket as a crowded reason for change record, appellant’s of coun- the to in delay, there no the is evidence record to sel, delay find no to and we attributable support that contention. change. that We that none of the conclude cause attempts also justify The State to delay appellant. for the to can be attributed delay post-December upon the asser upon prove The burden the to State that appellant plea tions that involved delays bringing a defendant to trial are time, negotiations much of this that Estrada, necessary. reasonable and plea negotiating agreement a State was 854; Stuebgen, 875; P.2d at 548 P.2d at so that it could obtain his testi with Swazo 45(b). W.R.Cr.P. The State failed in mony against appellant, and that dock meeting its burden in this case. While it is initially et was We note that crowded. recognized innocent that neutral or unnec support any there no record of these essary delay weighed less should be heavi except purported justifications, for infer ly against than the State deliberate unnec ences, we observe that the and also essary delay, Caton, 709 P.2d at 1265; Es upon sought any never a continuance trada, 850; Barker, P.2d grounds. respect to plea nego these With recognized 92 S.Ct. it is also that involving appellant, the only tiations record delay such must nevertheless be con supporting this evidence assertion is the sidered, February requesting pre- government, order a because rather investigation and a defendant, sentence December than bears ultimate re counsel from the trial court letter to Es sponsibility circumstances. for such requesting parties regarding to confer trada, 854; Barker, 611 P.2d at U.S. at plea letter is bargain. a This found Here, we are at 2192. unable appel record to an affidavit of attached delay to determine was in fact whether counsel, formally lant’s filed as it was deliberate, although neutral as to opposed district Al the record court. any nothing in record indicates sinister though probably be in as would safe motive on behalf of the State. What we do negotiations suming plea took that some however, is simply find in this no place, speculation it sheer to at would be justification delay, reason or for the and we tribute, delay justify, much less say good made a cannot the State plea sup negotiations without record bring appellant faith effort trial as port. Similarly, respect any delay with Heinrich, See quickly possible. plea negotiations by the occasioned State’s Thus, for delay the reason P.2d at 644. testimony, with Swazo in return for appellant’s weighs substantially in factor support delay for such is in the record favor. fact convicted that Swazo was guilty plea prior appellant’s trial and the against fact for the State that he testified OF DEFENDANT’S ASSERTION plea appellant. point bargain At what HIS RIGHTS reached and how much Swazo was absolutely nec Although it is reaching agreement spent

time was assert his essary defendant simply be ascertained from cannot to an prerequisite ulti trial as a Barker, Court, record. The speedy trial that a viola mate conclusion 92 S.Ct. at stated U.S. at occurred, prop is a relevant tion has perhaps permissible for that some Estrada, 611 P.2d at factor to er consider. testimony to obtain 4; 854; Cherniwchan, at 469 n. 594 P.2d agree we that co-defendant. While with Barker, 531-32, 92 S.Ct. at 407 U.S. at principle, the record before us we can- on 96 case, appellant In the instant

2192-93.8 the notion that affirmative demonstra- 16, 1987, on January for dismissal of prejudice necessary prove moved tion was to a 27, 1987, again April joined in right denial of the constitutional to a speedy speedy Although his co-defendant’s trial brief before trial.” prejudice need not noteworthy shown, appellant’s trial. is that ini- It it be should considered as a right speedy balancing Grable, tial assertion his trial in factor in the test. 649 he January shortly Barker, 1987 occurred after re- P.2d at 671. In at 407 U.S. 92 private shortly Supreme tained after the counsel at S.Ct. Court observed postponing prejudice a continuance may obtained that to a defendant consist (1) original January incarceration; (2) trial date. lengthy pretrial (3) We distinction in the in- pretrial anxiety; impairment have observed a Heinrich, stance of an failure to assert 641; uncounseled defense. See also right opposed a Estrada, to counseled failure 611 P.2d 850. Estrada, to do 611 P.2d at so. 854-55. In both the Caton and Cherniwchan Barker, See U.S. at 92 also 407 S.Ct. cases, approval we cited with Justice Bren (court may at 2191 “attach a different of prejudice nan’s discussion defen weight situation which the defen- in Dickey, dant 398 U.S. at 90 S.Ct. at knowingly object dant fails to from situa- (Brennan, J., concurring). Caton, In attorney acquiesces tion in which his adopted P.2d we Justice Bren long delay adequately informing without analysis that, nan’s in Dickey, and held we client, his from a situation which no delay, case of excessive prejudice appointed”). In respect counsel is it is presumed. should be We stated: that, appellant sufficient to note once re- prejudice produced by kinds of [T]he counsel, private speedy tained trial delays may be substantial even if the promptly asserted. ability defendant’s to defend himself is however, argues, appel- The State that impaired. not The defendant's social re- not vigorously press lant did de- the issue lations, movement, freedom and anxi- spite two It motions. is true that on ety public over accusation seriously are appellant the record limited his trial the delay prolonged. affected when challenges to pre- motions two and the These precisely effects are the kinds of axiomatic, however, trial It brief. is also prejudice would that be difficult for a bring that a duty defendant has no him- defendant to he demonstrate if had the Barker, self to U.S. at proving prejudice. burden of 2190; S.Ct. at Dickey, U.S. at 90 709 P.2d at 1266. We further noted S.Ct. at 1569. Under the circumstances Catón, however, delays that short do not appellant ade- conclude ordinarily produce types these of impacts quately asserted his and, if prejudice there is from a short de- weighs appel- and that this factor also impairment lay, normally consists of lant’s favor in the balancing test. defense, affirmatively can which Thus, proven by the defendant. we held in PREJUDICE TO DEPENDANT that, point Catón “until exceeds a The final factor in ‘probability the Barker where there is a of substantial balancing prejudice test prejudice,’ proving prejudice defen burden necessary dant. It prejudice should remain accused.” Id. at shown in order prove (quoting Dickey, 398 U.S. at Caton, 1266; J., violation. P.2d (Brennan, at Hein at concurring)). rich, Moore, Catón, 638 P.2d at In 644. In a delay we determined that at Supreme 94 S.Ct. at slightly Court more six than months did reach said, expressly rejected point “Barker v. Wingo prejudice at which substantial Barker, 524-28, courts, provided U.S. S.Ct. at lower some federal 2189-91, rejected expressly Court a defendant trial considera- waives doctrine, prior applied by any period the demand-waiver as then for trial. tion demand appellant’s only slightly in favor in the In instant how probable. became balancing eighteen overall test. ever, approximately delay of sufficiently long presump months BALANCING THE FACTORS pretrial respect tively prejudicial with Caton, concerns. anxiety and related balancing A of the four factors Although prejudice P.2d at 1266. Barker inescapable from leads us to the minimal, it cannot appellant may have been that a trial violation has conclusion Moore, Supreme In overlooked. occurred in this case. The first three Court said: delay, length delay, reason for factors — by de- weigh caused [Prejudice to a defendant assertion of the sub —all not con- bringing him trial is lay stantially appellant’s in in favor as far as to his de- possible prejudice establishing

fined to the trial violation. Inordinate proceedings. prejudice in those to the defendant is fense final factor conclusive, slightly delay, again less leans but appellant. in favor of The case is not even prejudice possible from “wholly aside delay in particularly close. The this case merits, may ‘seri- to a defense on years appel of one and one-half between with the defendant’s ously interfere only not lant’s arrest and his trial was he is free bail liberty, whether Cher- unnecessary, inexcusable. it was not, disrupt employ- may his and ... niwchan, concurring opinion made the resources, ment, his financial drain comments, following equally per are which associations, him to subject his curtail tinent the instant case: anxiety in obloquy, and create public responsible for the him, only Not have those family and his friends.’ These his prosecution of this case violated serious for some than factors are more defendants, they also others, inevitably rights of these but they are but extent, perform responsibili- have failed to every case to some present offices, ties, they by virtue of their in- every defendant will either be should assumed. Public officials pending or on bail sub- carcerated designedly hazard the casually not restrictions on ject to substantial people in enforcement of interest of the liberty.” who do of the State. Those the laws 26-27, (quoting 94 S.Ct. at 190 414 U.S. at expect to their constit- should to account Barker, 92 S.Ct. at 407 U.S. at they have such failures for uencies for (citation (White, J., concurring)) accomplished obligations of the omitted). footnote they hold. offices which prejudice iden- The other two elements (Thomas, J., specially con- P.2d at 470 Barker, Supreme Court tified curring). however, present appear do not to be remedy for a violation subjected to Appellant this case. and dis incarceration, trial is reversal apparently lengthy pretrial missal of the information. Strunk Unit jail after his spending only days seven States, ed see, Further, does do not nor arrest. we Stuebgen, 548 P.2d 870. contend, delay impaired L.Ed.2d

