State v. Daniel W. Kohel, 2010AP1057-CR, District 2, 1/12/11
court of appeals decision (1-judge, not for publication); for Kohel: Andrew Mishlove; case activity; Kohel BiC; State Resp.; Reply
Prosecutorial delay, measuring at least 2 years and perhaps longer, in disclosing potentially exculpatory evidence violated Kohel’s right to speedy trial and therefore supports dismissal with prejudice of the pending charge.
OWI charge; the defense repeatedly sought the videotape of the event. These efforts were either ignored or resulted in a defective recording. While the procedural history is complex, it reduces to the idea that, although a complete recording was eventually produced, more than 3 years had passed since arrest, unaccompanied by good explanation for the delay. The trial court dismissed with prejudice, the court of appeals now affirms.
The familiar 4-factor Barker v. Wingo test applies, ¶8: (1) length of delay, (2) reasons for delay, (3) defendant’s assertion of right to speedy trial, (4) prejudice.
- Length, ¶¶9-10. Delay approaching 1 year generally triggers a presumption of prejudice. Because the delay was at least 2 years, the presumptive-prejudice threshold is passed. (The delay was probably longer than that, depending on how measured, but the court doesn’t derive a figure.)
- Reason, ¶11. The State failed to explain the delay. The trial court found that the recording was “easily producible from the beginning,” so the lack of explanation “exceeds negligence,” and amounts to “cavalier disregard” of the right to speedy trial–which in turn must be “weighed most heavily against the State,” citing State v. Borhegyi, 222 Wis. 2d 506, 513, 588 N.W.2d 89 (Ct. App. 1998).
- Assertion of right, ¶¶12-13. Kohel’s failure to explicitly assert his right to speedy trial doesn’t work against him: for one thing, this is typically a non-factor (the defendant has no duty to bring himself to trial); for another, he “doggedly pursued” the recording; and for still another, he raised a motion to dismiss, based on suppression of this evidence, that implicated the same concern with timeliness as a speedy trial motion would have. Moreover, given that Kohel “consistently pursued evidence that would have moved his case to trial,” failure to assert the right to speedy trial shouldn’t be held against him.
- Prejudice, ¶14. Although the indicia of prejudice (pretrial incarceration, anxiety, impaired defense) aren’t implicated, prejudice is found as a matter of law, given “excessive” delay attributable “solely” to the State.
“Doggedly pursued” is about right. There’s a lesson in there.
