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THE SPEEDY TRIAL ACT AMENDMENTS OF 1979

HEARINGS BEFORE THE

OOMMITTEE ON THE JUDIOIARY UNITED STATES SENATE

47-230

NINETY-SIXTH CONGRESS

, FIRST SESSION

ON

s. 961 and S. 1028 T9 AMEND THE SPEEI)Y TlHAL ACT OF 1974

MAY 2 AND 10, 1979

Printed for the use of the Committe.e on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 1979

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"'"'EE ON THE JUDICIARY COMMI-........

[96th COngresslhusetts Ohairman

EDWARD M. KENNEDY, :;:~~ TRUR~ON~;:~~ i:.~~::Yland 1 diana CRARLES MCC. M

BIRCR BAYHi::D West Virginia PAUL LAXALT, Neva!h .. ROBERT C. BIDmN' In Delaware ORRIN G. HA.TCH, U

OSEPR R. B r.<, ., DOLE, Kansas ;OHN C. CUL~~i~~AUM' Ohio ~~:;gOCHRAN' M;\:::~ ROW AllD MCONCINI, Arizona ALAN K. SIMPSON, Y DENNIS DE L",."<MT Vermont

RICK J ,Jl,a.u-"" PAT AUCUS, Montana r ~~:LL REFLIN, Alabama Ohlef Oounsel o.nd Statl Direoto , DAVID 'BOlES, WlDElS Oounsel

BUR'l! 'Ooun8el

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MARK GITENS:~:;ritli oounsel ERIC HUL'l!UAN,

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CONTENTS

OPENING STATEMENT

Biden, Hon. Joseph R., a U.S. Senator from the State of Delaware _____ _

PROPOSED LEGISLATION

S. 961, a bil~ to amend the Speedy Tri~l Act of 1974 __________________ _ S. 1028, a blll to amend the Speedy Trial Act of 1974 _________________ _

CHRONOLOGICAL LIST OF WITNESSES

WEDNESDAY, MAY 2, 1979

Voss, Hon. Allen, Director, General Government Division, General Ac­counting Office, accompanied by: John Ols, Assistant Director, General Government Division; Frank Reynolds, Supervisory Auditor, Detroit regional office; Ken Mead, staff attorney __________________________ _

Heymann, Hon. Philip B., Assistant Attorney General, Department of Justice, accompanied by: James McMullin, Institute for Law and Social Research; Roger Pauley, Director, Office of Legislative Affairs; George Bridges, Office for Improvement, Administration of Justice ___ _

Harvey, Hon. Alexander II, Chairman, Committee on Criminal Law of the Judicial Conference, Baltimore, Md., accompanied by: Anthony Partridge, Judicial Center; and Norbert Halloran, Administrative Office~ ________________________________________________________ _

THURSDAY, MAY 10, 1979

Freed, Prof. Daniel J., Yale Law School~ New Haven, Coon ___________ _ Clearly, John, executive director of Federal Defenders of San Diego, Inc.,

and legislative chairman of the Defender Commission of the National Legal Aid and Defender Association of San Diego, Calif __ :.. __________ _

Isbell, David, American Civil Liberties Union, Washington, D.C., ac-companied by Mark D. Nozette _____ -' ___________ ..: __ .,.--------------

Martoche, Salvatore R., National Association of Criminal ;Defense Law-YElrs,Buffalo, N. Y.,accompanied by Louis A. HaremskL ____________ _

Peckham, Hon. Robert, U.S. district judge, northern district of California __ Ward, Hon. Robert J., U.S. district judge, southern district of New York_

ALPHABETICAL LISTING AND MATERIALS SUBl\UTTED American Civil Liberties Union ____________________________________ _ Cleary, John: Testimony _______________________________________ .. ___________ _

Prepared statement __________ -- _______________________________ _ Freed, Prof. Daniel J.: Testimony ________________________________________________ ----

Prepared statement ___________________________________________ _ Haremsk!!..Louis A.: Testimony ____________________________________ _ Harvey, lion. Alexander II: Testimony ___________________________________________________ _

Prepared statement ___________________________________________ _

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Heyma~, Hon. Philip: _________ ------:----------------d~~e;al-ior TestlmOny-----'---M'- Pat Wald, ASsIstant ,Attthornrr S Attorney's

MiAti~:hl~~~ret:o Spe:dy Tria: ~~~ :~~~l~~~ ~~ ___ ~ __ ~ _~ ___ , __ = == == Office ------------ -----------

Prepared -stat;ment-- ---- ------ -- -- -- -- ---- -- -- _____ _ Isbell, David: ---------------:--'---'b--t'-'S-Union--

92 Testimony-----------"b-hali'of the American CIVIl LI er Ie Prepared statement,on e _________ _

Martoche, Salvatore R., ________________ -: __ ,--- f Criminal Testimony------------b'-liaU-;(the National ARsoCIatIOn 0 __ Prepared statement on e _______________________________ ==== __ 115

