Sixth Circuit Court of Appeals

The District Court for the State of Arizona declared a judicial emergency and suspended statutory deadlines for starting criminal trials due to the heavy caseload and the lack of a full roster of judges. The court which had some of the most crowded dockets in the nation just suffered the death of its Chief Judge John Roll who was killed in the massacre in which Congressmember Gabrielle Giffords was shot in Tucson. The Court now has three vacancies. The recent crackdown on immigration cases has placed a significant strain on the court and increased its caseload.

The Speedy Trial Act, 18 USC 1861 sets various deadlines for criminal cases, Among others it requires that defendants be indicted within 30 days of being arrested and, with certain exceptions that trials be commence within 70 days. But Section 3174, allows the Judicial Counsel of the Circuit, in this case the Ninth Circuit, upon the request of the chief judge of the District Court to suspend the deadlines.

The suspension lasts through February 19, 2012.

The Constitutional requirement of a speedy trial is not necessarily affected by the suspension. The courts have never set a specific time in which defendants must be brought to trial. Rather they have considered each case on a individual basis. In Barker v. Wingo the Supreme Court set four factors that must be considered in determining whether there is a violation of the Sixth Amendment’s speedy trial provision. First the length of the delay. Second the government’s reason for the delay. Third, whether the defendant asserted his right to a speedy trial and finally the degree of prejudice to the defendant.

While a violation of the Speedy Trial Act does not necessarily mean there is a violation of the Sixth Amendment causing a dismissal of the case it certainly affects the first element which is the length of the delay. We can certainly expect numerous motions to dismiss in the District Court for the District of Arizona as a result of the suspension of the Speedy Trial Act deadlines. But we should expect that under the second factor the court will be unlikely to grant many motions in light of a strong governmental reason, the lack of judges to hear the cases. The defendants will have to show a strong prejudice such as the death of a percipient witness who was likely to exonerate them in order to win the motions.

The Supreme Court, yesterday in Bloate v. United States ruled that time used to prepare motions in Federal cases is not automatically excluded from the 70 day period under the Speedy Trial Act in which a case must be brought to trial. Rather under 18 USC 3161 (h)(1) the time may be excluded only if the District Court Judge makes a finding pursuant to 18 USC 3161 (h)(8A) “that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.”

James Bloate was indicted on August 24, 2006 for being a felon in possession of a firearm initiating the 70 day speedy trial period. The Judge ordered that pretrial motions be filed by September 13. On September 7, the defendant moved to continue the due date for motions until September 21 and the Court granted the motion. On September 25 the defendant filed a waiver of pretrial motions and the Court held a hearing on October 4 where it found the waiver “voluntary and intelligent.”

The question in this appeal is whether the period during which the defendant considered whether or not to file motions is excluded from the 70 day speedy trial period.

18 USC 3161(h)(1)(F) automatically excludes “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” The court found that this language automatically excludes the time from the filing of the motion to the time that that the hearing on the motion is completed. It reasons that if Congress wanted to also include time during which motions were prepared if would have so stated. Of course this does not prevent the District Court from making finding pursuant to 3161 (h)(8A) excluding preparatory time from the 70 day period.

The dissent argues that it is unfair to allow the defendant to benefit from a judge’s decision granting him more time to file motions when the defendant requested the time. However, as the majority points out the specific language of 18 USC 3161(h)(1)(F) takes priority over the more general language found in 18 USC 3161(h)(1)(A) which excludes “delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant.”

A better solution, in order to prevent the defendant receiving a windfall as a result of his or her own motion to continue the proceedings would be to amend the statute to exclude any time that proceedings are continued as a result of a defendant’s motion.