STATE OF MARYLAND IN THE CIRCUIT COURT v FOR BALTIMORE CITY KEVIN HICKSON Case Nos. 119337008 RONALD CRAWFORD 119337004 DAVON TELP 119337018 JARRELL DOCKET 119337005 Defendants MEMORANDUM OPINION This matter was before the Court on June 27, 2022 for a hearing on Defendants’ Motions to Dismiss for Lack of Speedy Trial. The Court has considered the briefs of the parties, the record in this matter, the testimony presented, and the oral argument of counsel. The Court’s analysis and decision are set forth below. L Introductic The current action arises from allegations of a criminal conspiracy amongst 26 correctional officers working in the Baltimore City jail. The Court is deeply troubled by the manner in which the Office of the State’s Attorney for Baltimore City (“SAO”) has handled this matter. Initially, recognizing the complexity and high-profile nature of this prosecution, the SAO assigned a team of two veteran prosecutors to the case ~ Patrick Seidel and Michael Hudak. When Mr. Seidel resigned from the SAO more than a year ago, the office did not replace him on this matter. On June 7, 2022, a mere two weeks before the June 22, 2022 specially set trial date, Mr. Hudak resigned, effective June 21, 2022. In spite of this critical situation, the SAO then failed to act. It was not until the pretrial conference held by the undersigned on June 13, 2022 that Mr. Hudak informed the Court that he had resigned. He also stated that no prosecutor had been designated to replace him, The undersigned next asked Mr. Hudak to identify his supervisor so that the Courtcould inquire how the SAO planned to proceed in light of the fact that no prosecutor was assigned to try this complex case nine days later. Mr. Hudak indicated that the SAO had not told him who would be serving as his new supervisor and thus could not provide a supervisor’s name to the Court, On the day of trial, June 22, the SAO requested a postponement, which the Judge in Charge of the Criminal Docket, The Honorable Melissa Phinn, granted. Had the postponement been denied, the SAO would likely have been forced to dismiss the charges, as there was no prosecutor prepared to handle a twelve-day jury trial that all counsel agree required months of pretrial preparation. Reflective of the fact that the SAO was unprepared and unable to proceed on June 22 was the SAO’s failure to abide by the undersigned’s directive to all counsel that they submit proposed voir dire, jury instructions, and verdict sheets no later than June 17, 2022 Defendants have each filed a Motion to Dismiss all charges against them, asserting that their right to a speedy trial has been violated, At the hearing on the motions, counsel for each defendant incorporated the arguments of all other defendants into theirs, As is set forth in more detail below, and in spite of the egregious failures of the SAO, the Court is not persuaded that the Defendants’ right to a speedy trial has been violated, Ii, Analysis, A. Applicable Law. When considering a motion to dismiss for lack of a speedy trial, the Court tums to the seminal case of Barker v. Wingo, 407 U.S. 514 (1972). The Barker Court set forth four factors for the Court to consid : 1) length of delay; 2) reason for the delay; 3) defendant's assertion of * Counsel for the defendants have argued additional issues that the Court finds to be irrelevant to the instant analysis. The defense has raised the State's failure to produce certain discovery, which is unrelated to any of the postponements in this matter and an issue to be addressed in a motion to compel of for discovery sanctions. The defense has also noted thatthe Judge in Charge of the Criminal Docket told counsel in December 2021 that there would be no additional postponements. The fact thatthe judge reversed her prior decision to disallow additional postponements and granted the State's postponement request on June 22 is irrelevant tothe speedy trial analysis under Barker and its progeny. 2his or her right; and 4) prejudice to the defendant. In addition to the Constitutional right to a speedy trial, Maryland Rule 4-271 requires that a criminal defendant's trial date in the circuit court be scheduled no later than 180 days after the earlier of the defendant’s initial appearance in circuit court or the appearance of counsel. This is commonly referred to as the “Hicks Rule”, which cannot be circumvented unless a defendant “waives Hicks”, or unless the administrative judge, or that judge’s designee, finds “good cause” for a postponement. See State v. Hicks, 285 Md. 310 (1979); Tunnell v, State, 466 Md. 565, 570-72 (2020) B. Analysis under Barker v. Wingo. 1. The length of the delay. The instant matters commenced by indictment on December 3, 2019, which was 938 days - nearly 31 months ago, The State concedes that the length of the delay is significant enough to trigger a full Barker v. Wingo analysis, even in light of the COVID-19 court closures. The analysis on the length of the delay does not end there; it is a double inquiry requiring the Court to consider the length in light of the presumption that pretrial delay increases the prejudice to the defendants over time. See Doggett v. U.S., 505 S, Ct. 2686, 2690-91 (1992); Glover v. State, 368 Md. 211, 222-23 (2002). Here, similar to Glover, the case is complex. Counsel for both sides acknowledged the immense volume of discovery and intricate nature of the charges at issue. Given the complexity of the case and that length of the delay is itself “not a weighty factor,” the Court does not find the length of the delay to be unreasonable. Glover, 368 Md. at 225. 