16 Defense Lawyers-------- ____ -------------------- 92

Mead Ken: T~sti~onyf-C-:--'-ai-Defe~se Lawyers---------------------92

110 Natio~al AssoCIatI?n 0 fimm ______ _ Nozette, Mark D" --------------:--'-L"'b--t:'es-Union--

Testimony-----------b-~aiiof the American CIVIl I er I . Prepared s~atement on ep ______________________________ ===== 16 31

130 Ols John: Testlmonr----------- ___________________________ _ Pa~ley, Roger: Testlm~,ny--------- ____ _ Peckham Hon. Rober-Ii. _________ ,_--------'---

Testimony ---- ---- -- ---- -- -- -= == == == -- -- -- ---- ---- ---- -- -- == == 145

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Prepared stateme~t-- -- -- -- -- - _________ -- -- ------ ------Reynolds, Frank: Testlmony----------- . . _ _ ____ _ Voss Hon. Allen: ________ --------------------- _____ .,-

i30 'Testimony ---------------- - _____ ---- -----------Prepared statemenL- -- -- -- -- ---

Wttrd. Ron. Robert J.: ___________________ --------- 147 Testimony ---- ---- -- -- -- ---- _____ -- -- -- ---- ---- -- -- --------Pr~pared statement-------------

APPENDIX CORRESPONDENCE

PART l._ADDITIONALSTATEMENTS AND -.

TNESSES BEFORE THE SUBCOMMITTEE HEARINGS WI f the United Statee., by

Offi Port to the Congress 0 t-It Impact on General Accounting ce, re t'tled "Slleedy Trial Ac ~ 55

the co~~trolle:te~eS~rn\Jclr~ow~,,, May 2, 19~~'t~eGJ>niied Sta,t~;,-by the _JudiCIal SYt' Office report to the CongrF edss 1 Bail Process Fosters

General Accoun mgGener:U, entitled, "The e era ___________ -:--:---.:.

Gi~:q1r~~~~~1i~ofic7~, !:~~y ~~g;!~tf5gf~~~~~~irlJ!~;i:t Cot~~~~ enera, , R lt of the Ball Process m __________ -: "Statlstlcall _ ~978 s GGD7"78-106--------------ithe-united States, by November , , . :10m port to the Congress? D N t Prosecute

General AccountmgG

ce,{eentitled "U.S. Attorneys ~7 r978 GGD-the Comptroller !lnera , f Fede~al Laws," February, , __ _ Many Suspected Vlolators 0 ______________________ :---State; by 77-86------------ ---------it-to the Congress of the Unltldtem t~ To

General AccountingGOffice,{e~~titled, "Federally suppor~e'ho~e " May 8, the Comptroller eneg' t Problems: More Needs to e ~_------­Solve State and Local our ----------------------U S Senate 1974 B-171919-------------H~~ Edward M. Kennedy, . 7 1979

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,- <, DepartmBent, of ~usitcect~~~~i:o Deputy ,Attol'Bneyh~:;~:~/u:O~promis~ .',>. ',.: from, eo]amlIf . ort for the Blden- ay ,______________ 149

_. '" . reg!trding then supp _________________________ d U.S. Senate amendment------:-------- to Hon. Edward M. Kenne 6ffi of Legis­

• Department ,o! J~lc""!iJte~ssistant Attorney G:-~~:l~ubCo:mittee by ., , from Patrl~la M' 17 '1979, answers to ques 1 T ial Act---------- 149

lative Affans, ay. ' on Amending the Speedy r, the Processing the Ju~~~a~ J~~ti~:~~ited States, re\i?ri~fA~'f~lY:74,,, March 1979, 156

D~arJrlminal Cases Under: thtehSi~rnistration of Justice-------------ffi f Improvements m e o ce or itt on the Constitution,

d in the files of the subcomm ee 1 These materials mar be foun

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Department of Justice, National Institute of Law Enforcement and Criminal.Justice, selected bibliography, "Speedy Trials," August 1978 __

Administrative Office of the U.S. Courts, ::eport on the implementation of title I and title II of the Speedy Trial Act of 1974, September 30, 1976_

Administrative Office of the U.S. Courts, second report on the implementa­tion of title I and title II of the Speedy Trial Act of 1974, September 30, 1977 __________________________________________________ - _______ _

Administrative Office of the U.S. Courts, appendix, statistical tables for U.S. District Courts on the implementation of title I of the Speedy Trial Act of 1974, September 301...JS77-----------------------------------­

Administrative Office of the u.S. Courts, third report on the implementa-tion of the Speedy Trial Act of 1974, title I, September 30, 1978 ______ _

Administrative Office of the U.S, Couits, third report on the implementa-, tion of title II of the Speedy Trial Act of 1974, September 30, 1978 ___ _ Administrative Office of the U.S. Courts, memorandum regarding, U.S.

