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Baker v. State4/15/2005
was not standing by his attorney's side on the afternoon of October 11th, or during the business day on October 12th. Instead, he was in jail. Given Baker's situation, he did all that he could reasonably be expected to do to make his position clear: Only hours before, when Baker appeared in court in front of Judge Finn, he vociferously objected to any further delay of his trial, and he announced himself ready to proceed to trial with an unprepared attorney if that is what it took to insure a speedy trial.
Under these circumstances, I find it unconscionable to rely on Jeske for the proposition that, because Baker did not personally notify Judge Andrews that he objected to his attorney's request for a continuance, Judge Andrews could presume that Baker assented to the request.
That being said, I agree with my colleagues that we should affirm the district court's rejection of Baker's speedy trial claim. I reach that conclusion because I believe that "burden of proof" is the true question confronting this Court.
The record fails to explain what exactly transpired during the 36 hours following the trial-setting conference in front of Judge Finn on October 11th. When a litigant comes to this Court and seeks reversal of a trial court's judgment, it is the litigant's burden to show that error was committed and that this error compromised or defeated the litigant's legal rights. When the record is silent regarding the facts that are critical to a resolution of the litigant's claim, this means that the litigant has failed to meet this burden.
If I believed that Baker had not yet had a fair opportunity to make his record, I would vote to have the trial court investigate these factual issues on remand. But Baker had the chance to develop all of these facts when he litigated his motion to dismiss, and he failed to do so. I accordingly join my two colleagues in voting to affirm the district court's ruling on the speedy trial issue.
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