Long Waits for Trial in Virgin Islands Highlight Need for New Law — Or New Constitution

Individuals in the U.S. Virgin Islands facing criminal charges often wait years for their case to come before a jury. This is due to many factors, including difficulty selecting an unbiased jury, the small number of public defenders in the territory, and the process by which cases are passed around should a public defender be unable to take a case. Yet the Virgin Islands Supreme Court has never found a violation of the U.S. Constitution’s guarantee of a speedy trial.

The rights of people facing criminal charges in the territory could be better protected under a Virgin Islands Constitution — which the territory has yet to adopt.

Currently, the right to a speedy trial is enshrined in the Revised Organic Act of 1954, a federal law that is the de-facto Constitution of the Virgin Islands. It contains a Bill of Rights with similar language to provisions of its federal counterpart, including the right to a speedy and public trial in criminal matters. The Virgin Islands Supreme Court has interpreted the law as simply applying the federal Sixth Amendment to the territory. In practice, then, people accused of a crime in the Virgin Islands “have a right to a speedy trial only under the [Sixth] Amendment.”

It currently takes an average of two years for murder cases to go to trial in the Virgin Islands. By contrast, the average time for a felony case to reach resolution in the United States is 256 days. In a recent hearing before the Virgin Islands’ legislature, the territory’s head public defender told lawmakers that some people accused of crimes end up spending more time behind bars awaiting trial than they would have if they had been convicted of the charges against them and sentenced.

There are many reasons for these delays. The small population of the territory, which is around 100,000, coupled with the closeknit nature of the community, raises issues when it comes to jury selection in criminal matters. Potential jurors frequently have some connection to the parties to a case or have heard about the incident and formed an opinion, prohibiting them from sitting on the jury. Every few weeks, there is only one jury pool for each of the two districts — the District of St. Croix and the District of St. Thomas and St. John — consisting of around 80 prospective jurors. If the jury pool is exhausted and a full 12-person jury and alternates cannot be selected, the case must be continued.

Compounding the problem, the vast majority of people accused of crimes in the territory are classified as indigent, meaning they cannot afford to hire private counsel. As such, their cases are assigned to the Office of the Territorial Public Defender. As of September 2023, the public defender’s office was handling over 750 active cases, divided between only 13 attorneys. Whenever the office recuses itself from a case — for example, because of a conflict of interest with another client — the case is supposed to be reassigned first to an understaffed panel of volunteer attorneys, and then, if no volunteer is available, to a regularly admitted member of the Virgin Islands bar. This results in a significant number of serious felony cases being assigned to attorneys with little to no criminal law experience, attorneys who do not have malpractice insurance for criminal matters, and attorneys who live outside the territory and request to be relieved as counsel due to the cost of travel and lodging associated with the potential representation. When an attorney makes a motion to be relieved for one or multiple of these reasons, the case must be reassigned, resulting in more delays.

To date, however, the Virgin Islands Supreme Court has never found a violation of anyone’s right to a speedy trial. In one case, it excused a more than eight-year delay, “including nearly four years attributable to the prosecution,” because the defendant “was neither consistent in asserting his right to speedy trial nor able to demonstrate more than minimal prejudice arising from that delay.”

Recent reforms to the process of appointing counsel to indigent people are unlikely to solve the problem. Last year, the Virgin Islands Supreme Court established the Office of Conflict Counsel as a new back-up for the public defender. The office is meant to provide representation for indigent people whenever a conflict prevents the public defender from doing so. However, the new office cannot begin its work until funding is approved by the legislature.

This most recent reform follows other largely unsuccessful attempts to speed up trials in the territory. In 2015, the Virgin Islands Supreme Court struck down the involuntary appointment system. The court held that involuntarily conscripting attorneys to represent indigent people in criminal proceedings violated a Virgin Islands law that required the convening of a panel of volunteer attorneys to represent indigent persons.

Following that ruling, the Supreme Court established private attorney panels to serve as the second step following the public defender’s recusal. As a result, a regularly admitted member of the bar could only be appointed to a criminal case following a finding that both the public defender and the panel attorneys could not provide adequate representation. However, the panels have not done much to speed up the process, as they rely on attorneys to volunteer and very few people have signed up.

A constitution for the Virgin Islands would give the territory the opportunity to strengthen its speedy trial rights beyond the federal constitutional floor. Although Congress passed a law in 1976 empowering the Virgin Islands to adopt its own constitution through a constitutional convention process, the territory has had five unsuccessful constitutional conventions, with a sixth possible in the coming years. Advocates of the Virgin Islands adopting its own constitution say that doing so would free the Virgin Islands to make amendments and fashion constitutional rights as the people of the territory see fit, without engagement or approval of the federal government. Currently, any changes to the governing document — the Revised Organic Act — must be made by Congress.

Short of adopting a constitution with a robust speedy trial guarantee, a speedy trial act to mandate time limits on prosecutions could go far in improving the situation. Many states and the federal government have an act that gives courts specific instructions as to the speed with which criminal prosecutions must progress. When the prosecution lags beyond the allotted time, a court will dismiss the case.

It remains to be seen whether the creation of the Office of Conflict Counsel will help protect the right to a speedy trial in the Virgin Islands. Should this most recent reform fail, the people of the Virgin Islands can — and should — focus on protecting this fundamental right by statute or constitution.

Alexa Askari is a staff attorney at Appellate Advocates and former judicial clerk to the Hon. Judge Douglas A. Brady at the Superior Court of the Virgin Islands, District of St. Croix.