District Courts requesting suspension of Speedy Trial Limits Permanent (60-day) per 28 U.S.C. section 3174, because of inability to comply, May 29, 1979 _____________________________________________ ... _____ _

Administrative Office of the U.S. Courts, memorandum to: District Court clerks, from: N. A. Halloran, subject: Speedy Trial Advisory No.1, October 23,1975; No. 2~ November 14, 1975; No.3, November 21,1975; No.4, December 5,1975; No.5, December 5,1975; No.6, December 19, 1975; No.7, December 31, 1975; No.8, January 13, 1976; No.9, Janu­ary'l6, 1976; No. 10, February 11, 1976; No. 11 February 18, 1976; No. 12, March 30, 1976; No. 13, March 31, 197~~ No. 14, June 24, 1976; No. 15, July 19, 1976; No. 16, JUly 20, 1976; 1'10. 17, August 3, 1976; No. l8, December 8, 1976; No. 19, January 31, 1977; No. 20, July 11, 1977; No. 21, September 20, 1977; No. 22, January 10, 1978; No. 23, March 9,i978; No. 24, May 5, 1978; No. 25, November 9, 1978; No. _26, ;March 27, 197~; No. 27, April 19, 1979 ____________________________ _

V.S. Attorneys' lVlanual, title 9-Criminal Division, April 14, 1978, ch. 17, ~p. 1-13 _______________________________________________________ _

U.S. CIRCUIT COURTS

157

158

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U.S. courts, Judicial Council of the Second Circuit, Judicial Council Speedy Trial Act Coordinating Committee, Second Circuit Speedy Trial Act guideli,nes, January 16, 1979 ____________________________________ .__ 386

U.S. 'DISTRICT COURTS

Conference of Metropolitan District Chief Judges statement on Speedy Trial Act of 1974, May 1979______________________________________ 438

U.S. District Court, northern district of Illinois, letter of Judge Prentice H. Marshall, May 10, 1979__________________________________________ 440

U.S. District Court, western district of Tennessee, letter of Judge Harry W. Wellford, May 25, 1979 and April 21, 1978 _______________________ 444,445

NATIONAL ORGANIZATIONS

American Bar ASSOCiation, to: Members, Section of Criminal Justice Ad Hoc Committee On Speedy Trial, others who have expressed interest, from: Harlan I. Ettinger, staff liaison, subject: ABA Board of Governors Establishment of Association Policy on Amendments to the Speedy trial Act of 1974, June 6,1979____________________________________ 482

Americsn Bar Association, memorandum, subject: Report with recom­mend~tions to the ABA Board of Governors on amendments to the Speedy Trial Act of 1974, May 17, 1979 ________________ .:.-------.:--- 486

American Bar Association, letter and memorandum, subject: Amendments to the Speedy Trial Act of 1974, May 1, 1979 and Apri127, 1979_-:, __ 496,497

American Bar Association, proposed minutes, Section of Criminal Justice Ad Hoc Committee on Speedy Trial, April 11, 1979 ______________ ..:___ 506

Amerlcan Bar Association Standards relating to the Administration of Criminal Justice, second edition tentative draft, Speedy Trial, summer 1978 __ ~-----------------------------------------------_________ 510

1 These materials may be found in the files of the Subcommittee on the Constitution,

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STATE ORGANIZATIONS

The Association of the Bar of the Oity of New York report evaluating the implementation of the Speedy Trial Act in the southern district of New Page York, June 13, 1978 and letters June 26, 1978 and July 5, 1978________ (1)

CITIZENS STATEMENTS

N oal Solomon, statement on hearings on the Speedy Trial Act, April 24, 1979 __________________________________________________________ _

Noal Solomon, Taking the FlOG! Speedy Trial: Right or Myth?, State Legislatures, published by the National Oonference of State Legislatures, May/June 1978 _________________________________________________ _

Noal S. Solomon, The Rights to a Speedy Trial: A Manual for lawyers, judges and legislators, 1978 ______________________________________ _

Noal S. Solomon, Speedy Trial Act, First Line of Defense, American Trial Lawyers Association, June 1978 __________________________________ _

PART 2.-NEWSPAPER AND NEWSLETTER ARTICLES

Washington Letter, ABA, "Oongress Moves To Amend Speedy Trial Act", vol. 15/ No.6, June I, 1979 ________________________________ _

Boston Globe, 'Speedy Trial Act, Too Speedy for Some," May 18, 1979 __ New York Times, "Oourts Still Vexed by Delays in Trials," May 7, 1979 __ Washington Star, "Justice Department Rebuffed on 'Speedy Trial' Tack," May 3, 1979 ____________________________________________ --------Washington Star, "Justice Department Seeks More 'Speedy Trial' Time," April 18, 1979 ____ .,. _____________________________________________ _ Los Angeles Times, "Oommittee Helps Set Justice Department Policy," March 4, 1979 ____________________________________________ -_____ _ Washington Star, "Delay Sought in Law Ensuring Speedy Trial," February 25, 1979 ____________ ... __________________________________________ _ Lawscope, ABA Journal, "Speedy Trial Act Gathers Steam," January 1979, volume 65 ________________________________________________ _ The National Law Journal, "Speedy Trial Act Over the Limit?," 'Vol. 1-No. 12, December 4,1978:.-- ____________________________________ _ In search of the speedy trial, National Oenter attempts to reform America's State courts____ _ _____________________ -- _______________________ _ The McMinnville (Oreg.) News··Register, "Victims Ask: 'Why Should I

