Changes in the Washington State time for trial rules in 2003 have caused many criminal defense attorneys to comment “there is no such thing as ‘speedy trial’ anymore.”  Fortunately, that is not entirely true. 

The Washington State Supreme Court, in State v. Kenyon, recently addressed the question of whether the lack of an available judge is good cause to continue a case beyond the speedy trial period.  Certain time periods are excluded when computing “speedy trial.”  Continuances granted for “unavoidable” circumstances beyond the control of the court, qualify as one of these excluded periods.  CrR 3.3(e)(8).  In general, the court is given wide latitude in deciding whether good cause exists for a continuance.   A trial judge’s decision will only be overturned if the ruling was “manifestly unreasonable, or exercised on untenable grounds, or for some untenable reasons.”

After several continuances Keyon refused to further waive his right to speedy trial and demanded a trial.  In the two department Mason County Superior Court, one judge was already scheduled for trial and the other judge was unavailable due to a pre-scheduled vacation.  The trial court continued Kenyon’s case based on judge unavailability. 

The Court of Appeals upheld the lower court’s decision.  The appeals court recognized “court unavailibity” was similar to ”court congestion” and, under the previous time for trial rules, court congestion was not ”good cause” for a continuance.  However, this court questioned the continuing viablity of this view under the post-2003 version of CrR 3.3.  Ultimately the trial court’s decison and Kenyon’s conviction were upheld.

The Supreme Court disagreed.  The court did agree that judge uanavilibilty was identical to court congestion and, under the current rule, a court may grant a continuance due to congestion.  However, it must make a record of the unavailability of judges and courtrooms and the availability of judges pro tempore.   Thus, a court must take affirmative steps to address court congestion.  In the present case the trial court made no such record. “Here, the trial court should have documented the availability of pro tempore judges and unoccupied courtrooms.  The failure to do so violated Kenyon’s right to a speedy trial.”

Judge unavailibilty alone is not sufficient to allow a continuance.  Because Keyon’s right to a speedy trial was violated the court dismissed all charges. 

The bottom line is that courts must make reasonable efforts to alleviate roadblocks to speedy trial, at least as they relate to court or judge unavailibility.  In the era of sweeping budget cuts overburdened courts are going to be forced to decide between finding a courtroom and a pro tem or dismissing your case. 

Click here for a complete version of State v. Kenyon.