The client came to us after it looked like he had scored a huge win on his case.

He was charged with a felony called possession of a stolen motor vehicle.  The case against the client seemed solid for the government.  But the client told the judge he was not guilty, and he was appointed a public defender at the time.  The client sat in jail for 41 days waiting for his jury trial, which by law had to be within 60 days of his not guilty plea.  Mysteriously, though, with his trial looming just a week away, the government dismissed the case.  The prosecutor threw the case away without even a hearing where the client or his lawyer could talk to the judge.  The reason?  The prosecutor told the judge that they couldn’t prove their case with the currently available evidence.  The charge requires proof that the client knew the vehicle he was in was stolen, and that evidence was absent or weak.  So, the client goes free and the case is dead.  Happy ending, right?

Well, not so fast.  You see, the prosecutor actually only asked the judge to dismiss the case “without prejudice.”  That means, that anytime within the statute of limitation to file the charge (for felonies, usually three years), the prosecutor could re-file the charge at any time.  And that’s exactly what the government did.  They filed the charge almost a year after the dismissal, completely blind-siding our client.  Why did they file again a year later?  Because, unbeknownst to our client, the government cut a deal with another person involved in the alleged crime, to have that person testify at trial against our client (they would say that our client knew the car was stolen).  Now, with this additional evidence in hand, the State decided to come back again at our client, hard.

He walked through our door and told us the story, and we were shocked but not surprised that the State would try to pull such a move.  After all, we have decades of experience in fighting violations of constitutional rights, including the right under the Sixth Amendment to the U.S. Constitution that grants us all a speedy trial.  “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial… .”  So how could the State simply dismiss a case and then re-file it a year later without violating our client’s rights?

We began researching this interesting issue.  We started from an article that we authored more than ten years ago, which was published in the Washington Association for Criminal Defense Lawyers Monthly Journal, Defense, that you can read for yourself here.  Our article discussed the weakening of speedy trial over the years.  The fact is, courts simply don’t like to dismiss cases because it took too long to bring them to trial.  But the constitution is the law of the land, and speedy trial is baked in there.  So while it has been watered down, the right of speedy trial over the years is not dead by any stretch of the imagination.  And the law says that if the State dismisses a charge solely in order to circumvent a person’s constitutional right to speedy trial, then the “clock” keeps running without interruption.

The prosecutor in our client’s case told the judge during dismissal that it couldn’t prove the case with the “currently available” evidence.  That signaled to the judge who dismissed the case when we were hired, that the State was trying to do an end-run around our client’s speedy trial rights.  When the government tries to do this, the speedy clock keeps running.  Thus, when 41 days out of 60 had elapsed, and then the dismissal happened, the remaining 19 days ticked off the clock long before the State re-filed a year later.  Thus, when the State re-filed the charge, they had no more time to bring the case to trial.  The case had to be dismissed, this time with prejudice, meaning it was dead forever.  The cases in support of this proposition are State v. Bible, 77 Wn.App. 470 (1995), State v. Edwards, 94 Wn.2d 208 (1980), and others.

We had also argued to the judge that the government committed serious misconduct by taking the course of action it had.  However, the judge agreed with our first argument, and dismissed the case based on the speedy trial violation.  We truly believe, however, that allowing a client to believe he had “won” only to pull the rug out from under him later by re-filing the charge again, was misconduct in this case.  There’s a very interesting case from the Washington Supreme Court that discussed a similar issue, State v. Michelli, 132 Wn.2d 229 (1997).

If you find yourself in a situation that you don’t understand, and you think your rights may have been violated, you could be more right than you know.  Give our office a call and we will explore creative ways to defend cases that could seem cut and dried at first glance.

-Derek ([email protected])

 


Derek T. Conom

Attorney at Law