I have a assault (MA) case that involves a defendant that is "important" in the community. The case keeps getting set with long intervals in between settings.

Pretrial Settings:
1/17/08
5/15/08
9/3/08
12/17/08
1/7/09

MTS
6/15/09

J/T
12/14/09
5/17/10 -This last setting the defense attorney filed a MTC under the wrong cause number....and I didnt get a fax. MTC was granted w/o my knowledge or appearence by the defense attorney
12/6/10

I was wondering what can I do to push this to trial. I have talked to some fellow attorneys and they mentioned filing a motion for preferential setting. I am unsure what the crux of my argument should be since it is the defendant's right to a speedy trial not the State's

[This message was edited by CPC on 05-19-10 at .]

Art. 33.08 provides that the judge shall have control as to settings. In your case maybe the judge is not following art. 29.03, but that provision is very hard to enforce or interpret. I would file a motion stating length of delay and asserting the State is being harmed and requesting prompt setting. Then, when court does not follow through, your only recourse is application for mandamus (or the nuclear option of claiming judge is engaged in wilful, persistent, and unjustifiable failure to timely execute the business of the court and ask Judicial Conduct Commission to investigate).

Not only is the defense delaying trial but the trial court appears to be buying into it. At any of the settings, have you summarized the status of the case to remind the trial court of the whole picture? A motion, as Martin suggests, would be a good start. Your problem is much bigger if the trial court is sympathetic to the defense and the results of any action against it uncertain. If the defendant is important, hasn't the local press an ongoing interest in the proceedings?

Not only are they buying into it, I think they are in fact encouraging the delay. The last setting was continued with MTC that was faxed to the wrong number (Im in MISD, was faxed to Felony) and with the wrong CR number. The defense stated they tried to call me which is a lie. I have a voicemail system that I check daily and there were no messages. I didnt find out about the MTC until the day of trial.

The case was on the news because of the location of the assault. The defendant himself isnt a major political figure but has relatives in the legal community.

Sounds like you're already doing it, but continue documenting. Is it advisable to use the media to demonstrate the delays and put pressure on the judge? Or perhaps a state bar and/or judicial conduct investigation? I'm sure those things won't endear you to your judge, but at the same time, think of the precedent it sets, and the due process concerns that could be raised by other defendants who have been denied continuances.

If it's a family violence case or the victim is under 17, this new statute gives you the right to put the judge on the spot when granting those kinds of continuances.

You could also request a special setting (I'd do this on the record or in writing), regardless of the type of case. Just point out that the defense has had plenty of time to prepare for trial and ask them to set a date.

Thats what I was planning on doing. Thanks guys.

I have filed speedy trial motions on behalf of the State in the past, alleging that the victim also has a right to a speedy trial. If you set out your facts, your Judge would be in the hot seat if he did not grant it.

Oh wow, are you sure the victim has a right to a speedy trial?

Not a constitutional one, but a moral one, and that's an appropriate thing to remind a judge of when he is exercising his discretion in docket management.

Victim has at least as much of a right to a speedy trial as they have a right to health insurance, right?!

I have a setting for my motion on the 21st. Ill keep you posted on how it turns out.

Not keeping my hopes up.