Kansas public defender not convinced of need for blanket suspension of speedy-trial law

Attorney general certain delaying trials will prompt rash of lawsuits

Leavenworth County Attorney Todd Thompson, left, and Sedgwick County District Attorney Marc Bennett argued for extension of a Kansas Supreme Court order suspending the state law on speedy trials due to problems in the judicial system caused by the COVID-19 pandemic. (Sherman Smith/Kansas Reflector)

TOPEKA — Criminal defense attorney Mark Hartman is persuaded the human toll of speedy-trial problems driven by the coronavirus pandemic can be lessened if the court system concentrated on helping lower-risk defendants sitting in jail to post bail.

COVID-19 has been since March a dramatic impediment to flow of cases in courthouses throughout Kansas. In response to the lethal public health threat, the Kansas Legislature granted the chief justice of the Kansas Supreme Court authority to suspend the statute of limitations, speedy-trial deadlines and other rules by court order. Limits were imposed on the law restricting the suspension to no more than 150 days after expiration of the state disaster declaration on the coronavirus.

A coalition of prosecutors and politicians insisted the judicial system was incapable of handling the backlog that quickly. And that extension of Chief Justice Marla Luckert’s order ditching speedy-trial provisions was essential to protect public safety, because the alternative would likely be to throw open jail doors.

In rebuttal, Hartman said threats to release murder and sex crime defendants was “completely inflammatory.”

“A lot of these problems would be alleviated if people weren’t being kept in jail because they’re too poor to post their bail,” said Hartman, who works as a public defender in Garden City. “When you’re talking about issues of speedy trial, that is a very different experience for someone who is being held in custody while their charge is pending versus those that are not.”

Sedgwick County District Attorney Marc Bennett and Leavenworth County Attorney Todd Thompson joined with Attorney General Derek Schmidt and Gov. Laura Kelly to press for extension of the state’s emergency disaster declaration and the judicial branch’s affiliated speedy-trial mandate.

Sen. Molly Baumgardner, a Republican from Louisburg, voted against a bill in March allowing the Kansas Supreme Court to suspend speedy-trial statutes because it invited encroachment by the judicial branch into other branches of government during the pandemic. (Sherman Smith/Kansas Reflector)

Bennett said the backlog of cases in Sedgwick County, one of the state’s high-volume jurisdictions, was so massive it would be impossible to promptly proceed against felony defendants accused of murder, rape, burglary and theft not to mention the rapidly expanding list of misdemeanor cases. Integrity of the court system depends on continuation of the statewide disaster order, which is necessary for the Supreme Court’s chief judge to restrain the speedy-trial statute in Kansas, he said.

“It’s paramount for justice that we have an equal opportunity to be able to have a fair trial for the people that deserve it,” Thompson said.

Kelly said absence of the emergency orders applicable statewide from the governor and the chief justice would mean dismissal of charges by February against defendants “accused of serious violent crimes.” The governor’s latest 30-day order expires Oct. 15, and she expects Republican legislators to again fight against renewal of the edict as part of their pre-election political strategy.

Hartman, who works with the state board of indigent defendants, said the Founding Fathers inserted into the U.S. Constitution the right of criminal defendants to have a trial within a short time. It’s not a right that should be abandoned indefinitely, he said.

“They literally wrote it into the Fifth Amendment,” he said. “Not only are you entitled to a jury by your peers, but the state can’t just take forever to bring you to trial.”

In Kansas, defendants have both a constitutional and statutory right to a speedy trial. The Legislature and Kelly agreed at outset of the pandemic to suspend the statutory provision by adopting Senate Bill 102. It cleared the House 113-5 and the Senate on a vote of 27-7. Kelly signed a bill two days later that sunsets the chief justice’s unusual authority on March 31, 2021. That law was supplemented by passage of a broad emergency powers measure, House Bill 2016, during a special session of the Legislature.

Sen. Molly Baumgardner, a Republican from Louisburg, said she was one of the few to vote against the bill because it invited encroachment by the judiciary into other branches of government during extraordinary circumstances of COVID-19. However, Abilene Rep. John Barker, a former judge now serving as chairman of the House Judiciary Committee, said suspension of the statutory provisions on speedy trial was warranted, but should be allowed to eventually expire.

“I’m just hesitant to give legislative authority to another branch of government without any checks,” Barker said. “The Supreme Court checks us all the time. I like to check the Supreme Court when I can.”

Kansas Attorney General Derek Schmidt anticipates a wave of federal lawsuits filed by criminal defendants alleging their constitutional rights were violated because Kansas didn't deliver a speedy trial. (Sherman Smith/Kansas Reflector)
Kansas Attorney General Derek Schmidt anticipates a wave of federal lawsuits filed by criminal defendants alleging their constitutional rights were violated because Kansas didn’t deliver a speedy trial. (Sherman Smith/Kansas Reflector)

He said that at some juncture defense attorneys in Kansas would start filing lawsuits in federal court to raise constitutional issues about lack of speedy trials.

Schmidt, the Republican attorney general and a former state senator, said to not anticipate that wave of litigation would be folly. Defense lawyers have an ethical obligation to vigorously defend their clients and speedy-trial challenges on constitutional grounds are a given, he said.

“I’m anticipating there will be significant litigation in the context of individual cases that arises out of this whole delay,” Schmidt said.

Luckert, the chief of the Supreme Court, said public health concerns about the virus, which has contributed to the death of more than 600 Kansans, continued to create barriers to access to justice despite strides by judges and court employees to grapple with the pandemic.

“These barriers create a substantial risk that Kansans could forfeit claims, causes of action, or legal rights if time requirements are reinstated,” she said.

In addition, a representative of the Supreme Court urged legislators to indefinitely extend authority of the chief justice to respond to emergencies by eliminating the sunset provision in statute. State lawmakers also should alter state law so a chief justice could act even without issuance of a statewide emergency declaration by the governor, said Shawn Jurgensen, special counsel to the chief justice.

“These changes would permit the chief justice to maintain continuity of operations in the face of an emergency that may vary by locality,” Jurgensen said.

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Tim Carpenter
Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International. He has been recognized for investigative reporting on Kansas government and politics. He won the Kansas Press Association's Victor Murdock Award six times. The William Allen White Foundation honored him four times with its Burton Marvin News Enterprise Award. The Kansas City Press Club twice presented him its Journalist of the Year Award and more recently its Lifetime Achievement Award. He earned an agriculture degree at Kansas State University and grew up on a small dairy and beef cattle farm in Missouri. He is an amateur woodworker and drives Studebaker cars.