FORT WAYNE, Ind. (WANE) — Someone is booked into jail for murder, and then released. Some people find this unfathomable.

First, it’s not murder until there’s a conviction.

Second, the Constitution protects the rights of the accused as well as the victims.

In Indiana, criminal rule 4 dictates how long an inmate can be incarcerated pre-trial, although there are also exceptions.

WANE 15 spoke with local criminal defense attorney Robert Scremin who explained the rule and some exceptions to it. Some of his clients have been released because of the rule, he added.

The conversation comes as a man who was previously in jail on a murder charge was released in July on criminal rule 4, then charged with murder again Friday after a woman was found dead in a park.

Scremin said there are three important dates or timelines that fit into the criminal rule 4:

  • 70 days
  • 180 days
  • 365 days

The 70-day period applies to a defendant in custody at the jail who asks for a “fast and speedy” trial.

“If you ask for a fast and speedy trial, then the government has 70 days to bring you to trial,” Scremin said, “or they have to let you out of the jail.” An exception to the 70-day fast and speedy rule is if there’s more evidence out there, then a 90-day extension can be granted by a judge.

“If you as a defendant don’t ask for a fast and speedy trial, then the government has 180 days to bring you to trial, or once again, they have to release you from the jail.”

The 365-day rule has nothing to do with whether a defendant is in jail or out. The government has a year to bring someone to trial or a defendant can ask for the case to be dismissed, Scremin said.

But there are a number of exceptions. None of the scenarios are automatic and court congestion doesn’t count.

“If you’re scheduled for trial and so are other people, and the court can only do a limited number of trials, if they pick a trial other than yours and your case is ‘congested,’ then that doesn’t count,” Scremin said. “If you ask for a continuance because you need more time to prepare your case, that doesn’t count. But if you’re prepared to go forward and the government is not, then generally the rule can apply.”

Another exception to the fast and speedy rule is “if there’s some evidence that the government doesn’t have yet, some testing that’s being done and it’s not finished yet, if the government is able to assert that in the next 90 days, they’ll be able to get that evidence, then they (the government) can ask for an exception that it can be held another 90 days while that evidence is obtained and then if it (evidence) doesn’t come in 90 days, then you’re released from jail,” Scremin said.

Exceptions to the 180-day rule include court congestion, but then the defendant can be held until his or her next trial date. If the defendant has asked for some kind of continuance to better prepare his or her case, then you can also be held.

“Someone who was on probation for another case or out of another county might have a hold or a warrant out of another county, then they’re still being held on a different case or on a probation violation. In that case, you stay in jail,” Scremin said.

In the first two scenarios, the charges aren’t dismissed.

Sometimes defendants are held for over a year. Scremin said the situation might be the defendant who needs more time to prepare a case for trial, maybe the defendant has changed attorneys or the case may have been congested by the court.

“There’s only so many courtrooms and so many judges,” Scremin said, which means a judge has to choose a trial out of several to go forward.

If a new trial date is chosen, that typically is four to six months out again. And if four to six months down the line, another case gets chosen, “as long as it’s court congestion that’s moving it forward and not a continuance by the government, then you can still be held,” Scremin said.

Some of these exceptions include emergencies, such as the pandemic, when no trials took place.

“That time doesn’t count as well. As a general rule, if it’s the prosecution, the state asking for a continuance, then that’s going to count towards your CR4 time. If it’s the court that can’t get to your case or some other emergency, then the rule is you don’t have to be let out of jail, they don’t have to dismiss your case.”

A couple of Scremin’s clients were let out of jail after they spent 180 days in the jail, he said. The trial happened subsequent to that.

“With these three important timelines, if you’re in custody and you ask for a fast and speedy trial, the government has to bring you to trial in 70 days or release you from the jail. Otherwise, they have 180 days to bring you to trial or release you from the jail. And overall, they have a year to bring you to trial unless there’s court congestion or some other statutory exception to that rule,” Scremin said.