Background
Gunnar Britsch was charged in Scotts Bluff County Court on December 7, 2023, with driving while intoxicated (second offense) and refusal to submit to a preliminary breath test. A pretrial hearing was set for January 30, 2024. When the hearing occurred, Judge Worden stated he knew Britsch personally and recused himself, transferring the case to Judge Mickey’s docket and rescheduling the pretrial to March 11. Neither party objected. Due to Judge Mickey’s scheduling conflict, the pretrial was continued to April 8. On that date, newly disclosed discovery arrived, and with Britsch’s counsel’s consent, the court scheduled another continuance to May 13 to allow review time. Trial was eventually set for July 25, 2024.
On July 25, Britsch moved for absolute discharge under Neb. Rev. Stat. § 29-1207, claiming a statutory speedy trial violation. Under Nebraska law, a defendant must be tried within six months or is entitled to automatic discharge unless the state proves certain time periods are excludable. The county court denied the motion, finding that various delays totaling 69 days could be properly excluded, extending the deadline beyond July 25. The district court affirmed, and Britsch appealed.
The Court’s Holding
The Nebraska Court of Appeals affirmed, holding that the state properly excluded 105 days from the speedy trial calculation. First, the court excluded 41 days for Judge Worden’s recusal (January 30 to March 11), finding that mandatory judicial disqualification to protect a defendant’s due process right to an impartial judge constitutes “good cause” under § 29-1207(4)(f). The court noted that both the Nebraska Code of Judicial Conduct and the Due Process Clauses of the U.S. and Nebraska Constitutions require judges to recuse when impartiality might be questioned.
Second, the court excluded 28 days for Judge Mickey’s scheduling conflict (March 11 to April 8), reasoning that the timing—just three weeks after reassignment and limited to four weeks of delay—supported the inference that the conflict arose as a direct, reasonable consequence of the case reassignment. Third, the court excluded 35 days for the discovery continuance (April 8 to May 13), holding that Britsch’s counsel consented to this delay under § 29-1207(4)(b). The court held that a defendant’s verbal statement preserving a speedy trial objection does not negate actual consent to a continuance: “if it looks like a continuance and sounds like a continuance, it is a continuance.” The total of 105 excludable days extended the deadline to September 19, 2024, well past the July 25 trial date.
Key Takeaways
- Judicial recusal to protect constitutional due process rights automatically constitutes good cause to exclude time from speedy trial calculations.
- Scheduling delays that reasonably flow from a judge’s reassignment may be excludable without elaborate factual findings, where the timing and duration are consistent with unavoidable rescheduling.
- A defendant’s consent to a continuance is excludable under statute even if the defendant simultaneously makes a general speedy trial objection; verbal objections do not override actual consent.
- The state bears the burden to prove excludable periods by a preponderance of the evidence, but appellate courts may consider additional excludable periods not addressed by the trial court when assessing speedy trial compliance.
Why It Matters
This decision provides important guidance on how Nebraska courts handle speedy trial deadlines in common judicial scenarios. When a judge must recuse, courts can exclude not only the recusal period itself but also reasonable scheduling delays that follow, without requiring detailed explanations beyond the bare facts. This recognizes the practical reality that reassigning cases creates scheduling friction. The ruling also protects judges’ ability to maintain impartiality—a constitutional priority—by ensuring that recusal decisions do not operate as traps for prosecutors.
Equally important is the court’s treatment of defendant consent. By clarifying that verbal speedy trial reservations do not override substantive consent to continuances, the decision prevents defendants from gaming the system. A defendant who agrees to additional time to review discovery cannot then benefit from claiming surprise when that time is deemed excludable. This preserves the statutory framework’s balance between protecting speedy trial rights and accommodating legitimate needs for case preparation.