The state of Michigan (and for that matter every other state across our country) is faced with a concern over the “Speedy Trial” rule, which is likely to be compromised during COVID-19. According to the Michigan Court Rules (MCR 6.004) in a felony case in which the defendant has been incarcerated for a period of 180 days or more to answer for the same crime or crime based on the same conduct or arising from the same criminal episode, or in a misdemeanor case in which the defendant has been incarcerated for a period of 28 days or more to answer for the same crime or crime based on the same conduct or arising from the same criminal episode, the defendant must be released on personal recognizance, unless the court finds by clear and convincing evidence that the defendant is likely either to fail to appear for future proceedings or to present a danger to any other person or the community. There are exceptions to this rule:
(1) periods of delay resulting from other proceedings concerning the defendant, including but not limited to competency and criminal responsibility proceedings, pretrial motions, interlocutory appeals, and the trial of other charges,
(2) the period of delay during which the defendant is not competent to stand trial,
(3) the period of delay resulting from an adjournment requested or consented to by the defendant’s lawyer,
(4) the period of delay resulting from an adjournment requested by the prosecutor, but only if the prosecutor demonstrates on the record either
(a) the unavailability, despite the exercise of due diligence, of material evidence that the prosecutor has reasonable cause to believe will be available at a later date; or
(b) exceptional circumstances justifying the need for more time to prepare the state’s case,
(5) a reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run, but only if good cause exists for not granting the defendant a severance so as to enable trial within the time limits applicable, and
(6) any other periods of delay that in the court’s judgment are justified by good cause, but not including delay caused by docket congestion.
For insight on how Michigan Circuit Court will handle this issue, we spoke to some of the top criminal lawyers in our state, as this is an issue that is being discussed daily. In addition to the attorneys, we also obtained commentary from a knowledgeable member of the general public to discuss the topic.
Scott Grabel is the founder of Grabel and Associates. Located in Lansing, Ann Arbor, and Grand Rapids, Michigan Scott Grabel has formed the top criminal defense firm across the state of Michigan. Grabel provided commentary when he said, “The right to a speedy trial is a skill an argument that must be made. Defense lawyers have a valid concern that clients will have their constitutional rights violated. The courts are going to have a backlog that nobody was prepared for. We have not seen a situation this dire in over 100 years. Motion writing, appeals, and cases of first impressions are going to come to the forefront.”
William Amadeo is a partner at McManus and Amadeo in Ann Arbor, Michigan, and a Senior Associate for Grabel and Associates covering Wayne and Shiawassee Counties for the firm. Amadeo is known as one of the top criminal defense lawyers across the state of Michigan and provided commentary on the issue. “I’ve reached out to prosecutors that I work with across the state to try to resolve things. In my opinion, the defense lawyer needs to fight for their client while understanding the difficult position our courts will be in. I was always taught if every case went to trial under normal conditions, the courts could not handle it. Now, with a backlog like we’ve never seen, this is not business as usual. If a prosecutor does not want to be reasonable, I have no problem making their docket a nightmare and pushing everything to trial. Still, in my opinion, teamwork would be a wise decision for everyone. The constitution is on the side of the criminal defense lawyer right now. I highly suggest we work as a team. If we cannot work together, well, stay tuned.”
Scott Harper is a heavy machine operator that works in Livingston County, Michigan. Harper brought a viewpoint from the working man’s perspective when he said, “When you are arrested, there is no innocent until proven guilty. You are presumed guilty that’s why you go immediately to jail. With that amongst several other things that are not right during the process, what’s written law is the law, for both sides. The jail system is designed in such a way it causes misery, and in that situation, you want to do what you can to be away from that misery. That’s why a lot of offenders take deals they wouldn’t take if they can afford a bond.”
Joseph Brugnoli is a Senior Associate for Grabel and Associates and is known as one of the top criminal lawyers in Kent County, Michigan. Brugnoli stated, “The words of Scott Harper represent the view of many. When we defend someone, we are fighting for their freedom. While we are living in a state of emergency, we do not fight to preserve the constitutional rights of our clients more than ever.”
Nancy Eaton-Gordon is a partner at Jackson Eaton-Gordon and Associates in Adrian, Michigan, and is known as a top criminal defense and estate planning attorney in Lenawee County. When asked about the right to a speedy trial, Eaton-Gordon commented, “This is an issue that affects both my criminal docket and my work in estate planning. From a criminal law perspective, “The Speedy Trial Act of 1974″ is always turned to under normal circumstances. These times are far from ordinary. As for estate planning, many loved ones of criminal defendants are coming in to do wills and medical power of attorneys. We are in a time of the unknown. As lawyers, we truly have to serve as counselors right now.”
While we are in an uncertain time, these criminal lawyers are preparing for trials as if they will occur in a timely fashion. The reality is that even when courts re-open regularly when are we going to feel comfortable bringing jurors back in? In Washtenaw, a jury pool can be as much as 150 people; in Wayne, there have been times when 200 jurors have been empaneled, and in Shiawassee, over 60 jurors are not out of the question. Will courts feel safe bringing a large number of people into their court and conference rooms, and if not, where does the right to a speedy trial play within these issues? The criminal justice system is becoming a case of the first impression.