Oome Forward?' " Sep,tember 6, 1978 ____________________________ _ Great Falls Tribune, 'Playboy Helps Red Lodge '2' In Speedy Trial Defense," May 24/ 1978 _________________________________________ _ Los Angeles Times, , Speedy Trial Act Oauses Problems Slowdown Urges," April 16, 1978 _________________________________________ : __________ _ Juris Doctor, "Justice, Inc., A Proposal for a Profitmaking Court," March 1978 ___________________ . _________________________________ _ Lawscope, ABA Journal, "Speedy Trials Are Slowing the Courts," Feb-

N ~~aVo:~7~ir:~!~WG~;rgia": Ca":se-Fo-crts~s -o~-P;obl~~-o{ Givi~g -Defe~d: ant a Quick Trial," November 18, 1977 ____________________________ _

New York Times, "The InJustices of Plea-Bargaining," December 13, 1976 ______ ~ ___________________________________________________ _

PART 3.-REPORTS AND STUDIES

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"A Study of the Number of Persons with Records of Arrest or Conviction in the Labor Force," U.S. Department of Labor, technical analysis _ paper No. 63, January 1979 ________ ._______________________________ (1)

"The Speedy Trial Act Planning Process," by Kenneth Mann, Research Association, Yale Law School, August 1978, prepared for: National Research Council, Assembly of Behavioral and Social Sciences, Com­mittee on Research on Law Enforcement and Criminal Justice________ 595

1 These materials may be found in the files of the SubcoJIlmittee pn the Constitution.

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PART 4.-COURT CASES AND LAW REVIEW A Fordham Law ReView . t " RTICLES

Study," 2 __ ---- _____ ~_~~~J_e_c_, The Speedy Trial Act: An Em irieal Cumberland Law Revie "Th -------------------- P H volume 8, No.3, wint:; 1978e Speedy Trial Act of 1974:-A-Suggesti~~-;; arv~r~ Law ReView, "The S ""e-d----.------------------------ '

Th~¥;e~ Sta.tes v. Ho,!»ard," vJlu~r 9~rlj~!c1~8d Separation of P~Wel;: mverslty of ChIcago Law Revie' "Th ------------__ _

Myo!ul!le ~3, No.4, summer 1976 w, e Speedy Trial Act of 1974-" ISSISSIPPI Law Journal "Th S - d-----;--------------------- '

ThPeNPe;ctive," volume 47, N~. EeJu~eTr;N6Act of 1974 in Constituti~~~i e atIOnal Journal of Criminal'Defe " --- -----___________ _

ThA STl'aPdfor t?e Unwary Practitioner~~e~ ?he S~eedy Trial Act of 1974: epee y TrIal Act of 1974' "D th' ~ ume II, 1976 _____ _

Of. ~ela:v: Apply to the Int~rim Lim~t~e~iISn ~~61(3h1) ExRludabl~Pe'"riods PIO eSSOI of law, University of I . ec IOn 64? by C. Pulaski

sP~~~iT~~~·fcls~~il~~4~Fc~or Jhe s~~~e::~¥~:l;~t ~fI~~ trial planning By H. M. Ray, U.S. attorJ't . cabIlity of Excl?sions to Inte;i~ -ii"illits-" ~ey General's Advisory Cor!~ili~mber and VICe-chairman of the Atto~­

F ItdshSubcLommittee; on Legislation a;dob~,St·RAttlorn.eys and chairman of or am aw ReVIew, "The inter' .1'. u es ___________ _

I tn Inyitation to Flee?" volume 46 ~ovIsIObns of the Speedy T~~l-X~t-:-n.ernatIOnalSchoolofLaw La R '. ec~~.er1977-. ---- _________ . mg Incarcerated Defenda~ts ~ eYIew,. Plose~utorlal Delays in Bri~-= the Speedy Trial Act 11 18 USC Tl'lal:PlOblems m the Interim Period gf No. I, winter 1977_~ . . ., sectIOn 3161 (suPp. IV 1974), Volume 2

--------------PART 5.-SPEEDY TRIAL ACT LEGISL~~:~~-~~:-~---------·---

Chart on the Speedy Trial Act . MEN DMENTS.