appellant that the but, remedy, course, is indeed a drastic Dismissal defense. Of his trial Barker, “it is Court said testi- to obtain Swazo’s enabled remedy.” 407 U.S. per- only possible do not mony against appellant, but we 2188. The denial 92 S.Ct. at type prejudice this is the ceive that viola right is different than speedy trial contemplated in properly considerations guaranteed constitutionally Thus, respect tions of other impairment of defense. accused, such as the failure rights of the conclude that prejudice, to the factor jury or impartial provide public trial or an prejudiced by presumptively appellant was in an of evidence obtained minimally, so the admission lengthy delay, but search, vio- those because factor, tipped unconstitutional that, the balance as to this by generally pro- right. can corrected of lations be existence the exceptions Once are viding made, another trial defen- guarantee becomes shallow and rights The denial dant’s are observed. of a meaningless, and its further is erosion inev- trial, however, speedy cannot remedied itable. Former Court Justice Wil- a by further trial. It is this reason that Douglas commented, regard- liam 0. once understandably hesitant courts in find- are ing guaranteed the freedoms Bill by the of ing provide speedy a failure to a trial. Rights: Strunk, 412 U.S. at 93 S.Ct. at 2263. guarantee But is not self-execu- bar, therefore, ting. nightfall the case at where the As does not come all at clear, once, violation fundamental determi- neither oppression. does In both nation reduced this: Either there is a instances, twilight there is a every- when right speedy trial or there not—and thing remains seemingly unchanged. meaning Rule 204 either has some or it is And is in twilight such we all simply empty gesture an of no substance. most change must be aware of right If the a speedy vitality, trial has slight air —however un- we become —lest does, we believe that it then it must be witting victims of the darkness. tempta- if ever. The observed Douglas Letters: Selections from certainly this, tion exists in a such as case Papers Private Justice William 0. deplorable, the crime where involved is (M. Douglas 1987). Urofsky ed. We gloss over the violation relegate right will not speedy trial conviction, thereby obtaining affirm twilight. that uncertain popular dangerous result. That is a busi- foregoing reasons, For the we reverse guarantee ness. The constitutional of a appellant’s convictions and to the remand speedy us, trial exists for all of and its district court with instructions to dismiss preservation seriously would jeopar- the information. if it dized were to be honored those where the cases defendants evoked our URBIGKIT, J., specially filed a sympathy or the minor in crimes were na- concurring opinion. perceive right ture. We should apply equal greater or force when a THOMAS, J., filed a dissenting major involved, crime is because the detri- opinion GOLDEN, J., in which joined. to the pending ment accused of unresolved charges and society the interests of in a GOLDEN, J., dissenting filed a prompt and response decisive to criminal opinion THOMAS, J., in which joined. activity magnified are in cases of serious URBIGKIT, Justice, specially crime. concurring. nevertheless, regrettable, that, It is July 1957, in On beside meadow preserve order to right, this fundamental Thames, London, west of between through defendant slip convicted must vir- Windsor, Staines and the American Bar tually unpunished. innocence, Guilt or Association dedicated a memorial however, is not the issue. The constitu- Magna Magna Carta. The Carta was guarantee tional of a as with King from exacted John at coun- the old protections other constitutional for the ac- ground cil called Runnymede in June cused, protect exists to citizen every 1215 means which would been governmental oppressive prosecution, and if called extortionate done men lesser facing charges an innocent man criminal gain. pro- lesser Its fortieth article would be little comforted to know that this sell, “To no one vided: will we to no one Court has chosen to overlook constitutional deny delay right will justice.” violations in uphold order to the conviction obviously guilty years Magna an man. A More than 560 constitution- after the guarantee written, selectively al cannot virtually ob- Carta was unedu- served, with exceptions Virginia planter legal out in carved cated with little cases, tough threatening without the very training sat in his room in Raleigh Tav- patriots lawyers, the first was can nurtured on ern and wrote draft what Virginia thought right Declaration Blackstone. Some become George eighth article Rights. rights and similar were so capi- provided: “That in all Mason's draft clearly part “liberty” of our that no Bill man prosecutions a hath a tal or criminal necessary. Rights But Amer- impartial to ... a sure, gave people ican wanted to be jury vicinage... of his place trial first * * Thus, parlance Magna Mason’s Sixth Amendment *. [Footnotes justice pledge delay not to was Carta’s omitted.] correlative, affirmatively stated as its Rights speedy of Americans to a trial right speedy trial. to to a singular were confirmed essence of Trial, Coleman, Speedy Slow Poulos and heritage our from this constitutional histo- Implementation: The ABA Standards in ry. spells The United States Constitution Statehouse, Hastings Search aof 28 L.J. through out right the Sixth Amend- 357, (footnotes omitted). (1976) 357-58 Wyoming by ment as does the Constitution right preeminence The Const, 1, Wyo. inclusion art. § history society of our most the basic was Many, many years more recent 1215 than Judge expressively by federal court related Runnymede, at in continued concern about Provoo, United States 17 Thomsen of our foundational constitutional another 183, (D.Md.), 857, 350 F.R.D. 196 aff’d U.S. rights, Judge Learned Hand warned: 101, (1955): 100 L.Ed. 761 S.Ct. If of crime is to be con- trial is of The regard pro- ducted with so little that standing jealously guarded and been English tection centuries of law which Magna Carta over the centuries. states: individual, given sell, to the we are in- deny no to no one or "To one will era; justice.” provision This deed at the dawn of a new delay, or implemented special jail by writs much we have deemed vital to our was that by liberties, delivery, and later commissions is a delusion. general jail delivery, special which under Re, v. Di F.2d United States

judges jails year. In cleared the twice (2d Cir.), granted cert. passed the Habeas Cor- 1679 Parliament (1947),judgment S.Ct. 91 L.Ed. Act, II, pus required 31 Car ch. which 581, 68 S.Ct. 92 L.Ed. aff’d 332 U.S. prisoners indicted for treason or fel- ony tried at the next sessions or re- hysterical an- If there is a thesis bail, appear on leased “unless separate guish pervading discussion upon made, Judges and Justices Oath histori- it can dissents King for the Witnesses could my recognition why contrasted cally Term, produced the same not be Ses- Congress’ dissatisfaction the United States sions, Delivery; (2) or Gaol General rule, Wingo, Barker with the Barker if or Persons committed Person as 33 L.Ed.2d 101 U.S. aforesaid, Prayer or upon his Petition in Speedy lead to the enactment open the first Week of the Term or Court * * passage of defin- Act of as with Trial *, Day to be first Sessions adoption ing or of court rules state statutes Trial, brought his shall not be indicted highest of individual by the tribunals Term, the second Sessions and tried * * * not without similar Wyoming states. was Gaol-delivery, after his General system justice delivery concern our state Commitment, his trial shall be compliance justification and searched for discharged from acquitted, he shall be criteria of Act, with the constitutional imprisonment.” That recognition the confines of “the Bulwark of the Blackstone called necessarily sufficient Constitution”, Barker were not was still cherished British Wyoming Ju- protection, without more people our the British time per- judicially adopted, by Ameri- dicial Conference answered Constitution necessity responsibility ceived Trial Act of 18 U.S.C. 3161-3174 §§ (1982 Supp. 1986).2 ed. & IV adopting what is now Rule Uniform for the District Courts of the Rules previous judicial failure at- tempts Wyoming. problem to ameliorate the drew congressional attention to the need for a as well as Practical academic criticism of Many trial act. states had al- was, publica Barker from the date of ready adopted their own versions of such tion, continuing. immediate and Amster Congress an act. particularly focused on dam, Speedy Rights Criminal Trial: winning the barriers a dismissal and Remedies, 27 Stan.L.Rev. 525 Er on the lack of in accelerating interest Right Speedy Trial: Stan ickson, process part on judges, prose- Implementation, Its dards Hous.L. cutors, and attorneys, many defense Wingo: Barker v. (1973); Uviller, Rev. had rely whom come to in order Speedy Trial Shuffle, Gets a Fast 72 Co heavy to deal rising caseloads. The Constitu (1972); Note, lum.L.Rev. 1376 1960’s, crime rate in the and the concomi- Right tional Law—Standards for tant increase in backlog in the feder- Trial, Speedy (1972); 51 N.C.L.Rev. 310 courts, heightened legislature’s al in- Constitutional Law Development, Recent solving speedy prob- terest Right Speedy —Sixth to a Amendment — lem. This concern over the failure of Test, Balancing Tria l —A 58 Cornell previous judicial attempts to cure the (1973).1 399 L.Rev. increasingly lengthy delays in federal criminal Speedy trials culminated in the Responsive to the obvious deficiencies Trial Act of 1974. application by ad hoc demonstrated Barker, primarily which served to avoid Note, Determination Dismissal Sanc- of protection Speedy 197Jj, prose- tions Under the and absolve Trial Act of delay cutorial in the process, conviction 509, (1987) LVI Fordham L. Rev. 514-15 (footnotes Congress omitted). United States Speedy enacted the Many states3 either interesting compare 1985-1986, comprehensive 1.It Appeals Court and Courts 75 Geo. of analysis 713, Judge (1987). of Circuit Court John C. Godbold L.J. 953 Godbold, Speedy Major Surgery a Trial — for — U.S. -, III, Taylor, 2. See (1972), United States v. 2413, 108 National 24 Ala.L.Rev. 265 which was (1988); S.Ct. 101 L.Ed.2d 297 printers United at the when the Barker case was deter Pollock, (9th Cir.1984); conclusion, States v. 726 F.2d 1456 Judge mined. In his Godbold stat Annotation, Delay Excludable Periods Under ed: of (18 3161-3174), Speedy Trial Act §§ USCS 46 attempting aspects Without to cover all of (1980); Note, Speedy A.L.R.Fed. 358 Trial impact of the ABA Standards and the Noncompli Act 1974—Dismissal Sanction of for problems Second Circuit Rules of Defining Range ance with the Act: District of speedy they it should be noted that strike Preju Courts’ Discretion to Dismiss Cases with directly at some of the more difficult areas. dice, (1988). Criminology 79 J.Crim.L. & 997 great importance Of is the removal of the responsibility focus of from the defendant to Note, supra, LVI Fordham L.Rev. at 514 n. 40 vein, public prosecutor. the court and In this states: necessity the eliminated, for demand the accused is See, except procedural e.g., (West sense of Cal. Penal Code § 1382 moving discharge 1982) (enacted plea 1872); for before trial or of Ill.Ann.Stat.Ch. Also, guilty. (Smith-Hurd provide 1980) (enacted 1963); the ABA Standards for 103-5 ¶ provide (1987) (enacted and the Second Circuit Rules both for Nev.Rev.Stat. § 178.556 fix, 1967); periods. necessity definite time Right, supra see also Constitutional proof prej- for the existence and Congress of individual note at 697-98. sometimes re- udice is during thus eliminated. ferred to the state legislative trial acts (footnote omitted). Id. at S.Rep. 293 debates. See No. 93d Obviously, 14-17, (1974); Cong., his concerns were Cong. not answered 2d Sess. 21-22 119 subjective balancing (1973) (remarks pro- Ervin). the ad hoc thesis then Rec. 3264 of Sen. Sullins, length Similarly, vided the Barker decision where the see Iowa—Dunahoo and actually only Justice, trigger- of Speedy considered as a 22 Drake L.Rev. 291 ing mechanism before consideration of sub- which states: contemplation stantive of the constitutional in- protection The first and best Project, terest. pursuant Sixteenth Annual Review afforded a defendant is to a fixed- of Criminal Procedure: United States time dismissal statute with criteria of dismis-