2. Reasons for the delay A substantial amount of the delay in this matter can be attributed to the COVID-19 pandemic, the closures due to the pandemic, and the logistical challenges related to scheduling 26 defendants for trial. As reflected in the Sixth Amended Administrative Order on Lifting theStatewide Suspension of Jury Trials and Maintaining Grand Juries, “jury trials were not able to be offered to criminal defendants due to the COVID-19 emergency during the periods beginning March 16, 2020, through October 4, 2020; November 16, 2020, through April 25, 2021; and December 29, 2021 through March 6, 2022, pending further Order of the Chief Judge of the Court of Appeals, do not count against the time remaining for the start of a criminal jury trial.” Id. at (h). Furthermore, with respect to the Hicks date, as will be discussed infra, the Sixth Amended Administrative Order states that “There further shall be an additional tolling of thirty days from the time that jury trials resumed on October 5, 2020, ending on November 4, 2020, for eriminal cases that were pending in the Circuit Courts on March 12, 2020, or initiated prior to the resumption of jury trials on October 5, 2020.” Id. at (j). Thus, for 459 of the 938 days of delay, the Court was closed and there was no possibility of trial. The Court also notes that, even during periods when jury trials were being held over the past 27 months since the initial COVID shutdown, such operations were limited, Indeed, to comply with CDC guidelines the Circuit Court for Baltimore City could only hold jury selection ina small fraction of its courtrooms and prioritized matters where defendants were held in pretrial detention, The Court also notes that, of the eight postponed trial dates in the instant matter, all were attributed to the COVID pandemic with the exception of the most recent postponement. Courts across the United States have held that, in the context of a speedy trial analysis, pandemic-related closures and delays are neutral reasons that were justifiable and outside the govermment’s control. See, e.g, United States v. Akhavan, 523 F. Supp. 3d 443, 451 (S.D.N.Y. 2021) (determining that, in the speedy trial analysis, the pandemic was “a neutral reason outside of the Government's control.”); United States v, Pair, 522 F. Supp. 3d 185, 195 (E.D. Va. 2021 (finding that “delay caused by the pandemic is justified.”); United States v. Smith, 494 F. Supp. 3d772, 783 (E.D. Cal. 2020) (“Instead, the Court’s decision to take responsible, emergency health measures to limit the spread of COVID-19 is responsible for the delay. The Court’s inability to safely conduct a jury trial is a good-faith and reasonable justification for the delay. One that does not weigh against the Government”), mandamus denied, sub nom, In re Smith, 854 Fed. Appx. 158 (9th Cir. 2021); United States v, Briggs, 471 F. Supp. 3d 634, 639 (E.D. Pa. 2020) (stating that the pandemic was “a substantial and compelling reason” for the delay, because “the public health crisis caused by the COVID-19 pandemic and the significant impact it has had on the Court’s ability to maintain the continued operation of grand juries.”); United States v. Snyder, No. 2:16-ct-160, 2021 WL 369674, slip op. at #7 (N.D. In. Feb 3, 2021) (finding that pandemic-related delays “cannot rationally be attributed to the prosecution and cannot be viewed as anything other than completely justifiable."); United States v. Taylor, No. 18-198, 2020 WL 7264070, slip op. at *6 (D.C. Dec. 10, 2020) (stating that “[eJourts across the country have reached the same conclusion, determining that the ends of justice served by postponing trials outweigh the interest of the public and defendant in a speedy trial. There, as here, continuances were not caused by ‘judicial backlog or neglect,’ but rather were ‘necessitated by the extraordinary circumstances caused by the pandemic’ and the ‘need for [courts] to safely plan the recommencement of criminal jury trials.’ United States v. Foley, No. 18-333, 2020 WL 6198949, at *9 (D. Conn. Oct. 22, 2020)); United States v, Critchell, No, CR-20-0086-RAJ2020, WL 6874690, slip op. at *4 (W.D. Wa. Nov. 23, 2020) (stating that the delay due to pandemic closures “is not an intentional effort by the Government; it is a factor far beyond its control.”); United States v. Crittenden, NO. 4:20-CR-7, 2020 WL 5223303, slip op. at 3 (MD. Ga, Sep. 1, 2020) (reasoning that “a global pandemic that is beyond the control of all the parties involved justifies an appropriate delay.”).The Court finds the seven COVID postponements to be “neutral” postponements under the speedy trial analysis, Even if the Court were to attribute these postponements to the State, there would be little to no weight assigned thereto, The June 22, 2022 postponement was the first postponement that the State requested in the instant case, with the reason for the request being to Mr, Hudak’s resignation from the SAO and need to reassign the matter. In conclusion, the Court finds that the “reasons for the delay” factor weighs against dismissal, as the vast majority of the delay in this matter can be attributed to the COVID-19 pandemic, the pandemic-related closures, the collateral impacts of the pandemic on the docket, and the difficulty in .eduling a complex, multi-defendant, multi-week trial 3. Assertion of the speedy trial right. The State concedes that all Defendants asserted their right to a speedy trial early in the proceedings and have done so consistently throughout the pendency of this matter. The Court finds that this factor weighs in favor of Defendants. 