Permanent Waiver of Statutory Speedy-Trial Rights After an Unsuccessful Discharge Motion and Interlocutory Appeal: State v. Parks (319 Neb. 773)

Introduction

In State v. Parks, 319 Neb. 773 (Neb. 2025), the Nebraska Supreme Court affirmed convictions arising from a double homicide and related firearms and narcotics charges. The case is doctrinally significant for its clear articulation that a defendant permanently waives the statutory right to a speedy trial under Neb. Rev. Stat. § 29-1207(4)(b) when an ultimately unsuccessful motion for absolute discharge—and the associated interlocutory appeal—push a timely scheduled trial date beyond the six-month period (as calculated on the filing date of the discharge motion). The Court also aligned the standard of review for constitutional speedy-trial claims with the statutory framework, reaffirmed the law-of-the-case doctrine’s preclusive effect after an interlocutory appeal, clarified the attribution of delay to defense counsel rather than the State, upheld Douglas County’s “no personal copy” discovery practice for jailed defendants, and applied settled principles in denying a mistrial and several ineffective-assistance claims.

Background

The State charged John L. Parks with two counts of first-degree murder and five related felonies after two victims were shot in a hotel parking lot on July 30, 2020. The information was filed May 7, 2021, later amended to add a habitual criminal allegation. Appointed counsel successfully sought discovery, orally continued several pretrial conferences (with orders reciting client consent to tolling), and filed motions to depose two witnesses. Parks, pro se, moved to have personal possession of discovery materials while detained, which was denied consistent with local practice.

Parks later retained new counsel, who continued the pretrial conference and trial (from May 16 to September 21, 2022). On September 19, 2022, Parks moved for absolute discharge on statutory and constitutional speedy-trial grounds, arguing that delays from his appointed counsel’s continuances and deposition motions should not be attributed to him. The district court denied discharge, attributing 453 excludable days to defense motions (appointed and retained) and just 49 non-excludable days to the State. The Nebraska Court of Appeals affirmed on interlocutory appeal (and lacked jurisdiction to consider constitutional speedy-trial claims at that stage). Parks petitioned for further review; the petition was denied.

At trial in December 2023, Parks renewed his discharge motion (denied), and sought a mistrial based partly on a video found on a victim’s phone and on brief testimony referencing his probation/parole status and seized cash. The court denied a mistrial. The jury convicted on all counts; the court found Parks a habitual criminal and imposed consecutive life and term sentences. On direct appeal, Parks challenged statutory and constitutional speedy-trial rulings, the handling of deposition motions, denial of personal access to discovery, denial of a mistrial, and raised multiple ineffective-assistance claims.

Summary of the Judgment

• Law-of-the-case bars relitigation of the initial statutory speedy-trial discharge ruling. Parks’ interlocutory appeal to the Court of Appeals resolved his statutory speedy-trial challenges to appointed counsel’s continuances, the deposition motions, and personal-access-to-discovery issues; he could not reassert them on direct appeal.
• Permanent waiver of statutory speedy-trial rights. Under § 29-1207(4)(b) and State v. Mortensen/State v. Riessland, Parks permanently waived statutory speedy-trial rights because his unsuccessful discharge motion and appeal continued a trial that had been timely set (after counting excludable time) to a date outside the six-month period. Older “clock-resumes-after-appeal” cases predating the 2010 amendment to § 29-1207(4)(b) are inapposite. Once waived, no exact day-by-day recalculation is required.
• Constitutional speedy trial. Applying Barker v. Wingo, the Court held there was no constitutional violation: the serious/complex case diminished the weight of delay; the reasons for delay primarily lay with the defense (continuances and pretrial motions), there was no systemic breakdown in indigent defense, Parks’ assertions of the right were undermined by defense continuances and a late-filed discharge motion, and he failed to show actual prejudice.
• Discovery access. No abuse of discretion in denying personal possession of discovery to an incarcerated defendant. Section 29-1912 permits inspection/copying but does not require providing an inmate personal copies. The limitation did not violate the constitutional right to present a complete defense.
• Mistrial. Denial of mistrial was within discretion. Opening statements are not evidence, the jury was instructed accordingly, and evidence of the murder of Parks’ son was relevant to motive and not unfairly prejudicial under Rule 403.
• Ineffective assistance. All claims failed on the record: prejudice was speculative or absent (including on continuances, deposition motions, discovery-access agreements, and discovery review). Counsel in fact filed a petition for further review after the interlocutory appeal, defeating that specific claim.

