IAC to fail to file a motion to dismiss for pre-charge delay…in a homicide?!

12 Oct

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Well this one comes as a shocker! Motions to dismiss for a violation of a speedy trial right by pre-charge delay are generally losers — ESPECIALLY if the issue is a delay in charging a homicide. Am I wrong? Apparently. The Fourth District held today that an attorney was IAC for failing to do so in a case that had a 19-year delay.

Notably, the appellate court held that the delay was entirely justified. But, the delay was highly prejudicial because a key defense witness could not be located at the time of trial.  A few interesting tidbits in this opinion. First, the appellate court ordered an evidentiary hearing on this issue and the trial court made factual findings that the defense witness would not have been credible. The COA declined to defer to those factual findings because the trial court made them without ever having seen the witness testify.

Second, because this was an IAC issue and not an issue on the actual merits of any motion to dismiss, the case can be retried. This is interesting only because the COA went on to address the appropriate remedy and it was kind of nutty. The witness’ exculpatory statements were made to police on a tape recording. The COA held that assuming the witness could not be located for retrial, the appropriate remedy is not a dismissal; it is a retrial where the tapes will be played for the jury. The COA recognized that the statements were hearsay. The hearsay exception that would allow their admission, according to the COA? This is an unusual case and an outright dismissal would be too drastic a remedy so the tapes will be played, hearsay or not. Kinda nutty. Here’s to hoping the DA just gives this guy CTS.

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