101 Note, Speedy Trial (1973); adopted or Geo.L.J. 657 ameliorative statutes enacted Delay, and Criminal Justice practical obligations and as- 57 Schemes rules to meet The Lag (1972); Note, trials. sure workable remedies Cornell L.Rev. Association, recogni- Trial, The American Bar Right Speedy ging 51 Va.L.Rev. Barker, insufficiency provid- tion Right Note, Speedy to a (1965); leadership by and moralistic ed scholastic Trial, 57 Colum.L.Rev. 846 Criminal judicially adopted proposals for rules Constitutional Development, Recent establish de- legislative enacted statutes to Right L aw— C riminal Procedure — Among the exam- fined time limitations. Speedy Trial—Where There Has Been South Dako- ples responding were states Delay Substantial and Claimant Raises North Carolina. State ta, Jersey, New Harm, Showing Prima Facie Resultant Reekes, N.C.App. 297 S.E.2d v. Prejudice Proving Burden Absence 472, 298 S.E.2d 693 review 307 N.C. denied Commonwealth, Held to be on VilLL. Pippin, (1982). N.C.App. Cf. State Annotation, (1971).5 Rev. 365 See also review denied 313 324 S.E.2d at Instance Public Continuances (1985). Included N.C. 330 S.E.2d Appointed De Counsel Over Defender in decision was the determination that Objections as Excuse Denial fendant’s Acts court protection Speedy Trial Trial, (1982) Speedy 16 A.L.R.4th rights that rules created or confirmed new Annotation, Right Speedy Accused’s supplementary to the Barker were to be Federal Constitutio n —Su Trial Under right to a federal constitutional enunciated Cases, preme Court L.Ed.2d showing preju- trial and that (Tex. Cf. Meshell 739 S.W.2d necessary before the always dice Cr.App.1987), speedy trial where the Texas compliance rights could for constitutional unconstitutional under the act was declared v. State justify relief. mature separation concept. of powers Assur state Williams, 225 85 Wash.2d 530 P.2d prosecu- a of trial remained ance a (1975). Brans responsibility. judicial and torial introduction, Wyoming, In it is noted that State, (Tex.App. cum v. 892 750 S.W.2d legislation, anticipated in early territorial Kolb, v. 1988). 755 State likewise S.W. See today modern what is trend about (Tenn.Cr.App.1988). 472 2d years.4 How far we are called one hundred is impairment of defense a cau- Realistic heritage regress from to- some to pre- sity of extended Trial Comment, Speedy The Guar- day. sumption prejudice logically is related. of Inter- antee: and Criteria Confusion 49, 498 Langone, v. 127 N.H. A.2d State Violation, 22 De Paul L.Rev. preting Its likewise, public (1985). singular a But 731 Comment, (1973); Constitutional 839 Striker, 87 involved. State v. interest is Trial: The Element Right Speedy to a (1976) P.2d 851 557 Wash.2d 44 Prejudice Proof, and the Burden of states: Note, Speedy Tri- (1971); Temp.L.Q. 310 cases A trial in criminal is a Developments Concerning als: Recent protected by the personal right a Right, 4 Fordham Urb.L.J. 351 Vital (Const, Note, constitutions A Constitu- federal and state Speedy Trial: 22), objective Definition, art. is also an Right tional Search 61 § Trial, Note, fixed-time, demand, Obligation Securing Speedy being lapse of the The sal dismiss, (1956). showing good Wyo.L.J. and no 44 motion to 11 delay by the cause for state. Hoffman, v. 409 See also South Dakota — State Note, supra, 61 Geo.LJ. at 5. The author Note, (S.D.1987); Const, N.W.2d 373 State introduction, quotes from U.S. amend. Hoffman: Balance, 180-Day Rule and Lack (Chas. Dickens, Oliver Twist VI C. (1988) Jersey Wice, and New S.D.L.Rev. Sons, 1901): — New York Scribner & Re Speedy-Trial Dilemma: A Handbook on prosecutions, the accused “In all criminal form, Crim.L.Bull. enjoy ... trial —” shall " Bumble, that,’ supposes statute, Mr. ‘If law said Wyoming prior See review ” (1908) Wyo. omitted.] Keefe, [Footnotes ‘the law is ass.’ 98 P. 122 public important which the has an inter- be started until after trial. These non- est. Some of the considerations which productive conditions are achieved at a affect society generally the interests of great expense financial society.” Note, Trials, are mentioned in Speedy If afar, a scholar space from outer Developments Concerning Recent a Vi- unlearned in warp and woof of the Right, tal Ford.Urb.L.J. justice American delivery system and con- (1976). The author states: stitutional processes, law decisional “A defendant in a criminal case can critique asked to the meaning interpre- advantages through achieve definite tation of the speedy litigation, starts, delay. Once trial stale cases person likely opine would that it often is a easily challenged are more by defense process saying not, clearly what must attorneys on cross examination. Ju- be. The substantive thrust of these hun- ries are often disenchanted with of- dreds or thousands of cases invokes bal- fenses that occurred in the re- ancing of protection constitutional against past. mote If witnesses bending structural explicating constitu- become long periods unavailable over protection. tional How little is the most we prosecutorial of time or ardor should require will compliance constitutional wane, guilty society’s benefit at much accept how is the least we will expense. legalistic denial becomes the dilemma for affecting probabili- Aside from applied protection provid- constitutional obtaining conviction, ties of ing speedy trials society. within our significant im- pacts upon the quality judicial action This case and Phillips v. possibilities and the of future criminal (Wyo.1989)pose that rational and mor tendency postpone conduct. The tri- alistic test for regard this court without als congestion adds to court and the the histrionics inculcated in dissents. Our backlog of dispose cases. To of such Wyoming jurists oath as backlog, plea bargaining frequently guaranty not to every pros the success of utilized. expediting interest of approval ecution or every assure the persons matters accused light- receive Quite conviction. contrary, it is er sentences they than those actually support, stated us to obey and for defend may have deserved. A impact second the constitution the United States and of delay of is to weaken the deterrent Const, Wyo. this state. art. 20. § of effect that the justice system criminal Among rights those for which we are should have on would-be criminals. charged to in supervisory responsi defend Finally, trial is intri- bility operation justice for the of the deliv cately related to the needs of a well ery system guaranty is the of a society

ordered in several other re- trial for those criminally charged. In Glas spects. Guilty persons released on bail (Alaska gow v. 686 n. 6 for too tend to commit other 1970), abandoning a blind adherence crimes or flee jurisdiction approach, to the federal that court com altogether. courts Defendants who mented: are not bailed spend must “dead” time interpretation This unreasonably re- jails in local exposed to conditions de- power stricts the of the members of this structive of human character. For court to fulfill obligation uphold their those eventually who are found inno- such, the constitution of this state. As it cent, potential their contributing be must be discarded. society through members of any kind Comment, employment See Right Speedy during pre-trial is lost Trial: hand, Maintaining Proper incarceration. On the other Balance Between possibility rehabilitating the Interests Society those who and the Rights are eventually Accused, found guilty is diminish- UCLA-Alaska L.Rev. ed procedures since (1974). correction cannot found, constitu- after such indictment is he shall the state

It is time to reassess discharged, entitled to so far as the morass of be be diminution from tion without offense, relates to such unless the act federal pre-speedy trial Barker related application, happens on his or be occa- direction, least, provid- as In that law. try of time to such sioned want decisions of anoth- by the result-oriented ed cause at such third term. tribunal, most not confine the er should expect If, this application called to from is that we are SEC. when Wyoming discharge constitution. When made for the of a defendant state’s constitutionally sections, either of the last system justice is under two promised by rules court shall be satisfied there is material provide what called part Territory, on the the constitution nor evidence of court and neither had, wrong in cannot then that reason- something is accomplished, rule is procure made to responsibility for able exertions have been of constitutional attitude same, just ground judges. for the and that there appellate court and had to believe that such evidence can be philosophically, court Perhaps, term, succeeding may cause at the something learn step should back and prisoner remanded or continued and the of constitutional history. Evisceration bail, may require. admitted to as the case quantum gradual erosion. rights is a provision, For further discussion of this guaranty speedy criminal trials was Wyo. Casper, City of, Wagner, see: meaningful concern the founda- very (1955); Levand, 284 P.2d 409 State v. principal and remained a tion of this nation (1927); 262 P. 24 Wyo. Wyoming Constitution interest when Wyo. 98 P. 122 Keefe, and uncomfort- during that hot was written Note, Obligation Securing Clearly, the criteria summer of 1889. able Trial, Wyo.L.J. Speedy through justice society; admonition to not an aimless protection system This constitutional specific prerequisite and defined and was a applied dispositively first prescription was at Run- obligation. Its institutionalization Wyo. at 98 P. 122. Chief Keefe, ago as a standard nymede nearly years court, Potter, recog- writing for the Justice authority for the justice provides scant Legislature state of this nized that “[t]he authenticity vituperation us, with which unreasonably it determined for least, members of this court seems, what, attacked some is to certain cases today. these cases regarded speedy trial within the as a require- meaning of the constitutional statehood, in- years Fourteen before 245, 98 P. 122. ment.”. Id. at ch. 14 at 158 Wyo.Comp.Laws cluded trials was the substance recognized: That court territory: the new frontier established for granted a accused should be That an for any person If indicted unnecessary 150. SEC. or unreason- trial without prison, and committed to any offense in criminal delay not a new idea able brought least, to trial before shall not be theory, In at jurisprudence. the court hav- recog- second term of end of the right may be said to have been offense, which jurisdiction of the ing a commis- nized at common law. Under found, after such indictment general goal shall be held deliv- judges sion to discharged so try entitled to be empowered he shall be and ery they were for he whereby jails relates to the offense which every prisoner, far as deliver committed, delay shall unless the in generally was at least twice cleared were * * * prisoner. application of the happen on the the habeas year. And each (1680), II it was of 31 Car. c. corpus for act any person If indicted SEC. things, ev- among “that provided, other offense, given for his has bail any who or felo- for treason ery person committed brought to trial shall not be appearance, first shall, it at the requires if he ny third term of the end of the before the term, day of or the first the next pending, held week of cause is court in which the terminer, oyer and session next the state constitutions as well as session, term constitution of the be indicted in that or United States. or bail, else unless King’s admitted Id. at 98 P. 122. produced witnesses cannot as amended this court