Detailed Analysis

Precedents Cited and Their Role

• Nebraska speedy-trial statutes (§§ 29-1207, 29-1208): six-month trial deadline measured by excluding time for defense pretrial motions (§ 29-1207(4)(a)) and defense-requested/consented continuances (§ 29-1207(4)(b)). Calculation method reaffirmed (exclude filing day, count six months, back up a day, then add excludable periods).
• State v. Mortensen, 287 Neb. 158 (2014) and State v. Riessland, 310 Neb. 262 (2021): A motion for discharge is effectively a defense-requested continuance; when an unsuccessful discharge motion continues a timely set trial past the six-month limit, the defendant permanently waives statutory speedy-trial rights under § 29-1207(4)(b).
• State v. Lear, 316 Neb. 14 (2024): Once a defendant waives the statutory right, courts need not precisely recalculate remaining days.
• Older cases distinguished: State v. Baker (2002) and State v. Ward (1999) (pre-2010 amendment) allowed “clock resumes after appeal” arguments; Parks deems them inapposite under the amended statute.
• Law-of-the-case: The doctrine precludes relitigating issues decided in an earlier stage (including on interlocutory appeal); an appellate holding settles all matters ruled upon expressly or by necessary implication.
• Constitutional speedy trial: Barker v. Wingo (U.S. 1972) factors; Doggett v. United States (U.S. 1992) on evaluating “reason for delay”; State v. Brown, 310 Neb. 224 (2021) and State v. Short, 310 Neb. 81 (2021) on presumptive prejudice and the rarity of constitutional violations where statutory time limits are met or tolled.
• Attribution of delay to defense counsel: Vermont v. Brillon, 556 U.S. 81 (2009) holds that counsel-caused delay counts against the defendant absent systemic breakdown; Parks found no such breakdown.
• Record integrity: Sulzle v. Sulzle, 318 Neb. 194 (2024): the transcript “imports absolute verity”; errors must be corrected in the trial court. Oral argument is not evidence.
• Defense pretrial motions: State v. Murphy, 255 Neb. 797 (1998) treats motions to depose as pretrial motions that toll time under § 29-1207(4)(a); State v. Turner, 252 Neb. 620 (1997) assigns responsibility for moving defense motions forward to the defense; delays in hearing defense motions are generally attributed to the defendant.
• Discovery limits: State v. Figures, 308 Neb. 801 (2021): § 29-1912 permits inspection/copying but does not require giving jailed defendants personal copies. State v. Henderson, 289 Neb. 271 (2014) and State v. Sellers, 279 Neb. 220 (2010) on the constitutional “complete defense” right and its limits.
• Mistrial and evidentiary standards: State v. Lenhart, 317 Neb. 787 (2024) on “actual prejudice” for mistrial; State v. Mabior, 314 Neb. 932 (2023) on relevance; State v. Moore, 317 Neb. 493 (2024) on Rule 403; State v. Barnes, 317 Neb. 517 (2024) on presumption juries follow instructions.
• Ineffective assistance: Strickland v. Washington (U.S. 1984) framework; Nebraska cases on record-sufficiency and pleading specificity on direct appeal (e.g., State v. Corral, 318 Neb. 940 (2025); State v. Goynes, 318 Neb. 413 (2025); State v. Mrza, 302 Neb. 931 (2019)).

Legal Reasoning

A. Statutory speedy-trial rights

The Court addressed two stages. First, it held Parks’ renewed attempt to rehash statutory issues resolved in his interlocutory appeal was barred by law-of-the-case. The Court of Appeals had affirmed the denial of discharge; Parks’ petition for further review was denied; thus those rulings were conclusive.

