Advocates, lawyers split on pausing key trial requirement due to pandemic

Andrew Bahl
Topeka Capital-Journal
Lawyers are split about suspending the state's statutory speedy trial requirement in light of the pandemic. (File photo/The Capital-Journal)

Lawyers and legislators are split on whether to do away with assurances that Kansans will have their trial handled in an efficient manner, with concerns that provision will make it more difficult for the state's court system to recover from the blow caused by the COVID-19 pandemic.

Kansas is one of at least a dozen states that have provisions in their state law enshrining a defendant's right to a speedy trial. Under current law, a case must be brought to trial within 150 days, or 180 days if someone is out on bail. Otherwise, those cases must be dismissed and can't be brought again.

But with socially distant jury trials across the state only starting to slowly resume due to the pandemic, there are concerns that the provision will eventually put prosecutors in a difficult place.

"We have serious cases we have to attend to," Sedgwick County District Attorney Marc Bennett told the House Judiciary Committee on Tuesday. "And I don't want to get to the point where I have to choose which murder case to prosecute."

The proposal currently before legislators would pause the speedy trial requirement for three years.

Speedy trial rights are currently on pause thanks to legislation passed last year that gives Kansas Supreme Court Chief Justice Marla Luckert the ability to put deadlines on pause as long as the state is under a state of disaster emergency.

But that emergency declaration is only set to run until the end of March under a bill signed into law by Gov. Laura Kelly earlier this week. And Bennett said he doesn't want to leave anything to chance that the clock will start for him and his colleagues sooner rather than later.

He also noted that it would be better if the conversation about courts is separated from more charged discussions related to whether businesses and schools should be closed.

"I'm not going to complain as long as we divest it from the political," Bennett said.

It is unclear when the state's judicial system will be back up and running in a relatively normal fashion. Bennett said the case backlog in Sedgwick County is over 800 cases long; in Shawnee County it stretches over 600 cases.

This is a problem even for smaller jurisdictions. Franklin County has a backlog of 40 cases but has far fewer judges and attorneys than its larger counterparts.

"We're going to be trying a jury trial a week, and with one judge and four attorneys, that will be tough," said District Attorney Brandon Jones. 

But there are concerns that the repeal will harm the rights of the accused. 

Defendants have a right to a speedy trial under the U.S. Constitution, which exists regardless of whether Kansas has an active statutory speedy trial provision.

But those rights are less concrete and advocates worry people will fall through the cracks.

"We will have people languish in bail because they are too poor to pay bail," said Austin Spillar, a policy associate with the American Civil Liberties Union, arguing the legislation runs counter to broader efforts by lawmakers to reduce the number of Kansans in prisons and jails.

Bennett acknowledged there is a risk of defendants languishing in jail for an extended period of time, although he said he was hopeful that judges would take into account how long someone had been waiting for their trial.

But opponents also cautioned that changes to the statutory speedy trial provisions could invite a spate of appeals.

"The COVID-19 backlog of cases can be handled in a way that does not violate constitutional speedy trial and does not destroy our statutory provision," said Jessica Glendening, a Topeka attorney and representative from the Kansas Association of Criminal Defense Lawyers.

Other options are on the table. Bennett said he would be open to a shorter freeze on the speedy trial requirements, though he said it would be risky to suspend the rights for less than two years.

Legislators could give Luckert more power to unilaterally suspend the deadlines but legislators rejected that option last year. Glendening countered that more authority could instead be given to local judges to extend timelines as needed.

And Bennett said legislators could take a broader look at the need for a speedy trial requirement in state law. Legislators expressed some interest in permanently extending the speedy trial deadlines or merely requiring that defendants be released on bail after a certain point on the calendar.

In any event, Rep. Fred Patton, chair of the House Judiciary Committee, said legislators would be looking to move quickly on the matter, even if the final form of the bill evolves.

"It would be nice to get this behind us so everyone has some certainty," Patton said after the hearing.