time; acquitted, and if or if not indicted adopted present proce- rules of criminal session, term, and tried the second dure. Included W.R.Cr.P. which discharged imprison- he shall be from his provides: * * * imputed ment for such offense.” governing practice Rules in district courts. “speedy The term trial” as it occurs in Wyoming may the constitution been Judicial judicially inter- Conference from time to time make and rules preted amend meaning generally as a trial as governing practice in the district courts soon after prosecution indictment as the not inconsistent with the Wyoming Rules can with diligence prepare reasonable applicable Criminal Procedure or stat- for, regard being had to the terms of * * * Copies utes. of rules and amendments court. A trial “conducted accord- shall, upon so made their promulgation, ing rules, regulations to fixed pro- and furnished to Court. ceedings law, vexatious, free from ca- In W.R.Cr.P. superseded,” “Laws pricious oppressive delays.” (6 was specifically stated that the derivation Ency.L., Ed., 993.) regulat- 2nd “A trial days from territorial of the speedy trial law, ed and conducted fixed rules of statutes, recently then most in Re- found any delay operation created 7-235, vised Statutes of 7-234 and §§ those rules prejudice does not work were “superseded.” Surprisingly, 7-W.S. any right constitutional of the defen- statute, as the third territorial (Church 254; dant.” Hab.Corp., sec. supersession was not included sec- Sample State, Ala. So. 367 [36 tion adopted. when the criminal rules were (1903)]). These procedure, rules of criminal in them- (emphasis Id. at original). P. 122 selves, provided previ- no substitute for the espoused: This court further ous statutory Having limitation. at least intended to supersede the stat- historical questions here reserved clearly are [T]he utes pro- existent before statehood which constitutional, they involve the consti- vide the guar- substance for constitutional right tutional of an accused in a criminal anty trials, no antip- matter what right athy may constitutional been is claimed been to have violated in this engendered composition, in rule it cannot supplements case. The statute the con- rationally in- be construed that this court provision stitutional pro- secures or just tended to leave the bare constitutional vides a securing method for right hanging protection without out thereby regarded It is to declared. ancillary support. Consequently, con- purpose rendering enacted for the attribution, regard verse without effective, guaranty and as inquiry appropriateness of the of constitu- legislative declaration what is and delegation primary tional responsibil- not, what under circumstances ity of judicial this court for the system named, proper reasonable operation justice delivery system bringing respect to trial in accused Const, pursuant Wyo. art. § his aforesaid. The adoption by Wyoming Judicial Confer- uniformly authorities hold that such stat- ence pursuant of the uniform rules to utes are purpose enacted for the of en- court, enabling specific rule of this has forcing right, the constitutional and that meaning. definable as- Consequently, I they legislative constitute a construction substance; cribe to Rule 204 real not or definition provi- of the constitutional just bland, non-binding philosophic hope. provision incorporated (1876) sion—a Wyo.Sess.Laws most of Even if 14 is ch. 1564, (1970)], (which 26 L.Ed.2d 26 was forced ques- is by present rule repealed to conclude: provided), is if no alternative tioned the Sixth Amendment "... When replacement, Rule cannot be actual stake, speedy may trial is at meaning until this substance denied necessary equally realistic and rule superseding provides a further court prejudice once the assume the accused Pro- Rules of Criminal Wyoming within rapid pros- he denied a shows that was cedure. ecution.” Rhode Island6 except for Wyoming, But, prosecution be de- how must rescinded a court adopted and then which courts are warranted in as- layed before dissected the rule, which is the state suming prejudice? many There are as through a course of by rule aberration as there are courts have answers adoption of a state rule or after decisions attempted question. to answer for denying the desired effect statutes. speak length to these issues out We trials, Wyoming jus- found enforced concern, hope and in the of shock and excusatory expletives de- in the tification Bar of this state will know that that the State, Sodergren from Barker. v. rived in disbelief from a set of facts we recoil State, (Wyo.1986); Binger v. P.2d 170 days arrest reveals that 107 after which State, (Wyo.1986); Cook v. 712 P.2d 349 pass permitted to before have been State, v. (Wyo.1981); P.2d 5 Robinson fit responsible officials have seen The initiative (Wyo.1981). P.2d 168 magistrate bring accused as before rule, adoption Wyoming of a process in the by delaying their tri- required law—thus discerned from the present Rule 204 can be accordingly. question The is not al wringing of this court in hand publicized have been these defendants whether State, wrongs prej- v. only, are their wronged, but Cherniwchan sense? (Wyo.1979): udicial a constitutional mercurial characteris- Because of the Rule formerly numbered Rule proof preju- upon giv- express authority tics attendant rule adopted by dice, funda- Wyoming trial is a Judicial by and because en this court to Brennan, analysis and Dickey considerable right, Justice after mental Conference judges.7 district by the involved Florida, supra effort U.S. [398 28, 1980, Wyoming Confer- May Judicial Survey, Survey Topical Rhode Is- Annual 6. Term, September adopted 1979. Rule 22 on 22 Suffolk ence land Law 1987-1988 for Wheaton, and was not issue in that case Rule 22 was See State v. U.L.Rev. by court in the decision. (R.I.1987). considered not 528 A.2d 1109 Authority promulgation court of district W.R.Cr.P., Wyoming was initial- Judicial Conference 7. The is found in Rule rules Wyoming Supreme by ly created order provides that: may of the district Wyoming to consist of members Court Judicial Conference "The Supreme justices Court. rules bench and the and amend time to time make from governing practice aegis, twenty-six uniform rules Under its district courts present adopted. Wyoming of the confer- status of Crim- been Rules inconsistent with by Copies action of this applicable current ence is undefined statutes. Procedure or inal shall, jurisdic- Contrary other observed made court. amendments so of rules and tion, approved separately are not Su- promulgation, these rules furnished to the their Wyoming adopted by action of preme Court.” efficacy consequently showing their this case that Court and clarified, no There has been clearly authority adoption except promulgation proper procedures for the Generally, this court granted court does W.R.Cr.P. This 22 were not followed. Rule except given disapprove all uniform rules court rules approve effect to district not upon receipt curious treat- copy provided rule. This Rule Rule court, explained after may adoption where the the Judi- supra. of Rule ment analysis balancing guide- obviously test as prejudice and the to set Conference was cial prompt P.2d pursued encourage dis- previously in Estrada motivate lines was Rule con- (Wyo.1980), considered what to avoid a position criminal cases and respect is Rule 204. which now violation with stitutional partic- be noted However, requirements. It should yet .inquiry end. Be- does not our provid- ularly of dismissal no sanction opinion was handed down Estrada fore the Striker, deathly even more This evaluation was 557 P.2d 847. See also forced. Mack, conception justice sys- constitutional State v. 788, 89 Wash.2d 576 P.2d 44 development tem since it considered Rule (1978). Appeals The Minnesota Court of 204, adopted September on not as that Barker established acknowledged State, applicable to Estrada v. 611 P.2d a minimum standard as had the Minnesota 28, May (Wyo.1980) published as 1980. Supreme establishing supervi- Court in a court, by Consequently, this at that time sory rule: supersession intimation is debited with “Nothing we have said should inter- what was not even considered. preted disapproving presumptive presently demean our courts and re We adopted by rule a court in the exercise of justice if this court sponsibility to does supervisory powers which establishes either abolish Rule 204 so that citizens are period a fixed time within which cases or, it, longer rely conversely, no able normally must brought.” it, clearly follow unachievable. Stitzel, State v. 409, (Minn. 351 N.W.2d People Beyah, v. 423, See 67 Ill.2d 10 Ill. Barker, App.1984) (quoting from State v. Dec. 367 N.E.2d 1334 29). at 530 n. 92 S.Ct. at 2192 n. Cf. Brown, Md.App. 486 A.2d cert. Bean, v. State 236 Kan. granted 303 Md. A.2d rev’d (1984). (1986); Vickery 307 Md. 516 A.2d 965 Peering beyond the flower and fervor of State, (Miss.1988); Bail 535 So.2d writings justices of all in this (Miss.1985); ey v. 463 So.2d message essential that this author seeks to Hoffman, (S.D. 409 N.W.2d 373 have this court and our citizens acknowl- 1987); Rudstein, Speedy Trial in Illi edge obligation timely as this state’s is that Statutory Right, nois: The 25 De Paul L. disposition, by as demanded our constitu- (1976). Rev. 317 tion, something. grow does mean I weary Glasgow, 469 P.2d at 688 n. applied society of rules that are to be recognized: Alaska Court only to others but never to the enforcers. Virtually leading all of the authorities Any application of situational ethics and matter, however, who studied denigrated concept constitutional is unac- agree ceptable. Consequently, I write concur days should fixed in terms of strongly thoughtful per- most with the running specified event, months from a majority opinion. suasive Words an- excluding periods necessary certain guish system’s for the attack failure of delays delay or at the instance of the performance cannot absolve a lack of com- defendant, which should also be identi- rules, pliance with our own written and precisely. Relating fied See Standards required in responsibility. constitutional Trial, 2.1, Approved Draft, Speedy § Project A.B.A. on Minimum Standards A says, means what it for Criminal Justice Wyoming judges, trial. The district Conference, through Wyoming Judicial Cleary, Conn.App. See State v. Answering understood what it was. A.2d 831 where five continuances responsibility, the constitutional interest enough were and that court did not need to supported through was to be and nurtured Further- issues. consider more, integrity system de- adoption of the uniform rules. Justice strictly mands that the rules are en- William H. Erickson the Colorado Su- with, by provide Wyoming super- ed the rule. To so would have State of was in conflict 45(b), caused it to be inconsistent with Rule seded and modified Estrada. Robinson, omitted). (footnote by defining "unnecessary delay,” 627 P.2d at 171-72