Second, on his renewed discharge motion at trial, the Court applied Mortensen/Riessland to conclude that Parks permanently waived his § 29-1207 rights. The timeline was pivotal: with defense-generated exclusions, the case had a timely trial date (September 21, 2022) within the statutory window. Parks’ unsuccessful discharge motion and ensuing interlocutory appeal necessarily continued trial past the six-month endpoint (as calculated on the filing date of the discharge motion), culminating in a permanent waiver. The Court rejected Parks’ invitation to craft an exception for “exceptional cases,” pointing to the statute’s plain text—amended in 2010 to deem the right waived when a defense-requested continuance extends beyond six months—and declined to revive pre-2010 precedent. Because waiver had occurred, there was no need to undertake a fresh day count or to parse whether deposition motions tolled time after the mandate; the right no longer existed to be asserted.

B. Constitutional speedy-trial rights

The Court expressly adopted a unified standard of review for constitutional speedy-trial claims mirroring statutory cases: factual findings are reviewed for clear error; legal conclusions de novo. On the merits, applying Barker:

• Length of delay. Although Parks claimed over a year of non-attributable delay, the Court emphasized the seriousness and complexity (first-degree murders and multiple felonies), which makes longer delays more tolerable. Any presumption of prejudice was weakened by case complexity.
• Reason for delay. The defense drove most delays via continuances and pretrial motions. Under Brillon, attorney-caused defense delay is attributed to the defendant absent systemic breakdown; none was shown here. The Court rejected reliance on unsworn comments to impeach formal orders reciting Parks’ consent (the transcript “imports absolute verity”) and underscored that courts are not obliged to sua sponte chase defense motions (Turner 1997). Alleged “systemic failures” by the public defender’s office or the court were unsupported.
• Assertion of the right. Parks’ assertions were undercut by defense continuances, his simultaneous call for additional motions (e.g., suppression), and his late filing of a discharge motion despite claiming an early expiration of the clock. This factor did not meaningfully help him.
• Prejudice. Because the State proceeded with reasonable diligence and defense caused much of the delay, Parks needed to show actual prejudice. Generalized pretrial incarceration and anxiety were insufficient. He did not substantiate impairment of his defense in the record presented. This factor weighed against him.

Balancing the factors, the Court found no constitutional speedy-trial violation.

C. Discovery access and the right to present a complete defense

Parks twice sought personal possession of discovery while jailed. The Court reaffirmed Figures: § 29-1912 allows defendants to “inspect and copy or photograph” discovery but does not require providing an inmate his own copies. The district court had granted statutory discovery to counsel; denying Parks personal copies therefore did not offend the statute or require special written findings.

Constitutionally, the Court explained that restrictions on personal possession did not deny a “meaningful opportunity to present a complete defense” because Parks could review discovery with counsel. As in Henderson and Sellers, he could pursue his theory (third-party shooter) and challenge the State’s identifications without personal custody of materials. The Court also noted legitimate institutional interests cautioning against giving inmates their own sets of sensitive discovery (e.g., safety of witnesses, potential for misuse within detention facilities).

D. Mistrial

The State previewed in opening that a video on a victim’s phone showing a murder had been “interacted with” shortly before the homicides; later, a time-conversion error surfaced and the video was not offered. Parks sought a mistrial, also objecting to testimony briefly referencing that he was on probation/parole and had cash seized. Applying the “actual prejudice” standard:

• Opening statements are not evidence, and juries are presumed to follow instructions. The misstatement did not undermine the verdict; indeed, it arguably aided the defense in highlighting the State’s failure to deliver promised evidence.
• Evidence of the murder of Parks’ son was relevant to motive in light of eyewitness testimony (Lee) that Parks believed the victim had a role in his son’s killing. While harmful, it was not unfairly prejudicial under Rule 403.

The trial court did not abuse its discretion in denying a mistrial.

E. Ineffective assistance of counsel

Applying Strickland and Nebraska’s direct-appeal record sufficiency rules, the Court rejected each claim:

• Failure to assert speedy-trial rights / continuances contrary to wishes. Even if deficient, Parks did not show prejudice. It was speculative to assume the State would have missed the six-month deadline absent continuances; and claims of witness coercion lacked specifics and record support.
• Discovery-access agreements. No prejudice where the court’s orders—not counsel’s stipulations—limited personal possession; moreover, the defense could pursue its theories through counsel-led review.
• Failure to withdraw or obtain rulings on deposition motions. Any added delay was minimal relative to defense continuances; it would not have changed the discharge outcomes, especially given the permanent waiver rule.
• Failure to “review discovery.” The pleaded claim focused on the lack of counsel’s in-person review with Parks at the jail; even if reached, the claimed prejudice (earlier discovery of the video time error) would not change admissibility of the son-murder motive evidence or the trial result.
• Failure to seek further review. Factually incorrect: retained counsel did petition for further review; it was denied.

