This post is one of a series addressing major cases in Maryland’s appellate courts that, in the author’s view, every Maryland practitioner of law should now.
Few criminal cases in Maryland have had the practical impact for prosecutors and for defense counsel that State v. Hicks, 285 Md. 310 (1979) has had since that decision over 30 years ago. Every criminal defense attorney and every prosecutor should know its holding by heart, even those that don’t practice primarily in Circuit Court, the primary forum affected by the holding of Hicks affirming the State’s administrative duty to bring a defendant to trial with the mandated timeframe and a severe remedy for violations of that requirement.
Harley Hicks was in 1978 serving jail time in Delaware and was brought to Wicomico County for trial on charges and was found guilty on those charges, and was sentenced to time to run consecutive to his Delaware sentence. While awaiting return to Delaware, the State filed yet additional charged against Hicks through an eight-count indictment. Shortly after the filing, Hicks was returned to Delaware to serve out the rest of his Delaware term; the Public Defender entered his appearance on April 24, 1978 for Hicks and the clerk set a trial date for August 8, 1978after the P.D.’s entry of appearance.
At the trial date, the State requested a postponement on the grounds that the Defendant was in Delaware, not Maryland, and that the trial could not proceed. The Circuit Court granted that postponement. On August 25, 1978, the Public Defender moved to dismiss the indictment on the grounds that the 120-day rule set by statute and court rule was mandatory and only “extraordinary” cause per the rule could justify a postponement, which cause was allegedly not present. The Circuit Court agreed and dismissed the indictment.
The Court of Appeals noted that it had previously viewed the statute setting the 120-day trial date as merely “directory,” i.e. not mandatory, since the General Assembly had not mandated the dismissal of charging documents violating the 120-day rule by explicit language. The Court noted that it had passed court rule 746 establishing the same timeline as the General Assembly had set, but that the court’s rule was in fact mandatory and was justified under the court’s state constitutional authority to govern the administration of justice.
The Court found, however, that the trial court erred insofar as it concluded that the State had failed to show extraordinary cause; the absence of the Defendant rose to that level of cause and the State’s failure to extradite or otherwise bring the Defendant into court did not weaken that extraordinary cause. The Court noted that the court rule is not implicated by Sixth Amendment constitutional jurisprudence:
The time limits prescribed by Rule 746 are not, however, the measure of the Sixth Amendment right to a speedy trial. While the rule was adopted to facilitate the prompt disposition of criminal cases, it stands on a different legal footing than the Sixth Amendment’s constitutional right to a speedy trial.
The Court reversed the prior decision and remanded the matter to the trial court to reinstate the indictment.
A strong dissent by Judge Davison, joined by two of the other six judges of the Court of Appeals, urged that the State had not shown extraordinary cause insofar as the State did have the power to compel the presence of the Defendant and elected or failed to do so, and that to view the 120-day statute as having less force than the Sixth Amendment in fact undercut the speedy trial rights of all persons including Hicks.
On a motion for reconsideration by the State a month later, the Court further stated that, due to prior ambiguities in the interpretation of the applicable rules, the holding in Hicks was to be applied only prospectively to cases with defendants making a first appearance in court or their attorneys entering an appearance after the date of the supplemental opinion. The Court also stated that dismissal of a charging document for a failure to try the case timely would not be appropriate in cases where the Defendant had assented to a later trial date, or in cases where the trial date was within 120 days but the Clerk had merely taken longer than 30 days to set the date, also required by the applicable rule.
What do we as practitioners take away from Hicks? Hicks is not a Sixth Amendment speedy trial right case but a court administration case applying mandatory rules authorized under the power of the courts under Maryland’s Constitution to administer their own affairs. The mandatory trial date, almost always referenced as the “Hicks date”, is now 180 days after the earlier of the defendant’s appearance or the entry of appearance of counsel under Md. Rule 4-271. But Hicks remains a critical case.
I remain skeptical of the Court’s reasoning. On the one hand, the Court seems to describe its own Rule as the fulfillment of legislative intent. On the other hand, the Court seems to be imposing severe results – dismissal – for violations of its own rule when the statute did not require such a drastic result for a failure to show “extraordinary cause.” Does this case constitute judicial obedience to statute or an aggressive judicial branch power grab in excess of what the Constitution and applicable statute required? Either way, neither the General Assembly nor the Court of Appeals has seen fit to recalibrate any separation of powers questions in this case; Hicks remains very good law in Maryland.
Your blogger is a total Homicide: Life on the Streets fan. (Note: the FTC requires me to disclose the attached link to the left is an affiliate link to Amazon, which occasionally pays this blog a commission for sales of goods.) In one of the final episodes of the series, Detective Tim Bayliss learns to his horror that a sexual predator got released from custody and his charges dismissed due to the failure of the State to get its necessary witnesses and the Defendant into court within the Hicks date. Bayliss later executes the predator on the streets of Baltimore, and confesses to that killing to his former partner Frank Pembleton in a Homicide movie special after the end of the series.
On a lighter note, I recall hearing about (though not confirming) the ire of a West Virginia resident who objected that he deserved better from the State of Maryland than to be subjected in its official correspondence to the abusive reference of the “Hick’s date.” I don’t know whether this is a true story but dear Heaven it deserves to be true.