Georgia criminal defense attorney Ben Sessions discusses how to effectively present and argue motions to dismiss based upon constitutional speedy trial violations in Georgia.

1. Constitutional Speedy
Trial Violations
Ben Sessions!
The Sessions Law Firm, LLC!
Atlanta, Georgia !
Ben@SessionsCriminalDefense.com!
(678) 314-9443 (Cell)!
(470) 225-7710!
@Ben_Sessions!

3. Why it the constitutional speedy issue so powerful?
[I]t should also be recognized that the United States Supreme Court has held that “‘the only
possible remedy’” for a constitutional speedy trial violation is dismissal of the indictment with
prejudice. Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973)
(quoting Barker v. Wingo, 407 U.S. at 522, 92 S.Ct. 2182). See Akhil Reed Amar, Sixth Amendment
First Principles, 84 Geo. L.J. 641, 645 (1996) (recognizing this strict rule and describing it as “the
mother of all upside-down exclusionary rules,” which “provides a windfall for the guilty while leaving the
innocent defendant ... uncompensated”). The trial court may take aggressive action to safeguard the
public interest and preclude a speedy trial violation, see Weis v. State, 287 Ga. 46, 694 S.E.2d 350
(2010), and the District Attorney has the authority to dismiss the death penalty notice, if that will make
adequate funding available to the defense and allow for a speedy trial of this case. Once a constitutional
speedy trial violation is found to exist, however, the remedy will be dismissal of the case.
Phan v. State, 287 Ga. 697, 701, 699 S.E.2d 9, 12 (2010) adopted, (Ga. Super. June 17, 2011)

4. Learning to tame the “giants”
We have to learn to play to our
strengths and use a full-court press.
Malcolm Gladwell, David and
Goliath: Underdogs, Misfits, and the
Art of Battling Giants

5. Ben’s scorecard. Yes, I’m really that bad.
Articulable suspicion motions = 0
Probable cause motions = 1
Trials: Wins = ?; Losses = way too many to count
Constitutional speedy motions = a lot

6. What is the basis for this issue?
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 defence.
U.S. Const. Amend. VI
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The template for deciding all constitutional speedy trial claims under the Sixth Amendment and the
Georgia Constitution is laid out in the 1972 case of Barker v. Wingo and the 1992 decision in
Doggett v. United States, which is to date the Supreme Court's last detailed discussion of the topic.
Ruffin v. State, 284 Ga. 52, 55, 663 S.E.2d 189, 195 (2008) (citations omitted).

7. Basics of the constitutional speedy
In the first stage of the analysis, the court must determine whether the pretrial delay is
sufficiently long to be considered presumptively prejudicial. The pretrial delay is measured from
the accused's arrest, indictment, or other formal accusation [whichever comes first-see Boseman
v. State] to the trial or, if the accused files a motion to dismiss the indictment, until the trial court
denies the motion. If the delay has passed the point of presumptive prejudice, the court must
proceed to the second step of the Barker-Doggett analysis, which requires the application of a
delicate, context-sensitive, four-factor balancing test to determine whether the accused has been
deprived of the right to a speedy trial.
Grizzard v. State, 301 Ga. App. 613, 614, 688 S.E.2d 402, 405 (2009)

8. If you have reach the point “presumptive prejudice”, the court
proceeds to the substantive speedy trial analysis.
The analysis has two stages. First, the court must determine whether the interval from the
accused's arrest, indictment, or other formal accusation to the trial is sufficiently long to be
considered “ presumptively prejudicial.” If not, the speedy trial claim fails at the threshold. If,
however, the delay has passed the point of presumptive prejudice, the court must proceed to
the second step of the Barker-Doggett analysis, which requires the application of a delicate,
context-sensitive, four-factor balancing test to determine whether the accused has been
deprived of the right to a speedy trial.
Ruffin v. State, 284 Ga. 52, 55, 663 S.E.2d 189, 195 (2008) (citation omitted).

9. Basics of the constitutional speedy analysis
The analysis has two stages. First, the court must determine whether the interval from the
accused's arrest, indictment, or other formal accusation to the trial is sufficiently long to be
considered “ presumptively prejudicial.”If not, the speedy trial claim fails at the threshold. If,
however, the delay has passed the point of presumptive prejudice, the court must proceed to the
second step of the Barker-Doggett analysis, which requires the application of a delicate, context-
sensitive, four-factor balancing test to determine whether the accused has been deprived of the
right to a speedy trial.
Ruffin v. State, 284 Ga. 52, 55, 663 S.E.2d 189, 195 (2008) (citations omitted).

10. What is the point at which “presumptive prejudice” arises?
The length of the delay is to some extent a triggering mechanism. Until there is some delay
which is presumptively prejudicial, there is no necessity for inquiry into the other factors that
go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the
length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar
circumstances of the case. To take but one example, the delay that can be tolerated for an
ordinary street crime is considerably less than for a serious, complex conspiracy charge.
Barker v. Wingo, 407 U.S. 514, 530-31, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972)
(citations omitted).