Impact and Significance

State v. Parks cements several practical and doctrinal points:

• No “reset” after an appeal: permanent waiver under § 29-1207(4)(b). Defense counsel must advise clients that filing a discharge motion—if it results in continuing a timely trial past the six-month mark and is ultimately unsuccessful—permanently waives the statutory right. The clock does not restart after an interlocutory appeal under the post-2010 statute.
• Strategic costs of discharge motions. Defense must weigh the benefit of forcing a statutory deadline ruling against the risk of permanent waiver if the case was otherwise set within the tolled window.
• Record management matters. If defense believes scheduling orders or recitals (e.g., consent to tolling) are inaccurate, the remedy is a motion to correct in the trial court. Appellate courts will treat the transcript as conclusive; unsworn courtroom statements will not impeach it.
• Deposition motions toll time. Motions to depose are pretrial motions that stop the clock; trial courts are not obliged to sua sponte decide them. The moving party bears responsibility to press them; delays are attributed to the defense absent a contrary record.
• Constitutional speedy-trial claims remain hard to win when statutory time is tolled. Barker analysis will weigh defense-caused delays heavily against defendants, especially in serious, complex cases and absent proof of actual prejudice.
• Discovery-access policies for jailed defendants affirmed. Figures remains controlling: courts may deny personal possession of materials while ensuring counsel-reviewed access, without violating statutory or constitutional rights.
• Mistrial standards reaffirmed. Opening statement missteps rarely warrant mistrial absent non-curable prejudice; relevant motive evidence will often survive Rule 403 challenges, especially when grounded in eyewitness testimony.

Complex Concepts Simplified

• Six-month statutory speedy-trial deadline (Nebraska): Start with the information’s filing date (exclude that day), count six months, step back one day. Then add the days during which the clock is stopped by defense pretrial motions or defense-requested/consented continuances. The last resulting date is the statutory deadline.
• Permanent waiver via § 29-1207(4)(b): If a defense-requested continuance—including time caused by a defense discharge motion—pushes a timely set trial beyond the six-month deadline and the discharge motion fails, the statutory right is permanently waived. No further day-by-day calculation is needed.
• Law-of-the-case: Once an appellate court decides an issue in a case, that decision binds later stages of the same case; parties cannot relitigate the same issue on a new appeal in that case.
• Barker v. Wingo test (constitutional speedy trial): Courts balance four factors—length of delay, reasons for delay, the defendant’s assertion of the right, and prejudice. No single factor is dispositive; defense-caused delays count against defendants.
• “Transcript imports absolute verity”: The written court record controls. If a party believes it is wrong, they must ask the trial court to correct it; appellate courts will not treat off-the-record statements as proof the record is wrong.
• Discovery access for inmates: Defendants must be allowed to review discovery with their lawyers, but they are not entitled to keep personal copies in jail. Safety and integrity concerns justify limits.
• Mistrial threshold: A mistrial is warranted only if prejudice from an event cannot be cured by instructions and prevents a fair trial. Opening statements are not evidence, and juries are presumed to follow instructions.

Conclusion

State v. Parks provides a robust and practical clarification of Nebraska’s speedy-trial framework. Most notably, it confirms that an unsuccessful discharge motion—and the delays it and its appeal occasion—can permanently waive the statutory right under § 29-1207(4)(b) when a trial otherwise set within the tolled six-month window is continued past that limit. The Court’s application of law-of-the-case prevents re-litigation of statutory speedy-trial arguments resolved on interlocutory appeal. On the constitutional side, the Court’s Barker analysis confirms that defense-generated delays, especially in serious cases, are generally attributed to the defendant and will defeat speedy-trial claims absent a concrete showing of prejudice.

Parks also reaffirms the limits of inmate discovery access, the demanding standards for mistrials, and the rigorous, record-based approach to ineffective-assistance claims on direct appeal. Taken together, the decision provides clear guidance to defense counsel, prosecutors, and trial judges on how to calculate, preserve, and litigate speedy-trial rights and related pretrial practices in Nebraska.