Case dismissed—two years after being filed

A Superior Court judge yesterday dismissed a criminal case, ruling that the Attorney General’s Office failed to prosecute it, which was officially brought to the attention of the accused almost two years after the filing of charges.

Although the AGO filed with the court the criminal information against Derwin Y. Erwin as early as June 27, 2003, court records showed that service of the charging document was not perfected until February 2005, when the defendant was requesting clearance from the clerk of court.

Associate judge David Wiseman said a defendant has no duty to bring himself to trial.

“Although the defendant did not assert any prejudice from the delay, when there is a substantial delay between the time charges are filed and a defendant’s notification of such, presumption of prejudice to the defendant is presumed,” the judge said.

The judge granted the request of assistant public defender Angela Krueger to dismiss the case based on procedural grounds and the defendant’s right to speedy trial. The AGO did not oppose the request.

Wiseman ruled that the court has an inherent power to dismiss a case that has not been timely prosecuted, without going to the merits of the right to speedy trial argument.

“The government has provided no reason justifying the period of time that has elapsed between the filing of the information in 2003 and the defendant being notified of the charges against him at the clerk’s office in 2005,” the judge said.

Wiseman noted that, although the government made some effort to serve the charging document to Erwin in 2003, it failed to do so in 2004, when the defendant went to the court on several occasions regarding traffic violations. Erwin finally got served with a copy of the criminal information when he went to the clerk of court to secure a police clearance.

Wiseman said the delay in serving the criminal information constituted serious failure to prosecute.

“Certainly, if the delay had been caused by the defendant, any hardship would have been of his own making. However, when the delay is the fault of the government, there is nothing the defendant could have done differently as ‘a defendant has no duty to bring himself to trial, the state has that duty,’” the judge said.