Monday is apparently “Sixth Amendment Day” at the Court. Most eyes will be on the first case to be argued (Alleyne v. United States), in which the Court will consider whether there an Apprendi right to jury trial for mandatory minimum sentencing facts. But don’t ignore the second case, Boyer v. Louisiana, which presents a Speedy Trial question that seems increasingly important in a world of rising appointed-counsel costs funded by decreasing government budgets.
When a criminal trial is delayed because there are no funds to pay for the indigent defendant’s counsel, does that delay count against “the state” in a Speedy Trial analysis? We’ll see whether the Justices can stay focused on this discrete question presented – which would be an important one to answer around the nation — or whether they will take the bait (offered by both sides albeit in opposite directions) to decide whether the right to speedy trial was actually violated on the (always) unique facts of this case? The normal course would be to answer only the question presented, and then remand for “further proceedings not inconsistent” with the Court’s opinion. While “bad facts” on both sides in this case might tug for a broader ruling, it seems more likely that the Justices will avoid a decision on the ultimate merits – which still leaves a difficult debate on the narrower question.
Jonathan Boyer was indicted in 2002 for capital murder. Although he had one court-appointed lawyer, Louisiana law (in keeping with many other jurisdictions) required two for a death penalty prosecution. The Calcasieu Parish and Louisiana state law had a somewhat complicated system for securing funding for the appointment of capital counsel, and the bottom line is that funding for the second counsel never occurred, and Boyer remained in prison untried, until some five years later – at which point the prosecution finally reduced the charges to second-degree (non-capital) murder in order to avoid the second counsel requirement. In 2009 – seven years after his arrest – Boyer was tried and convicted of second-degree murder, armed robbery and use of a firearm, and sentenced to life in prison for the murder (and a concurrent ninety-nine years on the armed robbery charge).
While Boyer’s capital case was pending, there was a great deal of litigation, in the Parish and state-wide, about the lack of funding generally for capital cases. The issue became an inter-branch political football such that trial courts were often waiting to see what the Louisiana Supreme Court and legislature would do. For example, when the Louisiana Supreme Court ruled in 1994 that trial courts could “order the local government of the parish” to pay for appointed counsel, the state legislature amended the statute to prohibit this. Thus, despite a judicial finding that Calcasieu Parish had “ample funding … with substantial monies in reserve,” the Louisiana Supreme Court found (in a different 2005 case, State v. Citizen) that it was impermissible to order the Parish to pay. Thus in Boyer’s case, although the state now argues that Boyer was responsible for not “seriously asserting” his Speedy Trial right, the Louisiana appellate court determined that although the “severe budget crisis [was] exacerbated by Hurricanes Katrina and Rita” in 2005, “the largest part of the delay involved the funding crisis experienced in the State of Louisiana…. The majority of the seven-year delay was caused by the lack of funding.”
In rejecting Boyer’s motion to quash his indictment based on Speedy Trial prejudice (not filed until 2005, right before Katrina hit this semi-coastal parish), the trial court denied Boyer speedy trial relief, ruling that the delay due to lack of funding was nevertheless “beyond the control of the state through the D.A.’s office.” By a vote of two to one, the intermediate state appellate court endorsed this ruling in a 2007 interlocutory opinion, and ultimately adopted it again when it finally affirmed Boyer’s 2009 conviction in 2011. When the Louisiana Supreme Court denied review, the state appellate court’s ruling set up the question presented here.
That question, from Boyer’s petition , is “[w]hether a state’s failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution’s choice to seek the death penalty, should be weighed against the state for speedy trial purposes?” The Court expressly limited its grant to this question, signaling that it was not interested in a broader review of Boyer’s conviction. The state, however, in its merits brief, has rephrased the question to include different factual qualifiers: “where the defendant already had constitutionally adequate counsel representing him, the defense failed to move the case forward, and the defendant failed to seriously assert his speedy trial right.”
