Motion to Dismiss for Violation of the Right to a Speedy Trial

FACTUAL BASES REFLECTING A VIOLATION OF THE RIGHT TO A SPEEDY TRIAL
1. A Tarrant County Grand Jury indicted Ms. Amaker on July 8, 1996.
2. A Warrant for Ms. Amaker’s arrest was not issued until July 1, 1998.
3. Notwithstanding that the warrant for Ms. Amaker’s arrest had not yet been served, this charge was placed on this Court’s docket for July 22, 1998.
4. Subsequent to the first court proceeding, this charge lay dormant and no other court proceedings were held until the Spring of 2001 when Ms. Amaker was arrested on the 1998 warrant.

5. The allegations contained in the indictment assert that Ms. Amaker tampered with government documents in the course of applying for and receiving public assistance.
6. The Texas Department of Human Services referred this matter to the District Attorney for prosecution.
7. In 1997, the Texas Department of Human Services asked Ms. Amaker to give a statement regarding her eligibility for benefits.
8. Though Ms. Amaker’s whereabouts were known to the very agency referring this matter for prosecution—Ms. Amaker continued to receive public assistance throughout 1998 and again beginning in the Spring of 2000—no efforts were made to locate her and execute this warrant.

LEGAL AUTHORITIES REQUIRING DISMISSAL OF THIS INDICTMENT
The right to a speedy trial is guaranteed by the Sixth Amendment as applied to the states by the Fourteenth Amendment. In addition, Article I, § 10 of the Texas Constitution [and Article 1.05 of the Code of Criminal Procedure] guarantee[] the accused in all criminal prosecutions the right to a speedy public trial. Although the Texas and Federal rights to a speedy trial are separate and distinct, interpretation and application of the Sixth Amendment right to a speedy trial by the Federal courts has served as a useful guide to the interpretation of the Texas constitutional right to a speedy trial by Texas courts.

Chapman v. State, 744 S.W.2d 133, 135 (Tex. Crim. App. 1988) (citations omitted).

Accordingly, Texas Courts review the depravation of the right to a speedy trial under the four-factor test promulgated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). See Chapman, 744 S.W.2d at 136. These factors are (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) the prejudice to the defendant resulting from the delay. See id. (citing Barker, 407 U.S. at 531). In the present case, all four factors require a dismissal of this indictment.

1. The length of the delay in this case is presumptively unreasonable.
The right to a speedy trial attaches at the time the defendant is formally charged or accused. Chapman, 744 S.W.2d at 136. While there is no set time or period that violates a defendant’s right to a speedy trial, any delay over 2 ½ years is presumptively unreasonable. See id. In fact, most delays of eight (8) months or more are presumptively unreasonable. See United States v. Marion, 404 U.S. 307, 313 (1971).
Ms. Amaker has suffered a delay of almost five (5) years—double the delay the Court of Criminal Appeals finds to be presumptively unreasonable and seven (7) times the delay the United States Supreme Court has said may be unreasonable. Therefore, we must consider the other Barker v. Wingo factors.

2. No valid reason justifies the delay in this case.

“The primary burden is on the prosecution and the courts to insure that defendants are speedily brought to trial. Both the trial court and prosecution are under a positive duty to prevent unreasonable delay.” Chapman, 744 S.W.2d at 136–37 (citations omitted). Moreover, even a delay caused by the prosecution’s negligent handling of the case does not excuse a violation of a defendant’s speedy trial rights. Even when “the State’s failure to notify [the defendant] and afford him the right to demand a speedy trial was not intentional. . . . [T]he speedy trial right is too important to sanction neglect, even if non-wilful.” Phillips v. State, 650 S.W.2d 396, 400 (Tex. Crim. App. 1983); Prescott v. State, 696 S.W.2d 693, 695 (Tex. App.—Fort Worth 1985), rev’d on other grounds, 744 S.W.2d 128 (Tex. Crim. App. 1988). In Phillips, the State attempted to excuse its failure to serve a warrant on the defendant for more than a year based on the Sheriff’s department’s believing the warrant had come from a different court, the warrant’s not having sufficient information to facilitate its service, and the Sheriff’s department’s not having received the defendant’s “rap sheet” until after the defendant was arrested on the charge at issue. Further, the prosecutor claimed he had exhausted all efforts to locate the defendant. See id. at 399–400. However, the Court of Criminal Appeals found these reasons woefully insufficient to justify the delay. In that regard, the Court noted that the district attorney’s office had the defendant’s “rap sheet” in its own files and the record failed to identify what—if any—exhaustive efforts were taken to locate the defendant. See id. at 400. Moreover, the defendant’s location should have been readily identified as he was in federal custody when the warrant was issued. See id. at 398–99.