W.R.Cr.P. agree has decided must be deter- If was a valid conclu- which this court I were that this sion, not, following basis do mined on case-to-case stan- which I would follow that dards and the tests set out in Estrada. Its territorial statute must remain in effect. We adoption accordingly admirable but the cannot amend the constitution rule recision 22(d), fixing legislative pro- enactment at least of an absolute deadline Rule of a viding without working replacement. Uniform Rules for the District Courts of the an effective and Court, site to conviction remains to be a scholar and activist with- as a preme and as a trial. Bar Association in the American rights of rule

proponent for effectuation Harvey this mean to in his What does trial, recognized a half a decade and proceedings?8 January criminal On ago that: complaint a criminal was issued and guarantee amendment of a The sixth by executed arrest. the warrant On Janu- recognized as trial has been 29, 1986, ary he was bound over to district provisions key one following preliminary county court court procedure. in our criminal hearing information was and an subse- ^[******] quently filed on February 1986 in the court, arraignment accom- district The United States Court plished that same date. on balancing ad hoc propounded Barker an a defen- approach to determine whether explanation justifi- benefit of Without amend- dant has been denied sixth cation, case, Harvey’s as consolidated with ap- speedy trial. This ment Phillips principal and the actor the case of problems implementa- proach creates offenses, Swasso, L. was first David If are tion. the boundaries January 1987. Even at set for trial on developed by protract- to be case setting, this first the Rule 204 the time of problem solving will result. period ed for trial from date of infor- time limitation solving legislatures should consider State expired. had The limitation should mation by many problems these at once enact- June, year expired early or half a Although the ing statutory standards. first scheduled before the case was even not answer all the ABA standards will A trial motion was filed arise, adoption questions that will their date did not January 1987 trial when by statute or court rule is desirable and, assignment, the by stand undisclosed solution. July delayed to 1987. trial was further filing in- Consequently, the time from Erickson, at 237-50. supra, 10 Hous.L.Rev. to the date of trial exceeded formation re- philosophic to this It was answer days. by rule speedy trial by developed Rule 204 was sponsibility that look at this case on Unfortunately, are called Wyoming judiciary. We application of our constitutional its facts adopted, parentage respectabil- once Factually, delay, as defina- responsibility. regularly challenged by this ity have been record, charged to cannot be replaceable ble in this acceptance of a court without request for ex- Harvey prosecutorial judicial responsibility. It is standard of nothing is Absolutely tension of time. why legislature invades easy to see delay justification presented in this case ignored respon- perceived vacuums of these capture is “flag litigants seek to per- if the all sibility by judiciary for the actual * * * delay.” the reason for United justice delivery system. formance of the 302, 315, Hawk, Geraldo, v. Loud App.3d 13 Ohio States v. 648, 656, 88 L.Ed.2d (1983). relation- 106 S.Ct. That rational N.E.2d 328 1061, 106 S.Ct. statutes, reh’g denied 475 U.S. Wyo.Comp. ship of territorial v. See also Moore present 89 L.Ed.2d 596 to the Laws ch. Arizona, 38 L.Ed. logically ethically be U.S. cannot court rule State, 487 So.2d Hayes 2d 183 prerequi- if disregarded the constitutional by erred in- the trial court presented Whether or not Speedy not the issue trial was guilt jury flight structing as evidence of appeal. substance on Matters of considerable flight against there was no evidence are stated as: when Appellant. court erred failure Whether or not the trial Additionally, particular concern to me is regard- Appellant’s grant in Limine Motion challenge non-responsive trial court for uncharged wrongs ing or acts. evidence of prejudice. infra and Smallwood See footnote impos- erred Whether or not the trial court J., (Wyo.1989) (Urbigkit, illegal ing an abuse of sentence dissenting). Appellant. sentencing when discretion Larson, (Ala.Cr.App.1986); State v. included a statement that has no other (Minn.App.1985); Vickery, support in record or documentation: 369 N.W.2d “THIS Perry v. 1371; having 419 MATTER come 535 So.2d So.2d before the Court on Forsyth, State v. (Miss.1982); day February, 1987, 194 761 P.2d the 4th and the Britton, State v. 363, (Mont.1988); 369 213 State and Counsel for the Defendant hav- (1984); Geraldo, 155, ing requested presentence 689 P.2d 1256 investiga- Mont. both Wheaton, v. 328; State tion.” The trial motion 468 N.E.2d 528 was made Williams, (R.I.1987); 27, April A.2d 1109 and 530 1987.9 delay, given, The reason for P.2d 225. if discovery The State filed a motion for on appropriately ap examined on should be 2, 1987, July apparent parte received an ex period assigned re peal and each to the 2, 1987, discovery July order for on and sponsibility of the state unless the defen compliance then first filed some with the Ross, delay. People v. dant caused the 145 nearly year-and-a-half-old discovery re 483, Mich.App. ap 378 N.W.2d 517 quest Harvey by a witness and exhibit Brooke, 1/28/86; State v. peal denied 381 2, July post-indict list filed 1987. This is (Minn.App.1986). N.W.2d 885 delay require ment that does not the show People v. ing prejudice presumed. is 5, Following arraignment February on —it Archerd, 615, 397, Cal.Rptr. 3 Cal.3d 1986, Harvey promptly filed an amended (1970). Harvey, justifica 477 P.2d For discovery inspection motion for on Feb- delay simply tion for the non-existent in 18, ruary along awith motion to dis- Hill, People 491, v. this record. Cal.3d miss on the basis that sufficient evidence 323, Peo Cal.Rptr. 691 P.2d 989 presented preliminary had not been at hear- Vila, ple v. Cal.App.3d 208 Cal. ing through departing the then counsel. Rptr. delay by pas When entry demonstrating any The next found sage presumptively of time is prejudicial, case action was a letter from the adequate justification by the state is re 5, 1986, trial court dated December or ten Haskins, quired. 220 Mont. thereafter, months which first set the cases (1986); Britton, 714 P.2d 119 and, January secondly, for trial on 1256. consolidated the three cases. No evidence prosecution of a motion for consoli- Simplistically, presented what is a dation is of record. Additional counsel en- January criminal arrest on 1986 and a appearance Harvey tered an for on Decem- July any convened without 15,1986, prior ber counsel withdrew on explanation in the record for the then, January curiously 1987. Most on any justifying chargea- events extension or 4,1987, February bility Harvey’s activity. court entered an of time to If presentence investigation going for disregard order which are the constitutional July predating satisfactory plea bargain. 9. In the scheduled trial some kind of Some July which "however scheduled" occurred on 21, 1987, might probation be entitled to and others counsel, Harvey, through retained get prison prosecution could time. I want judge disqualify filed a motion to the trial and the defense to confer in each and let prejudice supported by the basis of affidavit by January you me know 19 what want to do. and an attached letter. This letter was written copy prior The letter showed a counsel which, by the trial court to counsel in addition Werner, Harvey, Patrick S. who has since cases, to comments about other stated with rele- court, copy been disbarred but no vance to this case: present appearance counsel who entered an requested by I have been the case December 1986. Counsel followed [including Jeddy set the above cases 6. State v. disqualification motion with a letter to the Harvey Lee and 8. State Everett William requesting trial court a decision: checking Phillips] and on each file find that in your ruling your Please advise me of at Swasso], above L. Swazo [David Item 7 [sic] convenience. earliest This not intended to Harvey confessed and incriminated both and, delay the trial of the matter if the Court’s Phillips in Items 6 and 8. There were also * * * recusal, ruling request is in favor of I would plus other witnesses the victim. delayed any cases, the trial not be further. strength of all In view of the of these wasting money trying His denial is recorded handwritten nota- I hate time and them you copy July appreciate and I would it if could make tion on a of the letter as filed governing In short the standards limitation of the clear mandate statutory implementation adopted where rules observed, apply, still we have justification no adequate but no obliged prej- the defendant is not to show afforded, delay, no whether five then all is affirmatively udice or demand that his greater years, call years or fifteen rights say, This is not to be observed. A record that is silent will for criticism. course, completely that these factors are presumption against for not overcome they At times must con- irrelevant. constitutionally by a defendant of a feiture sidered, particularly where the defen- Moore, protection. guaranteed Com. v. If dant’s constitutional is asserted. Mass.App. review de 477 N.E.2d delay for instance a short is involved 1103, N.E.2d 197 nied 395 Mass. 481 * * * People good or the can show cause Harris, 9, 471 N.Y.S. People v. 61 N.Y.2d * * * might the defendant still enti- 61, (1983). If the dis 2d 459 N.E.2d 170 tled to a dismissal if he can demonstrate true, simply write out are we sents’ views prejudice actual or a consistent demand practice our constitution and criminal * * * speedy for a But when the require speedy trial in crimi any rights to delay unreasonably long and the Peo- the “how much is proceedings. nal This is good cause, ple have not shown the de- syndrome. This case only a little evil” may rely statutory rights on his fendant principles comes within well-established proving without more. delay is thoughtful persuasion that the Taranovich, 442, People 37 N.Y.2d 373 justified. unless v. presumptively improper 79, 86, (1975). In N.Y.S.2d 335 N.E.2d 303 Lacking justification, a semblance application principle, speedy of this ignored or properly cannot “[t]he constitution provision of the Idaho Constitution permitted the conviction to stand.10 distinguished by further its close nexus to analysis, In first should consider we establishing specific Idaho laws time other time the time which exceeds the whether proceedings.” frames for criminal Fair rule cre limitation established our court child, 697 P.2d at 1241. The Fairchild requirement jus ates a violation to demand court held: P.2d DeSpain tification. v. 774 77 proper appellate response to an (Wyo.1989); Superior Serna v. Court infringement of the 239, 420, Cal.Rptr. (People), 40 Cal.3d 219 aside the conviction. We do trial is to set (1985),reh’g opin 707 P.2d 793 denied and it lightly not take such action but believe 12/19/85, 475 ion modified cert. denied U.S. duty unique circum- to be our under (1986). 894 106 S.Ct. 89 L.Ed.2d Accordingly, presented stances here. first, essence, It is to be answered that judgment of conviction this case is Second, delay. decide if there is a reversed. delay presumptively prejudicial. can be Id. at 1244. 793; Serna, Cal.Rptr. P.2d 219 707 Fairchild, from which waiver v. 108 Idaho Absent evidence adduced, in (1985). can concur- or forfeiture11 against may reversing be struck an conviction be- While hard blows 10. A California may opponent, trial where not be withheld cause of a denial of the strike explained was not in either the brief or at oral such time as occasions without warrant until argument, disability. summarized: an adversarial learned, of circumstances chron- long ago Anglo-Sax- The combination from our We fairness, history, jurisprudential the crown icled here violated fundamental case, merely process. sees that does not win or lose a touchstone of due Hartman, justice Cal.App.3d People is done. 216 Cal. v. prose- (1985), primary function of the office of Rptr. review denied 648-49 vigilantly diligently pursue cutor is to 10/28/85. those who are believed to have violated the Westen, Away See 11. There is difference. criminal codes of the state. regard, guiding light From Waiver: A Rationale In that of due Forfeiture Procedure, Rights process in Criminal illuminates the field of combat and Constitutional duty obeyed. depth Mich.L.Rev. 1214 defines the to be rence, principle I follow the enunciated The constitutional mandate that “a de justified. take travention ed States v. S.Ct. (Marshall, J., dissenting). cannot * * * strained State v. also State v. P.2d 909 Amendment constitutional due tional cation. ple quires a constitutional function in of the Constitution.” Consequently, Rule P.2d 381 “are Wilson, To supplemented by legislation. Idaho constitutional lished Court in determinations under inquiries the federal constitution involve ad hoc United States Constitution. identical to the trial under the Idaho Constitution is not fords the * * * However, binding clause of the fourteenth amendment. ly guaranteed guarantee is a lic trial. * * * The Idaho Constitution also af- implementing P.2d Criminal defendants are constitutional- California accomplish process, equal protection ‘supplementary in “allowing 1497, 1510, Godlewski, protection ethically logic (1978) submerge Hobson, by on the of constitutional (1943)), Barker v. other into Cal.2d MacDonald, party * * * as it remains Russell, (emphasis a desired conviction in con where engage in an “exercise in 33 L.Ed.2d 101 speedy words, states fundamental results in a violation United States (1963) judicial right guaranteed 99 Idaho rule to assure constitu 71 L.Ed.2d 696 right that statutes The sixth amendment accused in a criminal doctrinaire concepts Cal.2d to and a construction Wingo, provision 108 Idaho 32 Cal.Rptr. by right practical trial claims under (quoting ad hoc violation of Court in to guidelines illusion.” Unit 456 U.S. the due I will not protections, guarantees. unrepealed, original). 407 U.S. to a speedy * * * right, (1972), 682(3), and Sixth has been from Peo (or rules) demands factually People process speedy by the (1982) 44, 48, estab- While made appli par pub- See re al responsibility neer hands of many. prior tional substance of the constitution of the tions of the result oriented Reich came not to the totalitarian control of the Third forcing the constitutions of the United States and of this state. Hitler’s ascension Alaska L.Rev. 242. as ty here in basic fundamentals with the morali- integrity a constitutional mandate and a rule re- quirement, recognized the Alaska Hooey, 393 U.S. at (Alaska 1971) (1966)) (footnote omitted). (quoting 116, 120, tional stitution casually disregarded. real delivery system. Otherwise, the constitu fendant is vers v. In tion and long delay accused to defend himself.” and concern accompanying public accusa- tion Anglo-American legal system: prevent basic thought tional Suffice it to remember that this constitu- operation. charged provided by any short-lived Weimar meaning Rutherford provision prior integrity It Haubert, demands of criminal totalitarianism are constituents of the court United States v. guarantee 86 S.Ct. democratic 49 L.Ed. mean undue and essential to Supreme Court, is to be ^[3] entitled to a with the responsibility of en- political will to limit the Comment, supra, 4 UCLA- abandonment of the solely nothing of the the armor of constitution- application 773, 776, impair Glasgow, 377-78, Likewise, ^[2] perhaps responsiveness. has universally been party, but also from system recognized from successful elec- oppressive protect to minimize anxiety Wyoming if it is to be so Republic the ability of an morality possibilities Ewell, addressing both only separated 77, 86, 89 S.Ct. at 577 15 L.Ed.2d 627 486 P.2d 946 the entire con by 469 P.2d justice we are faced at least three trial,” a thin ve- incarcera- judiciary 383 U.S. acquires of Ger- and the system “[1] opera- justice Bea 682, right of the speedy application, to a admonition tri this court al.” Smith v. Hooey, interests, U.S. should in all basic constitutional (1969). S.Ct. 21 L.Ed.2d 607 including trials, speedy attainment of fol-