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S ~ihe A~ministrative Office ~tlfsec~nt~ 19A75 through 1979, prepared

. , a bIll to amend the Seed . T " ur s, ugust 1975_ - - - - ____ 727 Department of Justice by Err :k ll~ Act o~ 1974, by request of the the

l S~nator's statem~nt on intreondllue t~' AprIl 10, 1979, together with

ana YSIS c IOn and a se t· b . H R ----.;---------------___ c IOn- y-sectIOn . .3630, a bIll to amend the S eed--T--:---------------------------- 728 Department of Justice by Mr p R ~ l'lal ~ct of 1974, by request of the Co1gressman's state~ent o~ i~g~~d' ~prlllO, 1979, together with the

S ,~~~ysis--.------------------ uc IOn and a section-by-section . 8} ~ bIll to amend the S eici--i-.--------------------------Acl~Imstrative Office of th~ U ~ Clal Act of ~~74, by request oith~ Umted ,States, together with the' S 0u:-ts, JUdICIal Conference of the and a section-by-section analysis adena or s. statement on introduction ments recommended by the D nt cOI~parIson 9f Speedy Trial Amend­recommended by the Judicial Cepar menll of JUstIce (S. 961) with those

S. 9(31, Report No. 96-212 June t3nf~~7~ce of the United States (S. 1028) amendment in the natUl~e of a subs' ,reported by Mr. Biden with o~ reported favorably as amended b tltute ~o S, 961. and ordered the bill 1 ' , y unammous Ymce vote_ __ __ __ __ __ (1) II These materials may be fOl'nd hi t

hea~~~~ative printing' for VOl." 47, 19~~, fi~e:t °iv~~iagl~bi~mtr::itteebolin the ConstitUtion. e pu C at the time of this

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THE RIGHT TO A SPEEDY TRIAL: A Manual For Lawyers, Judges And Legislators

By Noal S. Solomon

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C~IMINAL JUS1ICE

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PREFACE

The purpose of this manual is to help inform attorneys about the necessity to protect their clients' rights to a speedy trial. Since many readers will also be judges, it is hoped that they too can gain a better understanding of this important constitutional right and incorporate it into their courtrooms. A final purpose is that the legislators who read this will afterwards encourage their state legislatures to study the speedy trial problem in ~heir states. Remedial legislation may be necessar.Y since very few states meet the standards of the federal speedy trial law.

Special thanks to the Playboy Foundation for printinp this manual. Playboy has SUpported similar civil liberties issues and without their generosity and concern for the speedy trial right this project would not have been Possible.

In addition, thanks to the Honorable Sam J. Ervin, Jr., a fOI'mer United States Senator and justice of the North Carolina Supreme Court. Senator Ervin's efforts as Chairman of the Senate Judiciary Committee were responsible for the passage of the Federal Speedy Trial Act of 1974. This legislation now helps protect the rights of thousands, and it is a model that should be followed by all states.

I hope you enjoy reading this manua1.

NOAL S. SOLOMON

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FORE~IORD

The cost of crime to o'ur country and its people in terms of economic losses and physical and psychological suffering in beyond calculation. Except for its obligation to defend our land against a foreign foe, the most solemn and sacred responsibility resting on government is to administer criminal justice.

In doing so, government must seek to prevent crime and punish in an appropriate way those who commit it. The objectives of punishing perpetrators of crime are to punish and reform them, deter others from like offending, and

thereby protect society. Justice prevails when every man gets his due. Our system of criminal justice

is based on the proposition that justice is due to society and the victims of crime 'as well as to the accused. As Daniel Hebster so well sa.id in prosecuting the access­ories to the murder of Captai n Joseph I~hite, "every unpuni shed murder takes away

somethi ng from the security of every man's 1 ife." The great and wise men who added the Bill of Rights to the Constitution ~new,

however, that tyranny perverts the forms of criminal law to crush good men who oppose its will. !4hi le they wi shed the sword of justi ce to be sharp, they were determined that it should not be useq to slay the innocent.

To this end, they decreed that every person charged with a crime has an absolute right to a fair trial. By this they meant that he is entitled to a trial in an open court before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. They necessarily imposed the responsibility for enforcing this right on the trial judge. They made the right to a fair trial effective by inserting the Fourth, Fifth, Sixth and Eighth Amendments in the Bill of Rights.

The right to a speedy trial is precious. It does not contemplate that the accused is to be tried with the speed of Jedwood justice, which Sir Walter Scott said hangs in haste and tries at leisure. But it does contemplate that trial shall be had with reasonable dispatch after the prosecution and the defense have had

adequate opportunity to prepare for it. The right to a speedy trial has this three-fold purpose. It protects the

accused, if he is detained in jail ~Ihile awaiting trial, against extended imprison­ment before trial; it relieves him of anxiety and public suspicion arising out of an untried accusation of crime; and it insures that he is to be tried while his

witnesses are available and their memories are undir.med. Speedy trials ~re indispensable to the sound administration of j~stice. They

make it as certain as it is humanly possible that the innocent will be speedily

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acquitted, and the guilty swiftly convicted and punished. For ages, society has complained that .justice travels on leaden feet. The

Sixth Amendment pledge that the accused ]n all criminal prosecutions shall enJoy the right to a speedy and public trial was designed to end this complaint and convert into a reality the Magna Carta's ancient promise: "To no one will we deny justice, to no one will we delay it."