12. How much time is “presumptively prejudicial”?
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For serious crimes such as murder that do not involve unusual complexities-e.g., a
decision by the State to seek the death penalty, allegations of a vast interstate conspiracy,
or the involvement of a sophisticated crime syndicate-one year generally marks the point
at which expected deliberateness in the prosecution of a criminal matter turns into
presumptively prejudicial delay.
Ruffin v. State, 284 Ga. 52, 55, 663 S.E.2d 189, 195 (2008) (citation omitted).

13. What is not a speedy trial violation?
We do not establish procedural rules for the
States, except when mandated by the
Constitution. We find no constitutional
basis for holding that the speedy trial
right can be quantified into a specified
number of days or months. The States, of
course, are free to prescribe a reasonable
period consistent with constitutional
standards, but our approach must be less
precise.
Barker v. Wingo, 407 U.S. 514, 523, 92 S.
Ct. 2182, 2188, 33 L. Ed. 2d 101 (1972).

14. The Barker-Doggett 4-factor balancing test
The four factors that form the core of the constitutional speedy trial balancing test are:
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(1) whether the delay before trial was uncommonly long,
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(2) whether the government or the criminal defendant is more to blame for that delay,
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(3) whether, in due course, the defendant asserted the right to a speedy trial, and
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(4) whether he or she suffered prejudice as the delay's result.
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None of the Barker-Doggett factors is either a necessary or sufficient condition to the finding of a deprivation of the right of
speedy trial. The four factors emphasized in Barker and Doggett do not constitute an exhaustive list; they have no
talismanic qualities and must be considered together with such other circumstances as may be relevant given the animating
principles behind the speedy trial guarantee. Thus, the second stage of the constitutional speedy trial analysis requires
courts to engage in a difficult and sensitive balancing process and necessarily compels them to approach speedy trial cases
on an ad hoc basis.
Grizzard v. State, 301 Ga. App. 613, 615, 688 S.E.2d 402, 405-06 (2009)

15. Was the length of delay uncommonly long?
Excessive delay has a tendency to compromise the reliability of trials in ways that neither party can prove
or, for that matter, identify. Thus, while a lengthy pretrial delay cannot support a finding of a speedy trial
violation without regard to the other three Barker-Doggett criteria, it is part of the mix of relevant facts,
and its importance increases with the length of delay. The length of the pretrial delay in absolute terms
plays a role in the threshold determination of presumptive prejudice. However, it also wears another hat
as one of the four interrelated criteria that must be weighed in the balance at the second stage of the
Barker-Doggett analysis.
(Punctuation and footnotes omitted; emphasis supplied.) Id. at 56(2)(b)(i), 663 S.E.2d 189. A delay of
almost four years in a DUI case strikes us as excessive, especially in the absence of any indication that
the case was unusually complex
State v. Reid, 298 Ga. App. 235, 238, 679 S.E.2d 802, 806-07 (2009)
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16. Two years, two months, and twenty-three days is an exceptionally long time to keep a
presumptively innocent person in jail on the strength of nothing more than a grand jury's finding
of probable cause, even where the top count of the indictment is murder.
Ruffin v. State, 284 Ga. 52, 57, 663 S.E.2d 189, 196 (2008)
The pretrial delay in this case far exceeds the one-year benchmark for presumptive
prejudice, and it is unusual even in comparison with other non-capital murder cases.
Ruffin v. State, 284 Ga. 52, 58, 663 S.E.2d 189, 197 (2008)
Was the length of delay uncommonly long?

17. Reasons for the delay
There is no evidence that the State intentionally caused the delay or sought to undermine Takyi's
defense. Rather, the State admitted that it could not locate Takyi's case, citing budget cuts and
limited staffing. However, “unreasonable delay in run of the mill criminal cases cannot be
justified by simply asserting that the public resources provided by the State's criminal justice
system are limited and that each case must await its turn.” Hayes v. State, 298 Ga.App. 338,
345(2), 680 S.E.2d 182 (2009) (citation and punctuation omitted). Where the State gives no
reason for the delay, other than its own negligence, this factor is weighed lightly against the
State. See Sweatman v. State, 287 Ga. 872, 875, 700 S.E.2d 579 (2010); Ruffin, 284 Ga. at
61, 663 S.E.2d 189.
Moreover, the trial court properly attributed to the State the additional 28–month delay between
its original grant of Takyi's motion to dismiss and its second grant of the same. See
State v. Takyi, 322 Ga. App. 832, 837, 747 S.E.2d 24, 29 (2013).

