Barton County Attorney Levi Morris agrees with and supports the efforts of Kansas district attorneys concerned about case backup created by the COVID-19 pandemic, and their pleadings last week with state senators to pass a bill delaying speedy trial guarantees until 2024.

“It is imperative that the Kansas legislature act to amend or repeal Kansas’ speedy trial statute,” Morris said. “Failure to act would result in criminals being set free or not being adequately prosecuted and punished.”

Under current Kansas law, defendants in custody must be brought to trial within 150 days of being bound over for trial; for those not in custody, it’s 180 days. If not, those cases could be dropped. 

But, detractors of the measure say if the speedy trial provision is waived, defendants who can’t afford bail could be subjected to prolonged incarceration without conviction. Kansas is one of more than a dozen states with the defendant’s right to a speedy trial in state law. 

Morris stressed, however, that even if Kansas amends, or totally repeals, the state speedy trial statute, defendants will still have a right to a speedy trial as enshrined in the U.S. Constitution. “In other words, we are talking about amending the degree to which Kansas law goes above and beyond the defendant’s constitutional speedy trial rights.”

Morris and the others feel this is necessitated by COVID and the growing backlog of cases it has caused.

In March of last year, Chief Justice of the Kansas Supreme Court Marla Luckert closed down the courts, and there were no jury trials, period, he said. Trials were allowed to start in the fall without a time restriction but few took place. 

This waiver will continue as long as the state remains under a declaration of pandemic emergency. That declaration expires at the end of March under a law signed by Gov. Laura Kelly two weeks ago, although the Legislature is expected to extend it before it ends. 

The measure, Senate Bill 57, is currently before the Senate Judiciary Committee. It would suspend speedy trial rights until May 1, 2024.  

And the problem grows

“Simply put, crime didn’t slow down last year while pandemic closed down courthouses and shut down courts’ ability to have jury trials,” he said. There are well over 1,000 cases across the State in need of a jury trial and they’ll need to address the backlog while also addressing the new cases at the same time. 

“In terms of what will be needed to address the backlog, we need available judges, available prosecutors, available defense attorneys because not all attorneys are qualified to handle high level offense, and of course we need more jurors,” Morris said. “Right now most people don’t want to serve on a jury even though they’ll be spaced out more than six feet from each other as part of the safety plan for jury trials.”   

It is the bigger counties that have the majority of those cases. Barton County has 40, but Leavenworth has over 100, Johnson and Sedgwick have over 400, and Shawnee has over 600.

“Those are just the numbers of cases that have nothing left but a jury trial,” Morris said. “Many counties have more cases that are still in need or a formal arraignment and then will need a jury trial. Many counties have cases that still need preliminary hearings, following by arraignment and then a jury trial.  And, many counties have cases that are simply not yet filed because there’s no room in the system. 

“In light of the pandemic, and for the sake of public safety, we need to amend Kansas’ speedy trial provisions,” he said. 

Morris said the backlog has been used by defense attorneys to force deals for their clients, anticipating the rush of trials once the speedy trial requirement is reinstated.  

Around the state 

“Until litigants and jurors are back into the courtrooms at pre-COVID levels, working down the backlog while attending to the new business coming in the door is going to take significant time,” said Sedgwick County District Attorney Marc Bennet. “Without further legislative action, the courts of this state will have to try these cases or face dismissal of hundreds if not thousands of cases with prejudice.”

“Many counties have a single judge to handle all their cases, while also attending to the other business of the court, from traffic dockets to divorce proceedings to civil matters, further limiting the number of days each week the judge can handle criminal cases,” Bennet said. “Not every defense attorney

Even smaller counties are facing caseload logjams, like in Franklin County, where 35 cases are awaiting trial.

Franklin County District Attorney Brandon Jones said the statute did not allow the flexibility necessary to account for unexpected circumstances like the pandemic. He said his county, for one, would not be able to manage without a delay.

“With only one judge, four prosecutors, a very limited number of qualified criminal defense attorneys and a total population of around 25,000 people from which to draw prospective jurors, there is simply no way that even half of these cases will be able to be tried in the 150 or 180 days mandated,” Jones said.

The opposition

Opponents of the bill say the freeze would bring significant costs associated with electronic monitoring and supervision onto Kansans and the state. Those in disagreement with the freeze were scheduled to testify Thursday but were delayed until Friday in the interest of equal time for both sides.

Sen. David Haley expressed concern with the length of the freeze. He said pretrial detention concerns with this proposal need to be addressed.  

Another concern expressed was that the bill would result in innocent people being stuck in jail for long periods. Sen. David Haley, D-Kansas City, Kansas, asked proponents if there were other options they had considered.

“The longer those who are languishing, waiting for their trial who cannot meet their bail, that’s a big issue,” Haley said. “We’ve got to do something different.”

Bennet said he would be open to a two-year freeze on the statute, although that may not be enough and could require a subsequent bill for an extra year delay down the line.

Other options legislators could consider include making significant changes to the speedy trial law or doing away with the statute. Bennett said the law provided an arbitrary and burdensome deadline.

Noah Taborda of the Kansas Reflector contributed to this story.