(Posted July 3, 2019) As the Supreme Court will be closed tomorrow (and Friday, too), today is opinion day at Ninth and Franklin. The justices hand down a single published opinion, Young v. Commonwealth, which arrives by way of the Court of Appeals. While the overall subject is criminal procedure, the primary lesson of this opinion is preservation, always a topic of interest in the appellate world.

This is a case about Virginia’s speedy-trial statute. When a defendant is in custody before a felony trial, that act requires that the trial begin within five months from the date of indictment or preliminary hearing. If that doesn’t happen, the defendant is “forever discharged from prosecution for such offense.”

On occasion, the defense desires a continuance of a compliant trial date. If these situations, the time attributable to the defense request isn’t counted against the five months.

Young stood accused of several felonies. The court set a trial date one day before the expiration of the deadline. Reading between the lines a bit, I infer that three weeks or so (I’m guessing as to the exact date) before the trial, the prosecution metaphorically pulled a front-end loader up to the defense lawyer’s office and dumped 1,005 recorded phone calls, running to 225 hours.

Perhaps there was exculpatory information in there; maybe something inculpatory, too. The defense had no way to know other than assigning someone to listen to all 225 hours’ worth. Instead of that, the lawyer moved the court to dismiss the charges, claiming that this ninth-inning dump forced Young “to choose between his right to a speedy trial and the right to effective assistance of counsel.”

Well, now. The court convened two hearings, both before the original trial date, to consider what to do. The court eventually declined to dismiss the indictments, but imposed sanctions against the prosecution, barring it from using the materials and ordering it to supplement discovery by seven days after the scheduled trial date.

After? The defense lawyer indicated his dissatisfaction:

[We] don’t feel this should be a situation which Mr. Young has to forfeit his rights to a speedy trial in light of his rights to have the information that he’s entitled to, which again, once we move this court date will all but ensure we will be outside the speedy trial time.

The lawyer agreed to place the case on the scheduling calendar two weeks after the original trial date, but repeated that he wasn’t agreeing to a continuance past the speedy-trial deadline. He argued that attributing the continuance to Young “would be fundamentally unfair and quite frankly inappropriate,” adding that “this [added] time should be attributable to the Commonwealth.”

After the speedy-trial deadline passed, Young’s lawyer moved to dismiss. The prosecutor fired back that the defense lawyer had stated that he wouldn’t be ready to try the case on the original date. The judge took that argument and ran with it, ruling that while Young hadn’t moved for a continuance, he essentially consented to it. The court ruled that the prosecution hadn’t acted in bad faith, so it declined to dismiss the charges.

Young pleaded to one of the indictments. At a jury trial, the court dismissed two charges and sent the other two to the jury, which convicted Young. The Court of Appeals affirmed, holding that the continuance was court-ordered and not attributable to the Commonwealth. Since the finding of no bad faith wasn’t challenged on appeal, the time didn’t count against the five-month clock.

Today’s opinion, crafted by Justice Powell, acknowledges early on that the trial occurred well after the five-month deadline. But the court affirms on a ground I found surprising, holding that Young’s lawyer didn’t make an affirmative objection to the extension, so he can’t raise the bar of the statute.

I will confess to experiencing a “Wait; what?” moment upon reading this. What about those passages that I quoted a few paragraphs up? Today’s opinion of the court holds that there’s a word missing: objection. The Court of Appeals’ opinion in this case had observed that Young “repeatedly and emphatically stated at multiple stages of the proceeding that he was not waiving his speedy trial right.” Justice Powell confirms that that was the holding, but concludes that Young “reads too much into this statement.” She then writes that those things, vigorous as they may have been, did not amount to an objection: “While Young did not explicitly concur, agree to, or request a continuance, nowhere in the record is there an actual affirmative objection to the court-ordered continuance.”

This opinion is not unanimous, though the result is. Justice McCullough writes for Justice Mims, dissenting from the no-objection ruling – “The record is crystal clear that Young strenuously objected to any continuance counting against him for purposes of speedy trial” – but agreeing with an affirmance on the grounds set out in the CAV’s opinion.

There’s an important lesson here for trial practitioners: You should regard objection as a magic word. Here’s an illustration. You’re in the middle of a jury trial and your opponent adduces evidence that’s unmistakably hearsay. You stand and say, “Your honor, this evidence violates Rule 2:802; it’s clearly hearsay, as it’s offered to prove the truth of the matter asserted.” The judge disagrees and allows the evidence. Today we learn that a solid majority of the Supreme Court believes you can’t raise that issue on appeal, despite the specificity of your interjection, because you didn’t use the magic word.

To me, the majority’s approach is hypertechnical, and unfairly so. Young’s lawyer made his position abundantly clear, and the judge ruled against him. This outcome is the triumph of form over substance. Now, I recognize that form is important; I’m an appellate lawyer, after all. But I’m disappointed that the court used this approach to deny Young a decision on the merits.

One other angle here warrants mention. The speedy-trial doctrine has been seriously eroded by caselaw that allows exceptions to swallow this basic premise: The court needs to try a felony defendant quickly. The statute contains no bad-faith provision; jurists wrote that in, essentially amending the statute so that it operates in a more prosecution-friendly way. Is the denial of other procedural protections subject to bad-faith analysis? Can the prosecution deny the accused a court-appointed lawyer, and make him go to trial pro se, so long as it does so in good faith? How about the right to trial by a jury of one’s peers? There is, to my knowledge, no good-faith exception to the Seventh Amendment.

This suggests one other outcome in this appeal, one that none of the seven justices embrace: Reversed and indictments dismissed. If you read the speedy-trial act the way it’s written, Young was entitled to judgment in his favor. An affirmance is only possible because of the way judicial opinions have modified the statute.

I’m grateful for the chance to discuss these ideas today with a pal who deals with far more criminal appeals than I do. Thanks, Chris.