In the present case, several facts demonstrate the State’s—at minimum—gross negligence in causing the five (5) year delay in this case. First, the warrant was not issued for almost two (2) years following the indictment. Second, Ms. Amaker’s location has been well-known; in fact, she has been appearing at the very agency that referred this matter to the District Attorney for more than a year prior to this warrant’s execution and more than one and a half years subsequent to the indictment. Third, Ms. Amaker has not been attempting to hide from the warrant or the charges; rather, she has at all times subsequent to the indictment been a resident of Tarrant County, Texas and used her real name, social security number, and driver’s license number. Fourth, Defendant is not aware of any reason that would justify the delay in this matter, nor is Defendant aware of any reason—other than the State’s negligence—that has caused this delay.

3. Defendant Amaker has timely asserted her right to a speedy trial.
While a defendant must timely assert her right to a speedy trial, a defendant cannot be penalized for failing to assert a right she did not know she had. “Without evidence that [the defendant] actually knew of the indictment prior to his arrest . . . , he cannot be penalized for invoking his speedy trial right only after arrest.” Pierce, 921 S.W.2d at 295 (citing Doggett v. United States, 112 S. Ct. 2686, 2691 (1992)). A timely assertion of this right subsequent to arrest—even if after a long pre-arrest delay—favors the defendant. See id.

Moreover, giving a statement to an investigating agency is insufficient to notify a defendant that the defendant should assert her right to a speedy trial. In Pierce, the State asserted that the interview the defendant gave Child Protective Services antecedent to the defendant’s arrest should have notified him of the need to assert his speedy trial rights. See id. However, the Court of Appeals rejected this contention because the defendant was not arrested after the interview, CPS informed the defendant that the case was closed, and the defendant was not indicted until eight months after the interview. See id.
In the present case, Defendant Amaker did not learn of the pending charges until her arrest in the Spring of this year; therefore, she had no responsibility to assert her right to a speedy trial before this time. Additionally, she promptly retained counsel in the matter who, after careful and thorough review of the case, determined that her speedy trial rights had been violated and promptly asserted those rights on her behalf. Moreover, Defendant Amaker’s 1997 statement to the Department of Human Services was insufficient to notify her that she should assert her right to a speedy trial because she did not know of the pending indictment against her and had not been arrested; in fact, the warrant for her arrest had not even been issued. Accordingly, the third Barker factor weighs heavily in favor of Defendant Amaker.

4. The delay in this prosecution has seriously prejudiced Defendant Amaker.

Barker v. Wingo recognized three prejudicial concerns regarding the right to a speedy trial: (1) the prevention of oppressive pretrial incarceration; (2) the minimization of the accused’s anxiety and concern; and (3) the limiting of the impairment of the presentation of the accused’s defense. See Branscum v. State, 750 S.W.2d 892, 895 (Tex. App.—Amarillo 1988, no pet.) (citing Barker, 407 U.S. at 532). Though the first two concerns do not apply when the defendant has not been incarcerated and has not known of the indictment:
Barker[v. Wingo] was modified with respect to the prejudice factor by Doggett[v. United States, 112 S. Ct. 2686, 2691 (1992)] which provided that, under certain fact situations, the State’s egregious persistence in failing to prosecute the defendant was sufficient to warrant relief even without a showing of actual prejudice. Barker and Doggett recognize that impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony can rarely be shown. Doggett further recognizes that when proof of specific prejudice is absent, presumptive prejudice may, in proper combination with the other Barker factors, carry a defendant’s Sixth Amendment claim. Courts have generally found post-accusation delay presumptively prejudicial at least as it approaches one year. When the government’s negligence causes delay and when presumed prejudice is uncontroverted, the defendant should be afforded relief on speedy trial grounds.
Because the post-accusation delay in this case exceeds six years, and the delay was caused by the State’s negligence in bringing appellant to trial, we conclude that the State must overcome a presumption of prejudice. Although the State contends that appellant did not provide evidence of actual prejudice, we find that appellant did not have such a burden in this case because of the protractedness of the delay and the State’s negligence.