4, Prejudice. ‘The final factor in the Barker v. Wingo analysis is the prejudice to the defendants. In Glover v. State, 368 Md. 211 (2002), the Court of Appeals held that “[iJn analyzing the fourth factor, actual prejudice to the defendant, we are, in essence, considering the harms against which the speedy trial right seeks to protect: (i) oppressive pre-trial incarceration; (ii) anxiety and concern of the accused; and (iii) impairment of the accused’s defense.” Id. at 229. With respect to oppressive pre-trial incarceration, the Court concludes that these defendants have not suffered in such way as to support dismissal, Each defendant was incarcerated for one day, have been in the community since their release, and one defendant received permission from the Court to travel out of state to visit family.Each defendant has asserted to the Court that he has suffered tremendously since the inception of this case. Although not held in pretrial incarceration, each defendant has argued that the burden of pretrial supervision has caused prejudice. The defendants have outlined how the lengthy pendency of this matter has resulted in anxiety, challenges with personal relationships, financial hardship, difficulty in finding employment, loss of health and retirement benefits, and health challenges.” Defense counsel argued that, based on Divver v, State, 356 Md. 379 (1999), these intangible personal factors are sufficient to prevail because the only reason for the postponement is overcrowded dockets and prosecutorial caseloads. Id. at 393. The Court disagrees. As stated supra, the reason for the delay is largely attributable to pandemic-related closures and scheduling issues arising from the complexity of the case. The most recent postponement is chargeable to the State, but as the Court of Appeals has stated, “[aJlthough the ultimate responsibility for unintentional delays caused by over-crowded court dockets or understaffed prosecutors must rest with the prosecution rather than with the defendant, such circumstances are among the factors to be weighed less heavily than intentional delay, calculated to hamper the defense.” Wilson v. State, 281 Md. 640, 654 (1978). The Court finds, most significantly, that there has been no impairment to the defense in this case. There were bald assertions regarding witnesses relocating out of the jurisdiction. However, none of the defendants presented any concrete evidence of prejudice. Moreover, in spite of the mismanagement of this prosecution as set forth, supra, the Court finds that there was no act on the part of the State that was for the purpose of impeding the defense. 2 Counsel for Defendant Crawford argued that the delay has resulted and will result in additional legal fees. The Court finds this fact to be irrelevant to the prejudice analysis under Barker and its progeny. 7In sum, while the Court recognizes that the long pendency of this case has presented hardships to the defendants, none of the issues raised under this prong of the Barker analysis rise to the level of prejudice that would justify dismissal of the charges. C. Analysis under Md, Rule 4-271. ‘The Court finds, as set forth supra regarding reasons for the delay, that good cause existed for the purpose of postponing this trial beyond the Hicks date. Dismissal under Maryland Rule 4- 271 is therefore inappropriate. IM. Conelusion, The Court concludes that although there has been a lengthy delay in this matter, the delay is reasonable in light of the global pandemic, the complexity of the case, and the logistical challenges attendant to the scheduling and completion of such a complicated matter. Moreover, the Court concludes that there is not prejudice to the defendants that would justify dismissal under the speedy trial analysis, Finally, the Court concludes that there was good cause to postpone this matter beyond the Hicks date and dismissal under Md. Rule 4-271 is inappropriate. Therefore, the Court will deny Defendants’ Motion to Dismiss. The Court will issue an Order incorporating these findings. Judge’s Signature Appe / va Tefirey June 28, 2022 DateSTATE OF MARYLAND INTHE v CIRCUIT COURT FOR BALTIMORE CITY KEVIN HICKSON Case Nos. 119337008 RONALD CRAWFORD 119337004 DAVON TELP 119337018 JARRELL DOCKET 119337005 Defendants ORDER For the reasons set forth in this Court’s June 28, 2022 Memorandum Opinion, it is this 28 day of June, 2022 ORDERED that the Defendants’ Motions to Dismiiss for Lack of Speedy Trial shall be, and hereby are, DENIED. | Judge Jeffrey M. Geller Judge's Signature Appears on Original Document ie vial Jeffrey M. Geller a i a