HI Lyttleton was the (1762-1767), “Coke responsibility enunciat- philosophic low the Klopfer elementary Warren book of law stu- Justice universal ed Chief N.C., 223-26, State of Rutledge dents.” And to John of South 993-95, (1967): L.Ed.2d S.Ct. Carolina, “to the Institutes seemed right speedy here that the almost the foundation of our law.” To holdWe any Coke, turn, Magna as fundamental as of the Carta was one of by the Sixth Amendment. rights secured English liberty. bases fundamental very its right has roots at the foun- That Thus, surprising that when English heritage. our law Its dation of George Mason drafted the first of the jurisprudence first articulation modern rights, set forth colonial bills he in Magna made appears to have been Magna Carta, using principle phraseol- written, (1215), wherein it was Carta ogy explication: similar to that Coke’s man, deny no sell to we will “We will prosecu- or capital all criminal “[I]n justice man either defer tions,” Virginia Rights Declaration of recognition right”; evidence of but right... “a provided, man hath a justice in even earlier right right trial....” That Assize of Clarendon times is found early fundamental at this was considered century, By the late thirteenth history period in our evidenced its gaol justices, with commissions of armed guarantee of several in the constitutions oyer and terminer were delivery and/or nation, as well States new three times a visiting countryside position prominent in the Sixth year. justices, These Edward Coke Sir Today, each of the 50 Amendment. Institutes, II “have wrote in Part of his guarantees States to a prisoner de- not suffered trial to its citizens. coming tained, their next but history prisoner speedy jus- given the full and reception country in this trial and its tice, detaining him in ... without clearly that it is one of the most establish prison.” Coke, prolonged To detention rights preserved by our Constitu- basic contrary trial would have been without original in and foot- [Emphasis tion. England; law and custom of but the notes omitted.] delay in by the he also believed that premise special is to My concurrence itself, improper would be an denial Wyoming is now left out assure that explication Chapter justice. In his histori- accomplishment of this somehow Carta, Magna of the he wrote that Strunk v. United responsibility. cal man, will sell to no we will words “We States, 93 S.Ct. U.S. man deny any or defer either Florida, Dickey L.Ed.2d 56 following justice right” effect: or had the 1564, 26 L.Ed.2d U.S. therefore, every subject of this “And him bon- realme, injury done to unconstitutionally— I decline to strain — terns, is, persona, by any vel other to affirm. ecclesiastical!, tempo- or he subject, be free, man, woman, old, rall, bond, or or Justice, dissenting, THOMAS, with outlawed, excommu- young, or be he GOLDEN, J., joins. whom nicated, any excep- without other Lady: Dear tion, may remedy take law, justice, Wyoming has have The Court of of the course him, done to two right injury for the to reverse convictions elected sale, sexually fully without as- freely without who abducted and those deniall, delay.” speedily persuaded without that you. We are saulted right they denied constitutional were read in the Institutes Coke’s were right cannot Since that to a trial. virtually every stu- American Colonies time, individu- these Indeed, Thomas reinstated law. Jeffer- dent of the free. go als he law must that at the time studied son wrote simply court’s decision manifests an exer- had be most concerned The Court your expe- anxiety tormentors supervisory authority about cise of its over the awaiting they rienced while were objec- I trial courts. have no fundamental they must have been dis- We assume supervisory tion to the exercise of such traught uncertainty because authority appropriate. Doing when so might future hold for them. what the me, in this case is not a wise choice. For charges may well af- pending propriety invoking supervisory relations, adversely their social in- fected upon showing authority depend would actu- movement, their freedom hibited prejudice al to the accused which interfered anxiety to suffer because of caused them a fair trial. Possibly, they had public accusation. agree majority approach While I that the difficulty obtaining employment, some application is not an accurate of constitu- likely there a cloud of and it is requirements, deep tional I also have a surrounding suspicion them. philosophical difference with what It is true that no one threatened to My analysis court has done. of this deci- kill his will on them and then them wreak upon premise sion is based that but, balance, these concerns must be significance application principles more on the scales of constitutional afforded justice than the terror and trauma not an end in itself but a means to an end. when than what these accept the decision of this court. Re- perience, commit some crime. member how duct. court can do speedy trial. inflicted far more societal hopeWe we are involved in criminal miscon- trial will equally important but THE SUPREME COURT OF Very truly yours, it can nothing important you. you men did to address can understand and These factors have legal significance change your Certainly, you to all of us when you. right you ex- Those the Declaration of desire to for each of them those citizens of a Invoking pursuit these from the consent of among among ator with certain *“ * ^[*] itself is a ^[*] principles, * ii rights, * [Tjhey Men, these are promote fledgling Happiness. purely Governments are instituted deriving are endowed however, unalienable Independence: Life, nation and to secure academic ideals articulated principles well-being their Liberty evolved out of a That to secure just powers Rights, governed, approach. their Cre- as an end and the light It is in the of these I claims that THE STATE OF WYOMING Handler, Jurisprudence borrow from and tragic Unfortunately, What a letter! Justice, 16 Hall L.Rev. Prudential Seton captures opinion the essence of the statement, somewhat vehemently court. I dissent. out of context: majority decision in this case is not “ * * * Indeed, as a constituent and vital necessary. The thesis that the reversal of part representative democratic the this conviction and conviction in the government, judiciary highly must be companion case is mandated constitu- feelings principles tional is correct. attuned to the needs and of its not Justice ably citizens; has summarized acutely Golden the law this it should be aware of companion Phillips, area case of and public’s perception general per- of its pleased join opinion I am to in his in this formance, particular as well as its deci- require- case. In terms of constitutional short, judiciary sions. In cannot be ments, these facts fit well within estab- to the reactions that its oblivious own lished limits. engendered actions have or the effects adjudications that its the reversal of have created within Since these convictions is required by precepts, society it serves.”