18. Weighing the reasons the State uses to justify the delay
Closely related to length of delay is the reason the government assigns to justify the delay. Here,
too, different weights should be assigned to different reasons. A deliberate attempt to delay the
trial in order to hamper the defense should be weighted heavily against the government. A
more neutral reason such as negligence or overcrowded courts should be weighted less
heavily but nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant. Finally, a
valid reason, such as a missing witness, should serve to justify appropriate delay.
Barker v. Wingo, 407 U.S. 514, 531, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972)
(citations omitted).
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19. Reasons for the delay: interlocutory appeals
“Although the passage of time is not alone sufficient to sustain a speedy trial claim, greater
pretrial delays simultaneously increase the degree of prejudice presumed and decrease the
expectation that the defendant can demonstrate tangible prejudice to his or her ability to present a
defense.” Williams v. State, 277 Ga. 598, 601, 592 S.E.2d 848 (2004). This interlocutory
appeal has taken nearly a year to resolve, and the trial court on remand should decide to which
party that delay should be attributed. But in evaluating the presumptive prejudice that is caused
simply by the passage of time, courts look to the total elapsed time since the defendant's speedy
trial rights attached, and that time is increasing with every passing day. In short, after this case is
remanded, time will not be on the State's side, and the trial court and the parties should be keenly
aware that the difficult and close questions this case raises will need to be addressed with alacrity.
Phan v. State, 287 Ga. 697, 701, 699 S.E.2d 9, 12 (2010) adopted, (Ga. Super. June 17,
2011)

20. Assertion of the constitutional right to a speedy trial
We have already discussed the third factor, the defendant's responsibility to assert his right.
Whether and how a defendant asserts his right is closely related to the other factors we have
mentioned. The strength of his efforts will be affected by the length of the delay, to some extent
by the reason for the delay, and most particularly by the personal prejudice, which is not always
readily identifiable, that he experiences. The more serious the deprivation, the more likely a
defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to
strong evidentiary weight in determining whether the defendant is being deprived of the right.
We emphasize that failure to assert the right will make it difficult for a defendant to prove that he
was denied a speedy trial.
Barker v. Wingo, 407 U.S. 514, 531-32, 92 S. Ct. 2182, 2192-93, 33 L. Ed. 2d 101 (1972)

21. Assertion of the right to a speedy trial: does failure to failure to
demand operate as a waiver?
We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his
right. This does not mean, however, that the defendant has no responsibility to assert his right. We
think the better rule is that the defendant's assertion of or failure to assert his right to a speedy trial is
one of the factors to be considered in an inquiry into the deprivation of the right. Such a formulation
avoids the rigidities of the demand-waiver rule and the resulting possible unfairness in its application. It
allows the trial court to exercise a judicial discretion based on the circumstances, including due
consideration of any applicable formal procedural rule. It would permit, for example, a court to attach a
different weight to a situation in which the defendant knowingly fails to object from a situation in which
his attorney acquiesces in long delay without adequately informing his client, or from a situation in
which no counsel is appointed. It would also allow a court to weigh the frequency and force of the
objections as opposed to attaching significant weight to a purely pro forma objection.
Barker v. Wingo, 407 U.S. 514, 528-29, 92 S. Ct. 2182, 2191, 33 L. Ed. 2d 101 (1972) (citations
omitted).

22. Assertion of the right: how do we do it?
It would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a
purely pro forma objection.
Barker v. Wingo, 407 U.S. 514, 528-29, 92 S. Ct. 2182, 2191, 33 L. Ed. 2d 101 (1972) (citations omitted).
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* YELL AT ME IF I DON’T DISCUSS IMPORTANT STRATEGIC CONSIDERATIONS FOR CASES BEING BOUND
OVER TO A STATE/SUPERIOR COURT.
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23. Establishing prejudice in the constitutional speedy context
Prejudice, of course, should be assessed in the light of the interests of defendants which the
speedy trial right was designed to protect. This Court has identified three such interests: (i)
to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the
most serious is the last, because the inability of a defendant adequately to prepare his
case skews the fairness of the entire system. If witnesses die or disappear during a
delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable
to recall accurately events of the distant past. Loss of memory, however, is not always
reflected in the record because what has been forgotten can rarely be shown.
Barker v. Wingo, 407 U.S. 514, 532, 92 S. Ct. 2182, 2193, 33 L. Ed. 2d 101 (1972)
(citation omitted).

