On June 28, 2012, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
On March 20, the Supreme Court of Ohio heard oral argument in the case of State v. Keith Ramey, 2011-0595. The issue in this case is whether the filing of a motion to suppress by one criminal defendant will automatically toll a co-defendant’s speedy trial time.
Keith Ramey and Jonathan Keeton were arrested and then jointly indicted for aggravated robbery, felonious assault and breaking and entering, stemming from a theft at a tattoo parlor in Springfield Ohio. The state opted to try the two defendants together. After their arrest, Keeton was released on bond, but Ramey remained jailed until the trial. Thus, by law, since Ramey remained incarcerated, he had to be tried within ninety days of his arrest, unless that time was extended. Permissible grounds for extending the trial date are codified at R.C. 2945.72.
At a pretrial conference lawyers for both defendants told the trial court they would be filing pretrial motions. Apparently based on those representations, the court set a trial date, which turned out to be beyond Ramey’s speedy trial time. After the pretrial, Keeton filed a motion to suppress, but Ramey never filed any pretrial motions.
The trial court overruled Keeton’s suppression motion. Ramey moved to dismiss the charges against him on speedy trial grounds. The trial court denied the motion. Ramey was convicted of four counts and sentenced accordingly. The Second District Court of Appeals affirmed the trial court’s decision on the grounds that Ramey’s speedy trial time was tolled by Keeton’s filing of a motion to suppress. This was the issue before the Supreme Court of Ohio, and it is an issue of first impression.
The prosecution and defense counsel agreed that Ramey’s case was not tried within ninety days. And they agreed that the Ohio statute contains no tolling provision like the one in the federal statute cited by amicus Ohio Prosecutors’ Association which expressly states that a delay attributable to one defendant is charged against the other when the two are tried together.
But the two lawyers sharply disagreed about whether both lawyers had agreed to the trial date, which was beyond the speedy trial time. The state contends the defendant agreed to the trial date. Defense counsel emphatically disagreed, arguing that indicating availability was not the same thing as agreeing to the trial date. He noted that the court of appeals did not decide this issue. He suggested that if the Supreme Court wanted to go this route, it should send the case back to the court of appeals to resolve this issue.
Defense counsel argued that it is the state’s burden to meet the speedy trial time—the defense has no duty to tell the state or the court that it is missing the deadline. A mere statement of an intention to file pretrial motions does not and should not toll the speedy trial time. While Ohio’s speedy trial statute allows many reasons for a continuance, the record in this case fails to state affirmatively on the record the reason for the continuance, as required by the Court’s precedent. In addition, the defense claims the trial court admitted that the case could have been tried on time, which should override any ambiguity in the court’s entry.
The state argued that the rulings below were correct, that the filing of a motion by one defendant tolls the speedy trial time for a co-defendant. Further, under Ohio law defendants who are jointly indicted must be tried together absent a showing of prejudice or a motion to sever. None was filed in this case.
The state also made a strong invited error argument in the case—Ramey told the Court he was going to file a suppression motion, knew the Court set aside speedy trial time to consider such a motion, and later appeared to agree to or accept the trial date, knowing it was beyond time. He should not now be allowed to cry foul over the trial date. Once he told the court he was going to file the motion to suppress, he should be found to have agreed to any continuance necessary to hear that motion. If the Court should decide the case on this basis it need not decide the defendant’s proposition of law.
The Supreme Court got very distracted from the issue before it because of the scant state of the record in this case, and the absence of a transcript of key events. Apparently, this case was reassigned at some point to a probate court judge who was unfamiliar with the speedy trial requirements. The trial court’s entry setting the trial date stated that “counsel have indicated their respective availability for trial.” The Supreme Court became fixated on what that meant—had both lawyers agreed to the trial date in this case? The appeals court did not decided that issue. At one point, Justice Cupp asked in exasperation, “how can we decide the proposition of law in this case when we have all these extraneous issues like invited error, or that trial judge may have been misled? How do we get to the proposition of law when there are so many other factors swirling around in the air?”
The Court spent almost all of its time on the state’s invited error arguments. What were the ramifications of Ramey’s representations that he would file pretrial motions? Did those constitute a waiver of speedy trial time? Had Ramey agreed to a trial date beyond speedy trial time? Because of all this, the argument devolved into a push and pull over the role of defense counsel as a zealous advocate for his client versus his role as an officer of the court.