For a combination of reasons, the Sixth Amendment pledge did not accomplish this purpose. Legislators were unwilling to provide sufficient judges, prosecuting attorneys, and supporting personnel to make the right to a speedy trial effective. Like other men, some judges, prosecuting attorneys, and defense lawyers are inclined to be indolent and dilatory.

The constitutional right to a speedy trial was interoreted by appellate courts to be a personal right which the accused had to invoke, and the accused was reluctant to invoke it because he had the heavy burden of showing the delay in bringing him to trial was the inexcusable fault of the prosecution. The accused I~as also reluctant to demand a speedy trial because he knew that adverse witnesses might become"forget­ful, or die, or disappear, and in consequence he would go unwhipped of justice.

As a result of the law's delays, court dockets became conjested, and jails became overcrowded with accused awaiting trial. At the time Congress enacted the Speedy Trial Act of 1974, available records indicated that there were more people in jails awaiting trial than there were in prisons serving sentences. Because of these things, plea-bargaining became the order of the day in courts past numbering, and judges were forced to accept pleas of guilty to lesser offenses merely to cope with intolerable case loads.

In lamenting the denigration of our criminal courts, Professor Lewis Katz, of Case Western Law School, said: "Felony trials are reduced to auctions where successive bids are made until one is finally accepted. The auction process i nvari ab ly compromi ses and often tota lly di s regards both t'.e defendant whose freedom is at stake and the community whose security is in jeopardy."

My experience as a trial lawyer and judge had engendered in my mind abiding convictions respecting the administration of criminal justice. Those relevant to the speedy trial problem are stated below.

If justice is to be done to the accused and the victims of crime and society are to be rpotected, criminal cases must be tried while witnesses are readily available and their recollections are fresh. Hence, trials must be speedy.

The Sixth Amendment speedy trial guarantee failed to achieve its purpose for the reasons indicated. To be effective, the guarantee must be reinforced by congressional action. Like most other provisions of the Bill of Rights, thp

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constitutional speedy trial guarantee is procedural. Procedural requirements are all important in law. They require the exercise of judicial power to conform to the rule of law rather than to succumb to the caprice of man.

With the exception of the limited number of criminal cases where the accused is not available for trial, judges, prosecuting attorneys. and defense lawyers possess the power to determine whether criminal justice will proceed with dispatch or move on leaden feet. In the ultimate ana-lysis, laws are feckless unless th~y are based on reality.

If Congress is to make the Sixth Amendment guarantee of a speedy trial effective at the federal level, it must enact and retain in force two congress­ional acts. The first must p'rovide sUfficient judges, prosecuting attorneys, defense lawyers, and supporting personnel to enable _federal courts to try' . criminal cases with dispatch; and the second must impose on judges, prosecutlng attorneys. and defense lawyers under appropriate sanctions the positive responsibility for trying within prescribed periods of time all criminal cases

in whi'ch the accused is available. These abiding convictions prompted me to introduce and fight for the

enactment of the legislative proposal which became the Speedy Trial Act of 1974. Some federal judges are antagonistic to the Act. Their attitude is'

understandable. After all, federal judges are human beings, and human beings are inclined to dislike laws which constrain~them to do their duty.

SAN J. ERVIN, JR. FOrmer United States Senator

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THE RIGHT TO A SPEEDY TRIAL Introducti on*

"The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution," according to Chief Justice Earl t~arren writing for the Supreme Court in Klopfer v. North Carolina, 386 U.S. 213 (1967). It was included in the Bill of Rights without debate.

"Although the Constitution provides that I In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,' this mandate has for the most part gone unenforced," so stated the chairman of the Subcorrrnittee on Crime of the Committee on the JUdiciary of the U.S. House of Representatives when on September 12, 1974, the subcommittee opened its first in a series of hearings on legislation which would "breathe life into the Sixth Amendment's promise to the criminally accused of a speedy trial." (Speedy Trial Act of 1974, U.S, House of Representatives Report No. 42,1974, p. 1).

The Federal Speedy Trial Act (18 U.S.C. 3161 et seq.), which was passed by Congress in 1974, applies directly only to federal criminal defendants. It says, in effect, that any defendant in a criminal proceeding in the federal courts who is not brought to trial within ninety days after arrest, the charges are to be dismissed.

It is my opinion that the Federal Speedy Trial Act establishes a standard that should be followed by the states. All of the states provide for a speedy trial in their constitutions, but what is considered "speedy" varies from stat~' to state. Therefore, since everyone is entitled to a speedy trial, it is unfortunate when a large number of defendants are brought to trial much longer than ninety days after arrest.

