¶1dissenting. Once again we have the problem of interpreting one of our “procedural” rules which is an attempt to codify a principle of constitutional law — the right to a speedy trial. Our rule, A.R.Cr.P. Rule 30.1, and decisions interpreting the rule are a poor attempt to reflect that constitutional right.
¶2The U.S. Constitution’s provision, upon which the rule is based, was adopted because citizens were being held in jail for months or even years without trial. A speedy trial was essential to their exoneration. Nowadays, that right is being perverted. A defendant, who does not want a speedy trial or cannot even demonstrate prejudice, can use this constitutional right to evade justice.
¶3It is an absurdity to dismiss charges after 12 months, regardless of whether the accused can show prejudice or that he desires a speedy trial. Indeed, delay is a common weapon used in the defense of persons charged with crimes. A defendant does not even have to ask for a trial during the 12 month period to obtain relief under Rule 30.1. Duncan v. State, 294 Ark. 105, 740 S.W.2d 923 (1987). That is bad law. We have also held that the illness of a judge does not justify a delay in bringing a defendant to trial, even though the defendant can show no prejudice. Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987). That also is bad law.
¶4The U.S. Constitution simply does not require the blind, rigid approach we have taken in Rule 30.1. In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court declared that four factors should be considered in determining whether a defendant has been denied his right to a speedy trial: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. We ignore two of these criteria. Our focus on length of delay without regard to prejudice or the defendant’s assertion of his rights was the minority position at the time we adopted our rule. See ABA Standards Speedy Trial, § 4.1 (Approved Draft, 1968). Federal law is far more sensible. See 18 U.S.C. § 1362 (1982) which provides for mandatory dismissal but gives the judge the power to dismiss without prejudice after considering certain factors, including seriousness of the offense and the effect of dismissal on the administration of justice.
¶5We do not dismiss charges in other situations involving a denial of constitutional rights. See, e.g., Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988) (failure to take detainee before judicial officer); O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984) (illegal arrest); A.R.Cr.P. Rule 16.2 (illegal search and seizure).
¶6The rationale for automatic discharge is that the right to a speedy trial will not be preserved unless a harsh remedy accompanies its violation; faced with dismissal, prosecutors and judges will be prompted to attend to their cases and dockets. (The judge, not the prosecutor, must control the trial calendar. A.R.Cr.P. Rule 27.2.) The responsibility and blame should be placed where it belongs.
¶7Judges and prosecutors should be held responsible for their duties. Freeing criminals to punish judges or prosecutors is foolish. If a speedy trial violation is found, the prosecutor who inexcusably allowed the time to elapse should be reported to the Committee on Professional Conduct, as are other criminal lawyers who fail to carry out their responsibilities. See our Per Curiam opinion dated February 5,1979, In re: Belated Appeals in Criminal Cases. Judges who cause the delay by neglecting their dockets should be reported to the Judicial Discipline and Disability Commission. See Act 637 of 1989, § 6. (Appellate judges are equally responsible to attend to their duties.)
¶8In addition, I believe Rule 30.1 represents another instance in which we have overstepped our constitutional authority and adopted a substantive rather than a procedural rule. See Kiefer v. State, 297 Ark. 464, 762 S.W.2d 800 (1989) (Hickman, J., dissenting). While we have recognized that setting the time for bringing an accused to trial is a procedural matter, Jennings v. State, 276 Ark. 217, 633 S.W.2d 373 (1982), the provision for dismissal is essentially a substantive rule, remedial in nature. See Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976). The fear that Justice Byrd expressed when the Rules of Criminal Procedure were adopted has been realized. In re Rules of Criminal Procedure, 259 Ark. 863, 530 S.W.2d 672 (1975) (Byrd, J., dissenting). We have gone beyond any power granted to us by the legislature to enact procedural rules under Ark. Code Ann. §16-11-301 (a) (1987) and have begun to legislate. See also Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).
¶9In the federal realm, Congress, rather than the judiciary, has promulgated rules involving speedy trials. Shortly after the decision in Barker v. Wingo, supra, the Speedy Trial Act was passed. See 18 U.S.C. §§ 3161 to 3174 (1982). The Federal Rules of Criminal Procedure contain no speedy trial provisions.
¶10The policy decision embodied in Rule 30.1 should be the province of the legislature. If the majority insists on using this rule it should at least parallel the right guaranteed by the U.S. Constitution. We do not invade that province in similar areas of the law such as statutes of limitations in criminal prosecutions, Ark. Code Ann. § 5-1-109 (Supp. 1987), and civil actions, Ark. Code Ann. §§ 16-56-101 to 127 (1987), and we should not invade it now.
¶11In this case no request for a speedy trial was made, and no prejudice was shown. I would order the trial to proceed.