Speedy trial courts

Why they are legal in a judicial system

 

Amid the hullaballoo emanating from certain quarters trashing speedy trial courts as a step against democracy, the prime minister announced the ambit of work for these courts. Quoting from a local daily, “Only terrorism cases to be sent to speedy trial courts… All institutions will carefully scrutinise cases before prosecution in the special military tribunals.”

The focus of all those opposing the setting up these courts should be upon dealing with terrorism. If special courts are set up to facilitate this goal, then why such opposition? If those opposing try to do a bit of research and reading, they will find out that even the Constitution of USA vide the Sixth Amendment offers the following provision:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Speedy trial is a right of those being tried criminally and bails may not be granted or if granted restrict the movement of the accused.

The history of speedy trials dates back to ancient times as a liberty of the accused. According to a paper on speedy trial:

“The right to a speedy trial is an ancient liberty. During the reign of HENRY II (1154–1189), the English Crown promulgated the Assize of Clarendon, a legal code comprised of 22 articles, one of which promised speedy justice to all litigants. In 1215 the Magna Carta prohibited the king from delaying justice to any person in the realm. Several of the charters of the American colonies protected the right to a speedy trial, as did most of the constitutions of the original 13 states.”

According to John J Bradley “Most jurisdictions in the US have defined ‘speedy trial’ to be within 75 days of the person’s arrest. This constitutional guarantee is for the protection of both the defendant and society, since persons in jail must be supported at considerable public expense and if a guilty person is mistakenly released, they may commit other crimes.” (February 26, 2013)

According to the Cornell University Law School on Sixth Amendment, “The right to a speedy trial may be derived from a provision of Magna Carta and it was a right so interpreted by Coke.” (Reference to Coke: “We will sell to no man, we will not deny or defer to any man either justice or right.” Ch 40 of the 1215 Magna Carta, a portion of ch 29 of the 1225 reissue. Klopfer v North Carolina, 386 US 213, 223–24 (1967))

It is no secret the cases in the courts can run for years without reaching a closing. Mail Online India reports, “A 37-year-old criminal case pending trial before a Delhi court recently drew the attention of the nation towards inordinate judicial delays with the accused approaching the Supreme Court seeking a quietus to the protracted trial.

But what went unnoticed is the fact that the court refused to acknowledge paucity of judges, huge pendency, inefficient administration and other systemic faults as factors impinging upon the fundamental right to a speedy trial. It goes without saying that a person cannot be allowed to take advantage of his own wrong but to penalise him for the fault of another defies logic.”(Published August 12, 2014)

What we need to address is to correct the fault lines within our judicial system.

The Michigan Law Review in its paper published in 2013 titled “Speedy Trial as a Viable Challenge to Chronic Underfunding in Indigent-Defense Systems” by Emily Rose, states, “In Barker v Wingo, the Court, warning that the speedy trial right is “amorphous,” “slippery,” and “necessarily relative”, rejected a fixed time period for determining a violation of speedy trial and adopted instead a flexible “balancing test, in which the conduct of both the prosecution and the defendant are weighed” on an ad hoc basis. Rather than focusing only on a set length of time, a proper balancing test was required to include (1) the length of delay, (2) the reason for delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. No single factor is necessary or sufficient for finding a deprivation of speedy trial, and other circumstances may still be relevant. And yet court rulings since Barker show that the test may effectively be used to challenge many of the delays common to indigent criminal cases.”

Let’s discuss these benchmarks a little further. The first benchmark is delay of time. If there is a delay of inordinate time it becomes “presumptively prejudicial”, commented upon in theUnited States vs Thaxton case as follows, “As the United States Supreme Court has explained, this latter inquiry is significant to the speedy trial analysis because the presumption that pretrial delay has prejudiced the accused intensifies over time. It is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage of the Barker–Doggett analysis.”

The second is reason for delay. The prosecution may delay trial to suit itself or the defendant may do the same to simply buy time. Both do not exist in speedy trial courts.

The third is time and manner in which the defendant asserts the right. In the case above quoted i.e., United States vs Thaxton, the judgement says, ““The trial court recognised that the failure to assert the speedy trial right weighs heavily against the defendant. Although Thaxton complained of the pre-indictment delay, the trial court’s order noted that Thaxton had not asserted his right to a speedy trial throughout that period of time. The record reflects that Thaxton did not assert his right to a speedy trial motion for discharge and acquittal on February 15, 2010, which was almost 16 months after his arrest.”

The fourth is the degree of prejudice accruing to the defendant which the delay caused. Ruling in the Barker case clearly lays down, “That prejudice should be assessed in light of the interests that speedy trial is intended to protect: (1) preventing oppressive pretrial incarceration, (2) minimising the accused’s anxiety and concern, and (3) limiting the possibility that the defence will be impaired. The clock begins running against the government after “arrest, indictment, or other official accusation” triggers it.” (Emily Rose in the Michigan Law Review in its paper published in 2013 titled “Speedy Trial as a Viable Challenge to Chronic Underfunding in Indigent-Defense Systems”)

So those who oppose the speedy trial courts do so in my opinion without knowledge. Legal or otherwise.

The writer is a lawyer, academic and political analyst. She has authored a book titled ‘A Comparative Analysis of Media & Media Laws in Pakistan.’ She can be contacted at: yasmeenali62@gmail.com and tweets at @yasmeen_9.

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