It will be interesting to see whether, and how much, the Justices are interested in pursuing such fact-specific inquiries at oral argument. It seems particularly problematic because the parties disagree about all the peripheral facts and the record seems undeveloped. Yet in their briefing, both sides ask the Court to rule on the ultimate question – that is, was Boyer’s constitutional Speedy Trial right violated, or not? Boyer of course seeks dismissal of his case entirely – and the extremity of this all-or-nothing remedy has long been seen as the major difficulty with the Court’s modern Speedy Trial doctrine. (That doctrine began with Justice Powell’s 1972 Warren-era decision in Barker v. Wingo.) Meanwhile, the state wants a ruling that there was no Speedy Trial violation at all – and even if there was, the Court should dismiss only the murder charge, leaving in place Boyer’s ninety-nine-year sentence for armed robbery (which was filed only when the murder charge was reduced in 2007).
Given how likely it is that the Justices would deeply divide on the ultimate question, we should expect them to avoid it, although Justices on each “side” may want to get in a few influential “licks” on the worst facts for the other. Boyer is represented by the well-known capital litigator Richard Bourke, and he has some good facts to work with: he contends there is a serious question regarding Boyer’s guilt, and that some six witnesses died or became unavailable during the delay. He also points to a period of mental incompetence Boyer suffered in 2008, allegedly caused by his lengthy pretrial incarceration, as well as the non-unanimous jury verdict, showing that the case was close.
On the other hand, although the Louisiana criminal justice system has been under fire in the Court recently (see, for example, Smith v. Cain (2012) and Connick v. Thompson (2011)), Carla Sigler, the Assistant District Attorney set to argue the case, received briefing assistance from George Mason’s Supreme Court Clinic and sets out a number of facts unhelpful to Boyer, such as his repeated requests or acquiescence in requests for continuances, and the claim that he did still have one counsel appointed to his case at all times. (The Court has of course never ruled that two defense attorneys are constitutionally required for capital cases. Still, in Louisiana it was the state’s legislative decision to require it, not the defendant’s.)
If the Court were to rule that, as a matter of Barker’s four-factor speedy trial balancing “test,” delay caused by lack of funding is attributable to the state – a ruling that, if one must choose, seems eminently reasonable, particularly where the state has the money but simply won’t allocate it – the question whether that ultimately requires a speedy trial dismissal is far from clear or foreordained. Even with a multi-year trial delay during which the defendant is incarcerated, that encompasses provable prejudice to the defense and is “caused” largely by a state’s failure to fund counsel, the Court’s concededly imprecise Barker analysis presents a number of difficult questions. For example, even the Barker Court (a decidedly more liberal Court than now) noted that governmental delay caused by “overcrowded courts” – arguably just another type of funding issue – “should be weighted less heavily” against the state in the ultimate decision of whether to dismiss charges. How much? And what then? Because the Louisiana appellate courts did not “count” the funding delay against the state, many of the facts relevant to the rest of the speedy trial balance appear to have been undeveloped or truncated in their analysis.
Thus, although the Justices in argument are likely to “fire” at both the state and Boyer’s counsel on some of the “bad facts,” the ultimate decision is likely to be narrow, and I think unanimous on the narrow question presented. While some Justices might desire a complete re-examination of Barker’s entire framework, lower courts have been managing with it for decades, and this case seems unlikely to provide a comprehensive vehicle (although it may well generate some concurring opinions). In fact, this case is pretty similar to the Court’s speedy trial dictum, advanced only four years ago in Vermont v. Brillon, that a complete “breakdown in the public defender system” may be counted against the state. As the Barker court noted — even as it affirmed the denial of a speedy trial violation despite an “extraordinary” delay of “well over five years” – delay caused by governmental inadequacy, even if not “deliberate,” should be weighted against the state “since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Once this single factor in the analysis is clarified by the Court, Louisiana appropriately should be left to determine how the ultimate balance comes out. We’ll have to wait for Boyer II (2015) for a more comprehensive look.
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