H3 anymore society reaction of the who was a victim isn’t a victim My perception rapist rapist any because the isn’t a this decision is best more.” serves to this court captured by parody. “Alice,” applauded. Rabbit White he said, you beginning appreci- “I think are to Carroll, respect to Lewis

With all due ate wonder of Wonderland.” episodes could be encom- that one classic in his marvelous Alice’s Ad- passed appropriate It is to consider some might well un- ventures Wonderland Solzhenitsyn wisdom of Aleksandr fold like this: Spiritual address entitled The Exhaustion West delivered commencement following guide, her Alice White University. exercises at Harvard Rabbit, busy through a street Wonder- remarks, Solzhenitsyn course of those said: pointed to man White Rabbit a land. “ * * * rights The defense of individual said, to “Alice, rapist.” used a that man has to reached such extremes as make Alice, piqued, replied her interest inno- against society as whole defenseless interesting. cently, did he “That When time, in It certain individuals. stop being rapist?” West, not so to defend much human “Well, see, responded, you White Rabbit rights obligations. as human it.” he didn’t do irresponsible “Destructive and freedom granted space. has been boundless Soci- “Well, Alice, asked, puzzled who if This ety against to appears have little defense it, you say how he used to he didn’t do can decadence, as, abyss such human rapist?” abe example, liberty misuse moral patiently, very White Rabbit answered against young people, violence motion “Alice, it, you that didn’t do must realize he crime pictures pornography, full of it, he do but because it not because didn’t part horror. It considered to be long say us he did it.” took too theoretically freedom counterba- said, “Well, I Alice She was amused. young people’s not to lanced I good suppose does make sense. do accept. organized look or not Life wonder, however, it took us how we knew legalistically thus shown inabil- long say too he did it so that it was clear against ity to evil. defend itself he do didn’t it.” saywe the dark “And what shall about criminality Legal realm of such? becoming a bit exas- White Rabbit was States) (especially in the frames United “Alice, some of perated, explained, he but encourage enough are broad private place rule our makers went to certain indi- freedom but also individual voted, days is they that 531 too decided culprit go unpun- can vidual crimes. pointed say They that he it. out did leniency with ished or obtain undeserved us general requiring rule that there is public support of thousands of de- and, days say he did it in 120 there- government When a starts an fenders. fore, if in at say don’t he did it least terrorism, public fight against earnest he didn’t do it.” days, sooner than 531 then opinion immediately accuses it of violat- “Oh,” is Alice, suppose that an said “I ing rights. There civil are the terrorists’ appropriate thing rule makers to for our many such cases. do, if was someone who but I wonder there in direction of a tilt of freedom the “Such rapist.” a victim when he used to be was it gradually, but was evil has come about pondered question White Rabbit that primarily out of a human- evidently born said, and then “I’m sure there a moment according concept to istic and benevolent he must because could have been victim is no evil inherent to human which there victim.” rapist without a have been mankind, nature; belongs world of life are caused frowned, bright- and the defects Alice then her face but all must be “Oh, then, wrong which cor- ened, said, systems I would social she though the that, Strangely enough, days, person rected. after 531 understand imposition questionable charges fol- achieved the conditions have been best social by incarceration trial. West, criminality and lowed without there still is considerably more it even is there difficulty supporting in I have no pauper and lawless Soviet than principle. I constitutional even have no pris- huge number society. There is a extending any difficulty it to criminal case. crimi- camps are termed oners in our who difficulty invoking that I is have with nals, never most of them committed but trial when it is not crime; merely tried to defend any they necessary prevent prejudice, actual but state against a lawless re- themselves instead, premised only application, is legal outside of a sorting to means upon assumption prejudice. In this added.) (Emphasis framework.” instance, suggest no one is able to that Harvey prejudice suffered actual in defend- understanding people is that My is no ing the case. There indication that Wyo- in the State of country people might help- any evidence which have been dissatisfied ming essentially with are process. him has been lost in the ful to they of criminals based what release Harvey was not incarcerated while await- I technicalities. know the perceive to be ing Consequently, only prejudice response is that this is not a immediate identified, might support that can be which significant technicality is a constitu- but remedy, the invocation of this drastic is the principle. tional assumption personal he suffered anxi- that principles applying constitutional such accusation, ety public over the suffered trial, however, it is as the movement, in- inhibition of his freedom interesting note that the true benefi- an adverse effect on his social rela- curred What ciaries are the lawless individuals. tions, possible difficulty in had some ob- States, in the United as Sol- has occurred taining employment, perhaps lived un- noted, is zhenitsyn perceptively has so suspicion. I der a cloud of doubt that a designed for the principles taken we have very suspicion cloud of troublesome to and invoked them people benefit of all the any question guilty, and we don’t have only encourage those who commit crime Harvey guilty. Harvey didn’t even forged they the result that have been that he anxious or suffered tell us inhibiting the lives of most into shackles aspect prejudice; other of the assumed people. other presume those effects. simply contemplate the appropriate It is then to opinion appears majority to faithful- in its historical set- principle Barker v. balancing test of ly follow the ting. I do not understand that there Wingo, U.S. empirical support the notion much data to adopted L.Ed.2d 101 which has been that, in the Unit- pre-revolutionary times court in other cases. It does so murderers, America, rapists, ed States because, properly ap- appearance any partic- other common criminals had balancing plied, the test does mandate having cases re- difficulty ular their per- I a reversal in this instance. am not Instead, people like solved. there were suaded, however, balancing test Solzhenitsyn, political alluded to by those articulated which has been trying to defend prisoners simply who were really addresses Court of the United States against of the themselves the lawlessness Scrutiny are involved. the interests which important Barker, king. Our forefathers deemed the cases have fol- test, the incarceration balancing to inhibit without demonstrates lowed the brought being individuals who were not was a that the concern of the court bal- question there was a serious ancing trial because interests any they against had committed of the trying as to whether the case the interest preserving constitutional right crime. The to a trial demands accused in in this right addressed with to a trial. Articulated that such accusations be fashion, balancing in- test assumes an political that enemies of the the dispatch so by dependent interest of the disenfranchised government cannot be

H5 assumption. The to be more than it I superficial be much serious was? to a seems interest, true, but its has it is have to understand that consti- an come those State rights from the common inter- did recognition interest derived not receive tutional behalf, the On their the society est of citizens. a in context of which crime protecting them from charged with rampant. The for adopting motive part on the of others and criminal conduct rights protect of those statements was to enforcing criminal statutes the government, citizens from excesses of logical considera- adopted to that end. they by not influenced the need to were of balancing a of this interest socie- tion is protect citizens from individuals were who in against interest of the accused ty the out of control. to a preserving the constitutional It does indeed seem a fair comment that perceive to be far and I that in freedoms articulated individual interest of the interest than the broader Rights applied Bill in this of have been having opportunity prosecution in to only for the of country benefit those who effectively case. try the life, deprive choose to others of themselves must be balanced interest which liberty, property concern without in against pre- of the accused interest of process philosophy, law. This due serving constitutional citizens, protecting of has contrib- instead society in is the interest which widespread uted to the lawlessness that we collective members from protecting its country. in this It is part witness Society particular in- has a criminal acts. parcel part a loss of on the of of freedom terest, again representing the interest of good those citizens who now must double members, seeing to the its collective in lock doors are of their and who fearful appropri- in an punishment of malefactors going on the streets of cities abroad our by is sacrificed ate fashion. This interest towns, only not in the darkness of majority simply in instance opinion this night Those brightness day. but in the of demonstrating the su- purpose for the of us in judicial department serve who and, in a pervisory authority this court as need to understand that decisions such sense, time articulating a maximum frame this, many ways, subtle have influenced rapists bringing defendants like these society. of crime our The crim- level to trial. perceive permissiveness in among inals us argument I am unfamiliar with this, they encouraged are like results necessary protect to the constitu- that it depredations. to further rights such as Har- tional of an individual principles If constitutional have these vey secure constitutional order to those society, justification in shouldn’t American My re- rights people. for the rest of the they interpreted and construed somehow be are sponse simply is: of what moment con- society are to end that interests rights to innocent victims stitutional those interests and against individual balanced that gang hooliganism warfare and purpose of simply for the academic erupted major of our cities? More one specifics defining the of broad constitution- are the consti- specifically, of what moment true, Indeed, may principles. al Harvey rights tutional victim suggests, socie- Solzhenitsyn that Western his cohorts if she cannot walk streets protect capacity itself ty has lost Springs having style of Rock without will I know there lawlessness. Why outrage is it inflicted her? but, course, many say who will Harvey necessary set free order part lawlessness on includes principle that is establish I government. Unfortunately, am not able when, so, recognized in order do well part perceive lawlessness perceived Harvey can prejudice to per- I government can this instance. speculation, not the examination of a failure negligence. perceive I can ceive hospital emergency room nor physician in a records, establish, as a matter of court police perceptions of officers who were potential reasons that these trials interrupted all a crime had perceive I delayed. can an earnest effort justice system criminal pur- invoked and by prosecutors bring justice of bar sued than individual or response. mob If perpetrators all three of the of outrage this happen, however, that is to then the crimi- upon lady. this But lawlessness in justice system nal must have an accurate way comparable to the conduct role, of these attempts vision of its and the to satis- absent, simply defendants is fy and there is ingenious arguments innovative and really nothing to regard. balance that of perhaps academicians yield must pragmatic more solutions.