Pierce, 921 S.W.2d at 295–96 (citations omitted) (emphases added); accord Branscum, 750 S.W.2d at 895 (“We regard this [fourteen year] delay occasioned simply by the inapt consignment of the case into limbo as ipso facto prejudicial, because the appellant was entitled to have the case resolved one way or another within a reasonable time.”).
The Court of Criminal Appeals has noted that such extreme delays severely hamper the defense for several reasons:

If there is always the danger that witnesses will disappear or memories fade, how much greater is that danger where, because he does not know he is accused, a [defendant] can take no action to thwart the impact of time? If he does not know of the accusation, he will have no reason to move for a speedy trial, no occasion to seek the taking of depositions, and indeed no motivation to initiate “his own investigative efforts to mitigate [the] erosive effects of the passage of time.” In short, the potential danger inherent in any delay becomes even more hazardous when, as here, the danger is not even perceived.

Phillips, 650 S.W.2d at 402 (quoting Smith v. Hooey, 393 U.S. 374, 380 (1969)) (emphasis added) (first alteration added; second in original). In sum, “[e]xcessive delay presumptively compromises the reliability of a trial in ways that neither party can prove, or for that matter identify.” Pierce, 921 S.W.2d at 295 (citations omitted) (emphasis added).
Defendant Amaker has suffered some and might suffer all these prejudices from the State’s five year delay in bringing this matter to the Court. First, Defendant Amaker has been unable for the five years subsequent to the incidents forming the basis of the allegations in this indictment, because she was unaware of any need, to launch her own investigation of these allegations. Second, her memory of the events forming the allegations in the indictment has faded as these alleged misdeeds occurred more than seven years ago. Third, she has been unable to reconstruct and recall the precise sequence of various events that may or may not relate to the allegations contained in the indictment and that might or might not present defenses to the allegations; therefore, Defendant Amaker is unable to communicate relevant information to her attorneys and her attorneys are unable to ascertain what defenses she may have. Further, the harm to Defendant Amaker is not quantifiable or indentifiable because of the staleness of the events underlying the allegations.

CONCLUSION
Defendant Shondlyn Amaker moves this Court to dismiss with prejudice the indictment against her. In that regard, Defendant asks this Court to consider the overwhelming justification for dismissal of the indictment under Barker v. Wingo. First, the five year delay between the indictment in this matter and Defendant’s being haled into Court (and seven year delay measured from the incidents underlying the indictment’s allegations) is presumptively unreasonable and is so long that it effectively requires dismissal of the indictment under current Texas standards. See Branscum, 750 S.W.2d at 895 (twelve year delay); Pierce, 921 S.W.2d at 296 (six year delay).
Second, the State has utterly failed to carry its burden of bringing this matter to the Court and the Defendant in a timely fashion. In that regard, Defendant points out that the State apparently made no effort to locate Defendant and that the Defendant’s location was readily available—had anyone looked—as she was receiving assistance from the very agency that referred this matter to the District Attorney for almost two years subsequent to the issuance of the indictment and then again for more than a year preceding her arrest.
Third, Defendant timely asserted her right to a speedy trial after her arrest and her statement to Texas Department of Human Services was insufficient to notify her that she needed to assert her right to a speedy trial. Fourth, the delay in this matter has prevented Defendant from timely conducting her own investigation of the allegations, has severely retarded Defendant’s ability to reconstruct the events surrounding the allegations in the indictment, has allowed Defendant’s—and likely any witnesses’—memories to fade, and likely has adversely affected Defendant in ways that cannot even be identified or quantified.

ORDER DISMISSING INDICTMENT FOR SPEEDY TRIAL VIOLATIONS

Pending before the Court is Defendant Shondlyn Amaker’s Motion to Dismiss for Violation of the Right to a Speedy Trial. After consideration, the Court finds that it should be granted. In that regard, the Court notes the following: (1) almost two years passed between the issuance of the indictment and the issuance of a warrant for Defendant’s arrest; (2) almost five years passed between the Defendant’s indictment and her arrest; (3) no reason justifies this delay; (4) Defendant Amaker has timely asserted her right to a speedy trial; (5) the statement Defendant Amaker gave to Texas Department of Human Services was insufficient to give her notice of the pending indictment against her or her need to assert her right to a speedy trial; (6) Defendant Amaker has been seriously prejudiced by the delays in this matter and may have been prejudiced in ways that cannot be identified or quantified because of the excessive delays.
Therefore, the indictment in this matter is hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Signed this _____ day of _____________, 2001.
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Judge Presiding