Davies, Esq. v. Dist. Ct. (State)

 (quoting LindeIli v. Town of San Anselmo, 4 Cal. Rptr. 3d 453, 461 (Ct.
App. 2003)). In other words, the writ must be denied if the petitioner will
gain no direct benefit from its issuance and suffer no direct detriment if it
is denied. Id. Counsel's concern in providing Bean with effective
assistance of counsel at his trial is insufficient to establish the beneficial
interest necessary to confer standing in this instance. In particular,
Bean's Sixth Amendment right to the effective assistance of counsel
belongs solely to him and counsel have no personal interest in that right.
See Cole v. Gabriel, 822 S.W.2d 296, 296 (Tex. Ct. App. 1991) (dismissing a
petition for a writ of mandamus filed by an attorney in his individual
capacity because he did not have standing to assert his client's lawyer-
client privilege because the attorney had no personal interest in the
matter). Because counsel does not have standing to pursue this petition
for a writ of mandamus, we must deny the petition.'
"We nonetheless are concerned that the district court placed too
much emphasis on Bean's invocation of his speedy trial rights in denying
the continuance. There is inherent tension between a defendant's speedy
trial rights and his Sixth Amendment right to the effective assistance of
counsel. See People v. Frye, 959 P.2d 183, 202 (Cal. 1998) (noting tension
between right to speedy trial and right to effective assistance of counsel
that arises "when the defendant's desire to invoke the right to speedy trial
by refusing to waive time [comes] into conflict with defense counsel's
request for a continuance"), overruled on other grounds by People v.
Doolin, 198 P.3d 11 (Cal. 2009); Taylor v. State, 557 So. 2d 138, 141-42
(Fla. Dist. Ct. App. 1990) (noting the tension between the right to a speedy
trial and the constitutional right to competent, prepared counsel),
disapproved on other grounds by Heuss v. State, 687 So. 2d 823, 824 (Fla.
1996). Bean's invocation of his speedy trial rights is only one factor in
deciding whether a continuance would infringe on that right; the reason
for the delay must also be considered. See Barker v. Wingo, 407 U.S. 514,
530 (1972) (identifying four factors); see also Sheriff v. Berman, 99 Nev.
102, 107, 659 P.2d 298, 301 (1983) ("The four Barker factors must be
considered together, and no single factor is either necessary or
continued on next page.
SUPREME COURT
OF
NEVADA
Li
(0) 1947A
It is so ORDERED. 2
Hardesty
••°;
Douglas ii7
CHERRY, J., dissenting:
I am extremely concerned that Bean is "gaming" the
administration of criminal justice by forcing his counsel to proceed to trial
before counsel has properly prepared a mitigation defense to the capital
murder charge.
The majority denies the petition on the basis that Bean's
counsel does not have standing (no personal interest in Bean's Sixth
. . . continued
sufficient."). Similarly, the statutory right to a speedy trial may give way
to a showing of good cause for a delay. Huebner v. State, 103 Nev. 29, 31,
731 P.2d 1330, 1332 (1987). The proffered reason or good cause for the
delay is the need to protect Bean's constitutional right to effective
assistance of counsel. That reason is significant and may warrant a
reasonable continuance without violating Bean's right to a speedy trial.
See Taylor, 557 So. 2d at 142 (finding no violation of the constitutional
right to speedy trial where continuance, granted over defendant's
objection, was reasonable and necessary to protect right to competent,
adequately prepared counsel). It is unclear whether the district court gave
sufficient consideration to the reason for the delay or based its decision
solely on Bean's invocation of his speedy trial rights and objection to a
continuance.
2 We deny petitioners' motions to stay the district court proceedings
and to expedite this court's decision on the stay motion.
SUPREME COURT
OF
NEVADA
3
(0) 1947A ..10
Amendment rights), and further, that Bean's right to a speedy trial
trumps his Sixth Amendment right to effective assistance of counsel.
Thus, by denying the petition, the majority is allowing a speedy trial to
outweigh effective assistance.
My vast experience in the capital murder "trenches" as a
public defender, court-appointed attorney, special public defender, and
trial judge convinces me that Bean's counsel should prevail in this pretrial
matter, and that a stay of proceedings and a continuance of the trial date
are appropriate so that counsel can be adequately prepared to present
mitigation evidence to the jury in case Bean is convicted of first-degree
murder.
I do not pretend to have a crystal ball, but I do envision
extensive post-trial proceedings, including post-conviction relief years
later if, in fact, Bean is sentenced to death.
Why is it "strategy" or "tactics" when a defense attorney
concedes the guilt of his or her client without the client's consent,
Artnenta-Carpio v. State, 129 Nev. „ 306 P.3d 395, 398 (2013),
which could be construed to violate the client's Fifth and Fourteenth
Amendment rights to remain silent and not be forced to testify, and yet in
this matter we ignore the strategy or tactics of defense counsel in their
quest to provide effective assistance to a capital murder defendant?
I have observed numerous situations where a defendant's
speedy trial rights have been foiled due to the factors set forth in Barker v.
Wingo, 407 U.S. 514, 530 (1972).
In light of the above, I respectfully dissent.
SUPREME COURT
OF
NEVADA
4
(0) 1947A e
cc: Hon. William Rogers, District Judge
Kenneth V. Ward
Richard P. Davies
Jeremiah Diaz Bean
Attorney General/Carson City
Lyon County District Attorney
Third District Court Clerk
SUPREME COURT
OF
NEVADA
5
(0) I 947A