The Judiciary of Guam sent four measures to senators in September, including a proposed permanent change to Guam’s speedy trial law, to alleviate a backlog of cases.
But attorneys say the measures won’t address the backlog and threaten defendants’ rights.
“This is a real important piece of legislation,” Ana Maria Gayle, Alternate Public Defender managing attorney, said of Bill 411-35. “I think this is trampling way too much on our clients’ rights and I don’t think one hearing is going to do it.”
Gayle said more time is needed to vet the measure and proposed a roundtable hearing to get more input.
Introduced by the courts’ oversight chairwoman Sen. Therese Terlaje, Bill 411-35 seeks a permanent change to Guam speedy trial law. It was packaged with three other bills that Chief Justice Philip Carbullido wrote would “allow the trial courts to efficiently and expeditiously resolve its backlog of cases” that resulted from suspending non-essential court operations in response to the COVID-19 public health emergency.
Bill 411-35 proposes that the speedy trial timelines increase permanently for criminal cases. The bill will amend the law so misdemeanor cases of people in custody who assert their right to a speedy trial must go to trial within 60 days; misdemeanor cases of people not in custody must be tried within 75 days after arraignment; felony cases of people who are in custody must go to trial 90 days after arraignment; and felony cases of people who aren’t in custody are to go to trial within 180 days after arraignment.
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The law now states for those who assert their right to a speedy trial, trial is to start within 45 days for people in custody and 60 days for those not in custody.
In this time of a public health crisis, rights should not be restricted, they should be protected, said attorney Anita Arriola, who added that the right to a speedy trial is an important, fundamental right. Defense attorneys testified Wednesday against the bill at a virtual public hearing before senators.
“Before we had that right to a speedy trial people were incarcerated for any reason or no reason and historically, without that, they were held without charge, without bail, without bond,” Arriola said.
“These are not just numbers of days,” Arriola said. “These are days in which certain defendants are going to be incarcerated.”
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It’ll affect Department of Corrections because people will be incarcerated for longer periods of time, she said.
Lawmakers should find out how many people are currently incarcerated who haven’t been brought to trial before they even consider this bill, Arriola added.
“I would submit this bill doesn’t do anything to help the backlog of cases and certainly not in t his time of pandemic,” Arriola said.
Administrator of the Courts Kristina Baird said Guam’s speedy trial time limits are among the shortest in the nation.
Defendants assert, waive and re-assert their right to a speedy trial because they aren’t ready for trial as the time limits draw near, Baird said.
“This leads to an ineffective use of judicial resources as cases are often rescheduled based on their priority among other speedy trial cases,” Baird said. “A longer speedy trial time period will ensure that defendants are not rushed to trial without adequate opportunity to prepare and will result in a more effective utilization or resources. “
According to Attorney John Morrison, with the Alternate Public Defender’s office, the assertion and re-assertion of speedy trial is a consequence of prosecutors’ delay in turning over all the discovery.
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Many times, after his client asserts his right to a speedy trial, around day 40 as they are about to go to trial the prosecutor says there’s additional notes, photographs, records or other discovery in the case, Morrison said.
“So, when you’re faced with that situation, you’re about to go into trial then the question for your client becomes, ‘Well, do you unfairly want to go in unprepared or do you want to continue to assert speedy trial?’” Morrison said.
Morrison said the remedy is to push back trial, but that only happens if a defendant waives his or her right to a speedy trial.
“Overwhelmingly, what’s happening here is we’re getting late discovery so this bill does nothing to solve that problem,” he said. “The demand for jury trial is not causing any backlog, that I’m able to perceive.”
Gayle also said there are other ways to handle the backlog of court cases. She also attributed some of the delay to prosecutors.
“We are trying to work on these cases and get them forward but it takes a little while because the attorney’s general’s office, not all the prosecutors are as diligent in returning emails and phone calls and they’re shuffling around a lot,” Gayle said. “We just aren’t getting the work through as quickly as we want to.”
Stephen Hattori, executive director of Public Defender Service Corporation, said if the court wanted to address the backlog, they shouldn’t lengthen the time to do something.
“I think lengthening the speedy trial clock will have the opposite effect of what’s intended,” Hattori said. “We’re hoping the legislature really considers this.”
Sen. Telo Taitague asked if the time frames can be addressed by the court administratively without senators changing the law.
“The court couldn’t do that without tromping on the constitutional rights of the defendant,” Baird said.
Danielle Rosete, clerk of court, said this year there have been 1,018 criminal cases filed so far, and it’s about the same as previous years. On average about 1,400 criminal cases are filed a year, she said.
“We are in the last quarter of the year, and so we anticipate and project that we will likely have the same number of criminal case filings for 2020 that will need to be addressed before our superior court judges,” Rosete said.
The judiciary testified they are experiencing a backlog on 175 arraignments and 300 criminal cases, according to Terlaje.
Terlaje said the bills from the judiciary were introduced in the same language that the chief justice and judicial council proposed.
“I think we’ve learned today that the real root of the issue may be the limited ability of the court’s…facilities to conduct 12 member jury panels to bring in jurors to conduct voir dire,” Terlaje said. “We need to strike a balance between helping the court administer justice versus impeding on any rights and holding persons in prison any longer than they need to be.”
The Office of the Attorney General submitted testimony supporting the bill.
Another bill that was part of the judiciary’s backlog package was Bill 409-35, which would temporarily allow six member juries for felony cases, except for first- and second-degree felony cases.
The bill intends to provide for faster jury selection in “lower-stakes” felony cases and reduce the number of potential jurors to report for jury service, according to the bill’s intention statement. The courts are limited in space and cannot accommodate a 12-member jury plus court staff and parties with current social distancing mandates.
Clerk of Court Danielle Rosette said between 50 to 65 felony cases a year go to trial. In 2018, 65 cases went to trial and about 30 of them were third-degree felonies, according to Rosette.
Hattori opposed the reduction from 12 to six members in felony cases. Hattori said a 12-member jury provides more experience and perspectives in deliberations.
Many of the courts in the nation are using different mechanisms to deal with the same problem, Hattori said, adding there are other alternatives to ease the backlog.
He suggested moving jury selection to bigger spaces or providing written questionnaires to narrow the jury pool.
Arriola said Bill 409 drastically changes the law on Guam and asked senators to think carefully before entertaining it.
Attorney William Brennan, with the Arriola Law Firm, said sunset provisions need to address what happens after the two years are up.
Testimony can be sent to Sen. Terlaje through email [email protected] or dropped at the Guam legislature’s building in Hagatna. Testimony will be accepted until Nov. 6.