24. Specific issues relating to prejudice: late amendment

25. Specific issues relating to prejudice: destruction of samples

26. Specific issues relating to prejudice: destruction of samples

27. Specific issues relating to prejudice: pre-trial incarceration
However, we disagree with the trial court's determination that there was no evidence of prejudice for the period
of time that Leopold subsequently served in jail after his release. The record shows that Leopold was later
arrested for an unrelated probation violation, and as a result, was held in the DeKalb County jail from
December 18, 2008 until the start of his trial. Leopold argues that the delay in this case caused him to lose the
possibility of serving this sentence concurrently with the nine months he served on his sentence for the
probation violation. This Court has previously recognized that with respect to a defendant incarcerated on
other charges, a delay in bringing such a person to trial may be prejudicial because the defendant may
forego the opportunity to receive a sentence that is at least partially concurrent with the one he is serving.
Johnson, 313 Ga.App. at 904(2)(d), 723 S.E.2d 100 (citing Smith v. Hooey, 393 U.S. 374, 378, 89
S.Ct. 575, 21 L.Ed.2d 607 (1969)). Thus, the trial court erred in failing to consider this factor. However,
our Supreme Court has consistently held that “when a defendant is already incarcerated for unrelated offenses,
there is minimal possibility of oppressive pretrial incarceration.” See Williams, 279 Ga. at 109(1)(d), 610 S.E.
2d 32 (citing cases).
Leopold v. State, No. A15A0783, 2015 WL 5238136, at *5 (Ga. Ct. App. Sept. 8, 2015) (emphasis added).

28. And with respect to the impairment of his defense, Leopold argues that had Blackford not testified at trial, the testimony of
two defense witnesses as to allegedly exculpatory statements made by Blackford would have been uncontroverted.
However, Leopold provides no citation to authority to support his argument that the State's inability to locate and present
testimony from Blackford in order to make its case is the type of prejudice the Barker factors are designed to address, and
we find none. The record confirms that Leopold was able to present evidence in support of his defense, he does not argue
that the delay prevented him from obtaining any evidence or testimony, and his only contention is that the delay
strengthened the State's case, to his detriment. See Robinson v. State, 287 Ga. 265, 269(1)(d), 695 S.E.2d 201 (2010)
(prejudice factor does not weigh in the defendants' favor where “no witnesses have died or disappeared; there is no
evidence that witnesses have lost their memories; and the defense strategy remained unchanged”). Cf. Johnson, 313
Ga.App. at 905(2)(d)(iii), 723 S.E.2d 100 (if a witness that could supply material evidence for the defense dies or
disappears during the delay, prejudice may be established). Moreover, the State's need to locate a missing witness whose
testimony is required for trial is one of the specific reasons recognized by the United States Supreme Court that may justify
a delayed trial. See Barker, 407 U.S. at 531, 92 S.Ct. 2182 (“[A] valid reason, such as a missing witness, should serve to
justify appropriate delay.”).
Leopold v. State, No. A15A0783, 2015 WL 5238136, at *5 (Ga. Ct. App. Sept. 8, 2015) (citation omitted).
Specific issues relating to prejudice: inability to produce
witnesses - THINK STRATEGICALLY ABOUT THIS ISSUE

29. Regarding anxiety and concern, the trial court found that Takyi suffered unusual and extreme anxiety
and emotional pain due to her uncertain immigration status, such that she was “frightened that at any
time her unresolved immigration status could force her to leave the U.S.” The trial court heard
testimony from Takyi and her attorneys about the actions they took regarding her pending citizenship
application and the emotional impact the attorneys understood the situation to have on Takyi.
Takyi, 314 Ga.App. at 448(1), 724 S.E.2d 459. On remand, the trial court, explicitly disregarding
hearsay and relying exclusively on the uncontradicted testimony of Takyi and her attorneys, found that
Takyi suffered an unusual amount of stress and anxiety due to the delayed resolution of her case.
Because it ignored the hearsay identified in the prior appeal to reach its decision, the trial court
properly exercised its discretion in weighing the final factor slightly in Takyi's favor.
State v. Takyi, 322 Ga. App. 832, 838-39, 747 S.E.2d 24, 30 (2013)
Specific issues relating to prejudice: anxiety and concern
suffered by the Defendant

30. Basics of the balancing test for the constitutional speedy trial
right
We regard none of the four factors identified above as either a necessary or sufficient condition to the
finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be
considered together with such other circumstances as may be relevant. In sum, these factors have no
talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But,
because we are dealing with a fundamental right of the accused, this process must be carried out with
full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution.
Barker v. Wingo, 407 U.S. 514, 533, 92 S. Ct. 2182, 2193, 33 L. Ed. 2d 101 (1972) (citations
omitted).

31. Where do we lose?
[W]ith respect to the Barker v. Wingo analysis, it should be recognized that delayed assertion of
the right to a speedy trial and lack of prejudice are the two factors that most often weigh heavily
against defendants and which then support the overall conclusion that speedy trial rights have not
been violated.
Phan v. State, 287 Ga. 697, 700, 699 S.E.2d 9, 12 (2010) adopted, (Ga. Super. June 17,
2011)

32. Want my slides? Want to ask me ridiculously complex
constitutional speedy trial questions?
That’s completely cool, but do me a solid and follow me
on Twitter: @Ben_Sessions!
I’ll post links to slides there. !