Justice O’Donnell asked defense counsel why it wasn’t reasonable for the trial court, in setting a trial date, to rely on counsel’s representations that additional motions were forthcoming? Couldn’t the Court decide the case on this basis? Defense counsel said that he did not think all parties had agreed to the date, and that it would be an unwarranted extension of the speedy trial act to find that an expression of the intent to file pretrial motions tolls speedy trial time. When the Chief asked if there was any objection on the record to the trial date, defense counsel answered “no, and it would be almost malpractice to do that.”
At this point, one could feel the judicial eyebrows collectively go up. Looking incredulous, Justice Lanzinger asked if she had heard him correctly. Yes he said, because he’d be calling the court’s attention to the fact that the state was missing its deadline. “This is an adversarial process,” he said, “it’s not defendant’s job to tell the state it missed an element.” Justice Lanzinger asked him for authority on that point. He answered rather sharply that no case holds that it is the defendant’s burden to meet the speedy trial time. Both Justice Lanziger and Justice McGee Brown pushed him about a lawyers’ duty of candor to the tribunal as an officer of the court. But he stuck to his guns.
The justices went on the same tack with the prosecution. Justice O’Donnell asked if the Court had to reach the issue of whether the motion of one co-defendant tolls time of the other defendant. No, answered the prosecutor, because of the representations of counsel to the trial court that he was going to file pretrial motions. Justice O’Donnell followed, up questioning the effect of such representations if no motions were subsequently made, and the prosecutor answered that speedy trial time was set aside for those motions that would otherwise have been used for trial. O’Donnell persisted, asking the prosecutor if he thought defense counsel had agreed to the trial date. Clearly choosing his words carefully—as he did throughout the argument–the prosecutor said that while the court’s entry didn’t show that, when the court later ruled on the motion to dismiss, it was denied it because counsel had agreed to the trial date.
The exchange with Justice O’Donnell continued. O’Donnell asked whose responsibility it was to comply with the speedy trial requirements—the prosecutor’s or the court’s’? Again choosing his words carefully, the prosecutor answered that it was the court’s responsibility, but also the responsibility of all the parties—if they are aware that the court is going beyond speedy trial time, “all parties have a duty to inform the court of that.” When O’Donnell asked why no one brought the matter to the court’s attention in this case, the prosecutor reminded him that under the precedent of the Second District the trial wasn’t beyond speedy trial time (because of the tolling motion filed by Ramey’s co-defendant—one of the few questions related to the proposition of law before the court. But that would only explain why the prosecutor didn’t need to bring this matter to the court’s attention.)
Justice Stratton then picked up the theme, asking again if the prosecutor thought defense counsel has the affirmative duty to warn the court it is setting the case beyond time limits. He said he thought the duty of candor required that. At which point an astonished Chief Justice O’Connor jumped in, asking about the inherent conflict between the duty to zealous represent a client (professor’s note—that particular language is no longer in the Ohio rules of professional conduct) and the duty of candor to the tribunal. Then came this exchange:
Chief Justice O’Connor:
“I think there is a difference between agreeing to a trial date and remaining silent as to the trial date. It may be a grey area when it comes to whether you have acquiesced to a trial date and agreed to lengthening of time, but do you expect this court to say it is incumbent on a defense attorney to notify the court when prosecutor is beyond the speedy trial time?”
Answer by the prosecutor:
“If he has agreed to it, but if not I’m not sure”
Realizing the potential mess here, the Chief backed off, saying the Court really needn’t get into that.
How it Looks from the Bleachers
The case is a mess, with a poor record. It seems the least likely thing the Court is going to do is decide whether the filing of a motion by one defendant tolls the co-defendant’s time–the issue in the case–which is unfortunate, as that is a very interesting issue. The Court spent almost no time at all on this issue. The Court could also decide that the representations of counsel as an officer of the court that pretrial motions were forthcoming amounted to an acceptance of a continuance of the speedy trial date. There seemed very strong sympathy for this position. If the Court goes in that direction, it would not have to decide whether both counsel agreed to the trial date. Nor would it have to decide if defense counsel had a duty to inform the trial court it was setting the case out of time, or to wade into the difference between silence and a misrepresentation to the trial court, or between the duty to represent a client and the duty of candor to the tribunal. Or the Court could send the case back to the court of appeals to decide if both sides agreed to the trial date, which would only be useful if the appeals court found that they did. If it found that defense counsel did not agree to that date, we’d be back where we started.