Milner v. State

MCFADDEN, Judge,

concurring specially.

I concur in the judgment affirming the trial court’s denial of Milner’s speedy trial motion, but I write separately because I do not agree with all that is said in the opinion.

This case involves an extraordinarily long delay of over ten years. In Doggett v. United States, 505 U. S. 647 (112 SCt 2686, 120 LE2d 520) (1992), the Supreme Court of the United States described the significance of a similarly extraordinary delay (eight-and-one-half years) to the Barker speedy trial analysis. As explained in Doggett,

excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that *665matter identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay.

Doggett, 505 U. S. at 655-656 (III) (A) (citation omitted).“[0]ur tolerance of [the state’s] negligence [in bringing an accused to trial] varies inversely with its protractedness[.]” Id. at 657 (III) (B) (citation omitted). And “the presumption that pretrial delay has prejudiced the accused intensifies over time.” Id. at 652 (II). Nevertheless, that presumption of prejudice can be “extenuated, as by the defendant’s acquiescence, [or] persuasively rebutted[.]” Id. at 658 (III) (B) (citation and footnotes omitted).

Accordingly, the extraordinary length of delay in this case plays a role in the analysis of all of the Barker factors. See Hayes v. State, 293 Ga. App. 338, 341 (2) (a) (680 SE2d 182) (2009) (“the weight accorded the other factors in the balancing test depends, to a large degree, on the length of the delay”) (citing Doggett, supra; other citations omitted). Most obviously, it figures into the degree to which the length of delay is weighed against the state. But the ten-year delay also figures into the tolerance given to the state’s negligence in bringing Milner to trial; the degree to which Milner’s delay in asserting his right to trial (which was also extraordinarily long) mitigates the prejudice presumed from the ten-year delay; and the amount of prejudice that can be presumed despite Milner’s inability to show actual prejudice.

Keeping in mind these implications of the ten-year delay in this case, I find no error in the trial court’s denial of the motion for speedy trial. The trial court’s order reflects a correct analysis of the Barker factors and an appropriate exercise of discretion in balancing those factors. See generally State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011) (describing nature of trial court’s role in balancing Barker factors). The order makes clear that the trial court properly considered the implications of the ten-year delay when he engaged in the balancing process, consistent with the principles explained in Doggett, supra.

Because this case can be resolved in the manner described above, I see no need for the majority opinion’s extensive analysis about the propriety of a bright-line rule. In addition, I disagree with the majority’s application of the standard of appellate review set forth in State v. Pickett, 288 Ga. 674 (706 SE2d 561) (2011), within its review of the trial court’s treatment of one of the Barker factors; that standard of appellate review is more properly applied to the balancing of all of the Barker factors. See id. at 679-680 (2) (d).

*666Decided November 14, 2014. Alixe E. Steinmetz, for appellant. Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.