The United States Supreme Court has held that the Sixth Amendment right to a speedy trial is enforceable against the states since it is one of the most basic rights preserved by our constitution. An Assistant U.S. Attorney General said in 1974 prior to the passage of the current federa-' speedy trial law: "Since the right to speedy trial is applicable to the States by reason of the Fourteenth Amendment, Klopfer v. North Carolina, 386 U.S. 213 (1967), a congreSSional definition of this ri!lht is likely to affect proceedings in State courts as well." (Speedy Trial Act of 1974, U.S" House of Representatives Ref,lort No. 42, 1974, D. 197).

* It should be noted that since this ~anual is being distributed nationwide, most of the cases cited are federal cases. This is because, for the most part, most states follow the federa~ c~se~ m~ntioned and it would be repetitious to cite cases from all Jurlsdlctlons.

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Federal courts have sometimes taken the initiative to improve things which are primarily of state concern when the states have not done what is expected of them. In'this case, the issue of the right to a speedy trial is of nationwide, if not g'lobal, concern. For a long time, but especially in recent years, the st.ates have tried to rationalize poor conditions in jails and schools because of the lack of funds. However, this argument, which is discussed more fully later in this manual, has not been acceptable by the federal courts in some instances. But, surely the time has come for the states to take the initiative in solving their problems and stop sending their dirty linen to the federal courts for cleaning.

While it is important to keep a constitutional balance between the states and the federal government, it is necessary for the federal government and/or the federal courts to take appropriate action when the states neglect to do what is best for their citizens. An example is the federally mandated 55 miles per hour speed limit on roads. Another time when the federal government took action when the states failed to do so was ~ith gas rationing about six years ago. Sometimes only a push in the right direction is needed. Other times more guidance is necessary. The federal courts try not to take advantage of thei r powers and prefer the states to handle their own local matters. As the Second Circuit U.S. Court of Appeals said in Stone v. Philbrook, 528 F.2d 1084 (2d Cir. 1975). "the Vermont courts, with their day-to-day familiarity with the workings of the State'.s welfare system are in a better position than a federal judge to decide the de 1 i cate question of state 1 aw."

Of course, I believe that rules for speedy trials in the state courts should be drafted by each state. However, if the state laws do not meet certain criteria then it would be proper for the federal courts to take aVel" where the state left off. It is desirable to protect the interests of the people. After all, even though the residents of a particular state may be citizens of that state, they are also citizens of the United States.

It is wrong to have laws that have no meaning. While the statutes may be verbose unless the laws are enforced they are just empty words. In more instances than I woul d 1 i ke to thi nk of, we have 1 a\~s on the statute books whi ch are not enforced. And even if they are enforced, many laws are not enforced properly because of their vagueness. As long as there is a law it should be enforced -­and not selectively and intermittently. Everyone is entitled to equal protection of the laws. If a law is not enforced it should be repealed. It is possible th~t many of these "unenforced" laws are out of date. Conditions and circumstances change and this is to be expected. But a law that is ambiguous and uncertain is almost as if there is no law at all.

The speedy trial rules were designed to require the government to be ready

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to try cases promptly, subject to certain as " types of delay generally recognized

ar1s1ng from 1egitimate or unavoidable caus a growing number of aopeals have b b ,es. In the past several years of a speedy trial Th' 'ht teen ased, 1n full or part, alleging a denia1

. e r1 goa speedy t . 1 a United States of Amer' d ' ~la goes back long before there was

1ca, an the dlSCuss10n of this well f " recent years bi"ings to the bl", ' ounded r1ght 1n

, pu 1C s attent10n a closer cognition f h surrOund1ng congestion and delays in our courts. 0 t e problem

Feder~l Law Supersedes State Law In Confl icts

There is a well known conflicts of law orin' there is a conflict between f d ,c1ple that, generally, whenever

e eral and state la 't' h governs. This applies to th ' w 1 1S t e federal law that

e speedy tnal laws also Th "s of the United States Const't t' ( :' • e upremacy Clause"

1 u 10n Art1cle VI) provid th t " and the Laws of the Unit d St t, es a This Constitution

e a es Wh1Ch shall be made in shall be the supreme law of the lan . " pursuance thereof ..• bound thereby." d, and the Judges 1n every State shall be

" In Brown v. Western Railroad, 338 U.S. 2 ( The assertion of federal ri hts ' 94 1948), the Supreme Court said

defeated unc&r the name of 1 9 l' when pla1nly and reasonably ma.de, is not to be oca procedure" In Byrd Bl P.'

Cooperative, Inc. 356 U S 525 (19 . v. ue .1dae Electric . . 58)m the Supreme C t

constitutional doctrin' our suggested that some es are so 1mportant as to btl .

In Byrd the right to" e con ro 11ng Over state law. a Jury was 1n question.

