THE TRAGIC DEMISE OF A RIGHT TO A SPEEDY TRIAL
A CONSTITUTIONAL REPUBLIC CAN ONLY BE POSSIBLE
FOR A MORAL PEOPLE
It is this writer’s opinion that the framers did not define, numerically, what speedy meant nor what excessive bail meant, because they knew that, for the constitutional republic to succeed, it depended on a moral people who sought to serve and protect rather than to subjugate and abuse.
A judge, who presided over a trial, was expected to have a moral compass that guided him/her in defining “speedy” in the best interests of the accused. Like a loving teacher or parent, the desire for the quickest but also fairest trial possible would be as natural as the sun rising in the morning, and no need for a numerical definition, because it would be the shortest time that was within human power to grant.
Under the utopia envisioned by the founders, the new republic would be governed by a people who had only the best interests of their neighbor at heart, and the need for a Law of Moses type minutia, with thousands of rules and regulations, would be replaced by a Christian “Two Great Commandments” of loving God, fellowman and self, replacing the need for rigid rules, quotas and numbers.
It is important to note that the moral compass was applicable to all people, with the majority of citizens expected to behave in such a way that the need for criminal trials would be minimal, keeping the courts free from congestion and backlogs.
A ONE-SIDED BILL OF RIGHTS
The Bill of Rights was written only for the sake of the accused, not for the sake of the accuser. This one-sided, seemingly unbalanced approach to rights was intentionally set forth this way as a reminder to a government of how limited they were supposed to be. The Bill of Rights was written for one reason, and one reason only, to establish an impenetrable barrier between government and non-government citizen. The best interests of the public or the compelling interests of the state were left out on purpose, because the state, through government actors, had to be restrained given the historical tendency to move from the role of a righteous and humble public servant to that of a controlling and Machiavellian type leader obsessed with personal gain.
The Bill of Rights assumes that the accuser, which is the state in all criminal matters, has so many resources at its disposal, that it does not need any assistance in order to even the playing field. However, in fulfillment of the founder’s fears, the government has grown into an entity of monstrous proportions and has taken many liberties with the Bill of Rights by giving more power to the accuser, at the expense of the accused, as we shall see with the issue of a Speedy Trial.
GOD’S SPEED TO YOU
The word “Speedy” has a slang quality about it, as in Speedy Gonzalez, but the word goes back to at least the 13th century. Derived from the word “speed”, which originally meant to prosper, to advance, to acquire wealth and to have success and to do so as quickly as possible. The saying, “God’s speed” was not a request for a turbo charger so your car could go faster, it was a blessing of prosperity, not in the indefinite future, but now, quickly and without delay. For centuries, judges and prosecutors sought “God’s speed” according to the culture of the time, and they knew that a “Speedy trial” was not speedy if it did not have behind it, a desire for God’s speed.
With that backdrop, it may be assumed that the Sixth Amendment authors, acting on their desire to bless their fellowman, were entrusting public servants with a lot of discretion, discretion based on a moral compass.
THE SIXTH AMENDMENT
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The Sixth Amendment was put in place “(1) to prevent oppressive pretrial incarceration[,] (2) to minimize anxiety and concern of the accused[,] and (3) to limit the possibility that defense will be impaired.” Hills, 618 F.3d at 631–32.
When the framers of the constitution wrote the Sixth Amendment, they did so within the context of ancient English law. In reaction to the abuse by kings, royalty and the nobles (the elite), political opponents were punished with pretrial prison, often indefinitely. This led to the the Magna Carta provision in 1215:
“To no one will we sell, to no one will we refuse or delay, right or justice.”
Over 400 years later, in 1642, Sir Edward Coke concluded that English judges were required to give a prisoner “full and speedy justice” to avoid the evil of lengthy pretrial detention.
MOVING AWAY FROM THE MORAL COMPASS AND BEST INTERESTS OF THEIR FELLOW MAN
The idea that “justice delayed is justice denied” is ancient. Over the course of the last 9 centuries, since the concept of a speedy trial was first codified, the definition remained intentionally vague because of the assumption that the benefit of the doubt would be given to the accused in effecting a trial as quickly and as thoroughly as possible, until the ends of justice were fairly met.
Like a ship leaving its mooring at a dock, the dock representing the Constitution, the ship representing the state or government, has drifted away from its role and purpose, i.e., the best interests of the individual citizen. The ship, once a small boat with a small crew, has grown to a Titanic, and beyond, with a crew, a military and instruments of force far exceeding the wildest imagination of the founders. With those tools of force, the government feels free to modify and to manipulate the bedrock principles, that worked so well for the first few centuries, for its own self serving purposes at the expense of the individual citizen.
The government often uses the phrase, “the public interest balanced against individual interests” as if the two were inherently contradictory. “Public interest” really is the code word for government interest. The government has become an exclusive club and like the ship leaving the constitution harbor, is self contained with rules for boarding the ship.