In the interest of academic consideration right trial, of the constitutional to a recognize I dissenting opinions that have bogeyman we have structured a govern- no force in establishing the rules of law. destroy mental lawlessness. We then My that philosophical response simply is de- bogeyman interests, say, signed plain to make it that the tender necessary. feelings citizens. That is not Perhaps rapists, murderers, and other problem we can deal with one at a time. common criminals should not pri- be the problem present mary in this instance concern of the judiciary. society If any progress commission of a vicious to make crime Har- in developing a vey. My judgment stance my reason which will offer prospect lead me some society law-abiding to conclude enjoy should citizens will assure Har- freedom vey just from the fear genesis desserts for that has its his criminal con- When, if, governmental others, duct. unconscionable criminal conduct of lawless- society then forge justice. needs to present, ness becomes Justice we can address that should priority have unnecessary as the over the occasion demands. The evil which effort to elucidate principles. constitutional cries out to be addressed in our time is crime in society. I would affirm the conviction. judiciary country this has come to GOLDEN, Justice, with whom be criticized because releases those THOMAS, J., joins. guilty of crime based technicalities. I product When witness the of this I your I envision cap- attention would be deny cannot majority, that claim. The if tured the headline on tomorrow’s news- purpose the sole achieving paper screamed, an academic “Children Devour Par- articulation of the concept constitutional ent.” That may headline become reality deprived majority’s because of the decisions this citizen Wyoming protection case and companion Phillips case of judicial our system should afford her. It (Wyo.1989). 774 P.2d 118 These two has set clearly guilty free two perpetrators decisions delinquent are the children of the of a perceive sexual I assault. parent that as case of Wingo, Barker v. imbalance, constitutional product and the 33 L.Ed.2d 101 application princi- constitutional majority’s With the help these two children ples designed protect the freedom just of all have parent. devoured their In the citizens has been to set guilty free the gruesome meal, same they have also de- leave the victim without recourse. voured the doctrine of stare decisis. Here is how this parricidium cannibalistic hap- The next already being act played pened. places some around country. Citizens, having lost confidence in ability parent will- In the case of Barker the United ingness of the system pro- States Court established a four- crime, tect them from begun pur- part balancing appellate test for review of vigilante sue approaches. ingen- Given alleged speedy trial violations. In applying capacity ious judges to find reasons to that test to Willie Barker’s factual situa- free, set the guilty perhaps tion, the citizens the primary consequence facts of should not severely blamed. On the nearly which were years’ delay five hand, other the “Oxbow Incident” complaint was not criminal pro trial and several happy story, and it is far better that the forma assertions of his

H7 pretrial majority deciding the a nearly ten months of incarcera- Willie Barker-like and today, majority would tion, highest court found that case reverse Wil- the nation’s Barker’s on speedy lie conviction trial speedy trial had Willie Barker’s Thus, very gave grounds. case of mur- Barker’s conviction been violated. balancing birth to the test de- would be resulting life sentence were not his der and stroyed by newspaper test. same reversed, and not freed. he was scream, could headline then “Twin Brother Phillips, acting Harvey Mr. to- Mr. and Devours Parent.” gether, kidnapping committed their sexual Although not an identical twin to its com- Wyoming. They were convicted assault case of panion Phillips v. this case is they after jury peers of their what by a virtually the same as that one. Whatever They, essentially a fair admit was factual difference exists between two Barker, speedy claimed their tri- like Willie is, practical purposes, for all intents and They, rights al were violated. unlike Wil- legally meaningless. precise, To be Barker, are free. lie now only factual is this: Phil- difference Unlike Harvey’s Mr. and Mr. applying In lawyer lips’ who did not assert his client’s consequence facts of the same bal- Phillips’ days trial until nineteen be- analyze ancing test used to Willie Barker’s trial, Harvey’s lawyer Mr. fore made two predicament, majority has achieved litiga- pro assertions earlier in the forma only inspired as can be described what Placing proper tion. these assertions application the doctrine stare decisis. perspective, the record shows he did not term means that like cases This latín right during one-year period assert course, Mr. alike. Of should be decided from the date com- on which criminal Phillips’ conse- Harvey’s and Mr. facts of filed, 9, 1986, January until Jan- plaint was quence quite were not the same as Willie date, uary the latter he filed On delayed trial Barker’s. Willie Barker’s motion to dismiss on trial years, Harvey’s Mr. nearly Mr. and five grounds, request but chose not to a hear- only Phillips’ eighteen months. Willie days, that ing sixty on that motion. After nearly pretrial ten Barker suffered months’ 301, Uni- motion is deemed denied. Rule incarceration; Harvey Phillips and Mr. Mr. form Rules for the District Courts of several none. Barker made suffered Willie Wyoming. February On assertions, pro pretrial speedy trial forma Harvey joined with Mr. Phillips made none. Harvey; did Mr. Mr. as investigation. requesting presentence and Barker’s conviction was affirmed Mr. filed a April he second On serving life Mr. is now his sentence. he dismiss, again chose not trial motion to but Harvey’s Phillips’ convictions were Mr. days, request hearing. sixty After roaming the they are now reversed Rule that motion deemed denied. Wyoming free men. Since streets Rules for the District Courts Uniform consequence to the Barker’s facts Willie day Wyoming. Finally, on the State test, balancing any objective measure- Phillips’ with Mr. joined he before ment, than Mr. conspicuously worse were support pro of the latter’s brief forma Phillips’, you natu- Harvey’s and Mr. would grounds. motion to dismiss would decided rally think these cases view, reading of my upon my based in Mr. majority But the court alike. Barker, asser- Harvey’s speedy Mr. Phillips’ Harvey’s and Mr. cases invokes Harvey and pure are Mr. pro tions forma. fiction, presumption, or hold oth- judicial peas same Phillips from the Mr. are two erwise. pod. of the differences between disturbing

Mindful is that Perhaps most holding in States Court’s in its United in this analysis and result majority’s holdings in Har- to me Phillips, and this indicate companion Barker case logically these trying one can to use vey Phillips, majority message district inspired, crea- yet opinions to send a majority’s conclude They presided the trial. tive, bal- over application judge of the Willie Barker who judge that district apparently were want ancing test dictates an absurd result: colleagues on the district court bench in Wyoming, majority to know that a slim PHILLIPS, William Everett willing arbitrarily court is invoke its Appellant (Defendant), supervisory powers pair to free a of men they fairly admit

who were convicted of kidnapping assault, and sexual and turn Wyoming, The STATE of people Wyoming them loose on the aas (Plaintiff). Appellee “appellate penalty” kind of delays prosecutions. in these What majority No. 87-283. really saying justify here its ends Supreme Court of Wyoming. extreme and unwarranted means with castigate it has chosen to the district 5,May 1989. type court. That of action is not proper applicable

under law Barker in these Rehearing Denied June 1989. cases, and is generally befitting highest Wyoming. court of the State of

I majority fear that the suddenly lost sight of really what is before it in this case question in Phillips. There is no pretrial delay

excessive is undesirable. justices

None on this court condone pretrial delay sense;

excessive in any never part meant to abe of our crimi- justice system.

nal The abstract merit of pretrial delay, however,

excessive is not issue in appeal this nor was it the issue Phillips. Also not at issue in these

appeals is the 120-day effect limit

imposed by Uniform District Court Rule fact, according Barker,1

204.

probably an people issue for the Wyo-

ming speaking through legislature. their issue us in before these cases is give analysis

whether will substantive factors identified Barker way

same United States did in I

Court that case. am convinced the

majority has do failed to that.

What I in my said dissent in the Phillips applies equally Harvey.

case well Mr. incorporate

By reference I the Phillips

dissent here. If Willie Barker ever reads decisions, majority he

these will sure wish Wyoming.

he had lived in respectfully

I dissent. “We holding period find no constitutional basis for able dards, Barker, consistent constitutional stan- quantified can be approach precise.” into but our must be less specified days number of or months. at states, course, prescribe are free to a reason- L.Ed.2d at 113.

Case Details

Case Name: Harvey v. State

Court Name: Wyoming Supreme Court

Date Published: May 5, 1989

Citation: 774 P.2d 87

Docket Number: 87-274

Court Abbreviation: Wyo.