Government employees have their own unique world of pay, benefits and privileges, including that they are exempt from Social Security. All this leads to a great dichotomy of non-government individuals versus the government’s interests. These competing interests are what we are seeing in the Bundy et al controversy, with government club members protecting each other against the uppity private citizens. These competing interests lead to the passage of laws that eviscerate the Bill of Rights, a document exclusively created for individual citizens.
THE SPEEDY TRIAL ACT OF 1974 AS AMENDED IN 1979
In 1972, over 700 years after the Magna Carta, the United States Supreme Court grappled with the problem of defining speedy trial in Barker v. Wingo, and developed a four part test to determine if an accused’s constitutional right to a speedy trial had been violated.
- the length of delay
- the reason for the delay
- the time and manner in which the defendant has asserted his right
- the degree of prejudice to the defendant which the delay has caused
See U.S. CONST. amend. VI; Barker v. Wingo, 407 U.S. 514, 529–30 (1972) (stating that the right to a speedy trial is a fundamental right).
In 1974, congress decided to give speedy trial rights more teeth by passing the Speedy Trial Act. The intentions by the good ship government in passing the Speedy Trial Act, seemed to be based on a desire to move back closer to port (the constitution). The author of the legislation, Rep. Mikva, originally called it the Pretrial Crime Reduction Act and said that it, “is an approach to the problems of crime by defendants released prior to trial which does not rely on jailing criminal defendants before they are found guilty. It provides to the judge alternative methods to insure supervision and control of dangerous defendants, it provides pretrial services agencies with adequate resources to make those pretrial controls effective, and it insures that defendants are brought to trial quickly enough that the pretrial controls need be used only for a minimum time.”
Notice that the original legislative intent was the reduction of pretrial detention because the due process matters at trial would move quickly and fairly, reducing the amount of time a defendant had to commit a crime if released pending trial. But, Mikva is also acknowledging the devastating harm to defendants and to the presumption of innocence occasioned by courts detaining prisoners prior to trial because the courts can’t move fast enough. Fast forwarding today, we see that Rep. Mikva would be disappointed in the results, as the number of prisons and pretrial prisoners have grown exponentially, with many accused never going to trial but opt for a plea deal instead.
The Speedy Trial Act, as amended in 1979, is complex and has loop holes in it that the government ship could pass through. Trial must commence within 70 days from the date the information or indictment was filed, or from the date the defendant appears before an officer of the court in which the charge is pending, whichever is later. Additionally, Congress added a provision allowing a minimum of 30 days for trial preparation, unless waived by the defendant, so as to not be so speedy as to deny adequate trial preparation time.
If trial ends in a mistrial, or the court grants a motion for a new trial, the second trial must begin within 70 days “from the date the action occasioning the retrial becomes final.” 18 U.S.C. § 3161(e).
The Act, when first passed in 1974, provided for tough standards of dismissal with prejudice (meaning the case could not be taken up again). When amended in 1979, Congress made it much easier to get around these standards for dismissal and left it to the discretion of the court to decide if it was to be with prejudice or without prejudice (meaning the issues could be tried again).
A SPEEDY TRIAL IS MORE OF A MYTH THAN A REALITY
You may be scratching your head and wondering how could the 70 day time limit, plus the 30 days trial preparation time for a total of 100 days, have anything to do with the Bundy et al defendants given that the majority of them have been in prison for over 480 days as of May 20, 2017.
Enter the “ends of justice” exclusions of the Speedy Trial Act, or as I like to call them, the “end” of justice. Congress recognized that the obstacles to a speedy trial included many factors that could be excluded from the time limits and spelled out what some of those “ends of justice” exclusions were, while at the same time giving wide discretion to the courts to decide what can be excluded from the time limits. These exclusions and exceptions to the time limits in the Act, are the loopholes that a ship could go through. As one legal expert commented, “ the right to a speedy trial may be more myth than reality” in how the Act is applied in many federal circuit courts of appeal.
WHAT DOES SPEED HAVE TO DO WITH IT?: AN ANALYSIS OF THE SEVENTH CIRCUIT’S APPLICATION OF THE SPEEDY TRIAL ACT pg 115
The following periods of delay shall be excluded in
computing the time within which an information or an
indictment must be filed, or in computing the time within
which the trial of any such offense must commence:
(1) any period of delay resulting from other proceedings
concerning the defendant, including but not limited to
(A) delay resulting from any proceeding . . . to determine
the mental competency or physical capacity of the defendant;
(B) delay resulting from trial with respect to other
charges against the defendant;
(C) delay resulting from any interlocutory appeal;
(D) 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;
(E) delay resulting from any proceeding relating to the transfer of a case or the removal of any defendant from another district . . .;
(F) delay resulting from transportation of any defendant . . .;
(G) delay resulting from consideration by the court of a proposed plea agreement . . .; and
(H) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.
In addition, a period of delay to allow the defendant to demonstrate his good conduct and a “period of delay resulting from the absence or unavailability of the defendant or an essential witness” are excluded. Furthermore, delay because a continuance is granted by a judge on his own motion or at the request of the defendant or government is also excluded.
If, after all these exceptions and exclusions are considered, the court finds that there was a violation of the Speedy Trial Act, courts have significant discretion when deciding if a violation occurred and whether to dismiss with or without prejudice. United States v. Fountain, 840 F.2d 509, 512 (7th Cir. 1988).
PROSECUTORIAL DELAYS AND LAZINESS UPHELD BY FEDERAL COURTS
The government crew, watching out for one another, has led to the federal circuit courts ruling that only dismissal without prejudice should be granted despite the fact that there were lengthy delays and laziness on the part of the prosecution. See, e.g., Sykes, 614 F.3d at 305–06; Hills, 618 F.3d at 631–32; Killingsworth, 507 F.3d at 1087; Arango, 879 F.2d at 1501; Fountain, 840 F.2d at 509.
In Hills, the federal team ruled that delays could be justified based on:
“[W]hether failure to grant a continuance would result in a miscarriage of justice, whether the case is so complex that adequate trial preparation is impossible under the Speedy Trial Act’s time limits, and whether the failure to continue would deny the defendant reasonable time to obtain counsel, or would deny counsel the time necessary for effective preparation.”
TRYING TO MAKE SENSE OUT OF THE DELAYS IN THE BUNDY, ET. AL. CASE
While this writer does not have the advantage of knowing all the details in the Bundy et al case, it is well known that the prosecution has leveraged the exclusion to a speedy trial based on complexity of the case. The problem with complexity as a reason, is that the prosecution can be the creator of the complexity, against the will of the defendants.
The Hills case is distinguishable from the Bundy case because the federal circuit examined the district court’s reasoning for granting the continuance, which included the complexity of the case and the fact that the defendants would not be greatly prejudiced by a delay since they were not in custody.
The Bundys are in custody and thereby greatly prejudiced by the federal team (Navarro and the prosecutors) decision to delay the trial. Delay of the trial works to the benefit of the federal team because:
It places additional pressure on the defendants to accept a plea deal, thereby making an expensive and protracted trial unnecessary
Witnesses and testimony not favorable to the government’s case, have a greater chance of disappearing and memories fading with the passage of time.
Private prisons make profits off of not guilty but detained prisoners through cheap labor and government incentives. Share holders in these private prisons may be linked to government actors through difficult to trace financial instruments.
The threat to the prosecutors, the judge, BLM, the FBI, the Marshal Service and other government entities are reduced as the defendants are not able to effectively go on the offensive and file counter claims on the constitutionality of their actions, their authority and jurisdiction.
The writer observed a few days of trial in Las Vegas with six (6) of the defendants and noted that mountains of evidence and discovery was submitted by the prosecution, under a multiplicity of counts and charges. This was the doing of the prosecution, they created the complexity.
In contrast, the defense tried to reduce it to the most simplest terms, essentially arguing that the defendants came to Bunkerville spontaneously, under a first amendment right to assemble and to protest. There was no conspiracy nor was there any intent to impede federal officers in the performance of their duties unless those officers were exceeding the scope of their authority.
The jury seemed to be overwhelmed by the confusing and convoluted mountain of information from the prosecution, including the 50 pages of jury instructions, which ultimately led to a hung jury and a mistrial. The vote was 10 to 2 in favor of acquittal with evidence that the jury may have voted 12 to 0 for acquittal prior to undue influence by the judge.
The government ship, has given itself abundant loop holes against the threat of being tethered to a speedy trial requirement. With so much discretion and so much common law on their side, prosecutor Myhre and his federal team (Navarro included) can safely claim that they are excluded from violating the Speedy Trial Act due the “ends of justice” exclusions afforded to them and they may even be able to break the 5 year record of not violating the speedy trial act.
Nevertheless, this writer fervently hopes that aggressive defense attorneys will file a flurry of motions and claims against the federal team and that at least some of the claims will gain traction.
The new Attorney General for the Trump administration is a dark cloud on the horizon, as he has advocated for more prisons and a more intense “get tough on crime” policy.
Getting tough on crime is a pretext for many anti-Bill of Rights laws, for mandatory minimum sentencing such as those that have turned the lives of the Hammond family into a hell. Getting tough on crime laws and punishments assume that the creators and administrators of such tough, draconian laws are moral people with a moral compass. When we see good people like the Hammonds and the Bundys become victims to such tough-on-crime laws, then we know that it is due to moral bankruptcy.
As the writer has stated previously, this issue is not only about the Bundys et al, it is about all of us. With the growth of private prisons and their insatiable appetite for more not guilty, not convicted prisoners, we are all under extreme peril. It behooves us to visit our elected representatives and demand that the government ship be brought back to port and tightly bound to the dock (the constitution)