The Supreme Court has held that alth . by state courts state 1 ough federal cla1ms may be adjudicated

, aws are never controlling th incidents of any federal . ht on e question of what the

r1g may be. The reaso . that federal rights could b d ft. n1ng expressed by the court was

e e ea ed 1f states wer 'tt say. Dice v. Akron, Canton & y • e perm1 ed to have the final

oungsto~m Ra1l road Co 342 U S 35 ( Where federally protected rights h. b ." " 9 1952).

able to adjust their remedi ave een 1nvaded, the federal courts are es so as to grant the ne l'

Court has held that violatio f f d cessary re 1ef. The Supreme federal government is such no. e e~allY protected rights by agents of the

a ser10US lstuation that h rely on the states to protect h' . ' a person s ould not have to

1S nghts. In this case th l' . Amendment rights were violated B'" e p a1ntlff's Fourth

• 1vens v. SlX Named Aaents of th F d of Narcotics, 403 U.S. 388 (1971). e e eral 8ureau

There would be no problem in det " would apply if the state 1 . erm1~lng that the federal speedy trial law

aw was 1n confl1ct if the' Unfortunately such is not th lSsue was that clear. the Sixth Ame~dment __ . e case. ~O\~eyer,the United States Constitution

prOV1 des for a speedy" tri al and h'l tl " w 1 e Ie constltutlon

548

is not precise in what is considered speedy, the fact that this is included in the United States Constitution makes it a federal question. A speedy trial is also provided for in state constitutions but even if it were not it would not matter. The United States Constitution is not as precise as might be desirable at times. But its vagueness vias deliberate because our founding fathers knew that conditions would change and the constitution was meant for all generations.

In determining whether a law is constitutional, it must be decided if the law is reasonable, clear, not discriminatory, and not arbitrary. Nebster's New Collegiate Dictionary defines "speedy" as being "marked by s\~iftness of motion or action." The word "fast" is given as a synonym and the word "dilatory" ("tendi ng or intended to cause delay") as an antonym. "Speedy" may be construed as being without unnecessary delay. Of course, as with all determinations for what is considered reasonable, a court has that responsibility, unless the legislature makes a provision. Naturally this would depend upon the circumstances.

By passing the Speedy Trial Act of 1974, Congress has, therefore, decided that any time within ninety days is speedy. Other states have similar laws which say that a trial must be held within, for example, 90 days or 120 days. If federal law calls for trials within ninety days, any longer period would seem to be contrary to a speedy trial. I think it is reasonable to expect all states to be able to have all criminal trials within ninety days also unless, of course, it was waived by the defendant. Of course, a difference of about thirty days would not be a great difference, but when the delay is much longer a question' arises. The speedy trial laws of many states are vague and do not set forth a time limit in days or months. Consequently it is not unusual fOi' trials to start considerably

, after ninety days. Sometimes it may be a few days later, sometimes a few weeks or a number of months or years, and justice delayed is often times justice denied.

In one case, for example, in flew York State, a man's trial for assault and criminally negligent homicide was not begun until 44 months after his arrest. His conviction was reversed because he was denied a speedy trial. In that case, it was obvious that his right to a speedy trial was violated. In The People of the State of New York v. George Hankins, ___ A.D.2d ___ (1976), the Appellate Division of the New York State Supreme Court said while no particular time of delay will require a dismissal, a delay of 44 months from arrest "is upon its face a patent frustration of the right to a speedy trial and in the absence of a showing of facts which establish the delay was compatible with the sound administration of justice, th~ right of a defendant must be vindicated by a reversal of the judgment and a dismissal of the indictment."

Criminal courts in this country have a dual problem. First, is the

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conviction of the guilty followed by such dis " sentence or otherwise Second 'h P~sltl0n of the case by \~ay of

• , lS t e protectl0n of th ' accusations and unfair convict' e lnnocent against unjust

10ns, and safeguarding even th '1 oppression and abuse. As the G . e gUl ty against 6 Ga. 491 (1842) that "Our P e

lor

cglda Supreme Court pointed out in Denny v. State,

, ena 0 e protects defenda t f oppressive delays whilst t th' n s rom vexations and guarded." ' ,a e same tlme, the ri ghts of the prosecuti on are

, Pr.ior'to 1940 there were very few United States reVl t Supreme Court decisions

eWlng s ate criminal cases. By comparison t of the Court's business The ap l' t' ,oday such cases are a large part

• p lca 10n of federal standards to state criminal procedure has been a perplexing issue.

Mr. Justice Black in Adamson v C l'f ' his "study of the histo' 1 . a 1 orma, 332 U.S. 46 (1947), wrote that

rlca events that culminated in the Fourteenth Am persuades me that one of the h' f b' endment. ',' first section, separately, an~ :: a 0 Jects that ~he provisions of the Amendments' the Bill of Rights applicable to th Wh~l:' \,I~re lntende~ to a~complish was to make ori . e s a es. The Justlce sald he believed "the

gl na 1 purpose of the Fourteenth Amendment" was "to ext d t 1 the nation the complete protection of the Bill of Rights en

TO ~ ;d

l hthte pe~Ple of

Court can determi h t . . 0 t a thlS d

. ne w a , lf any, provisions of the Bil'l of Rights will b . f an lf so to What degree l'S to f teen orced, , rus rate the great d' f Constitution." eSlgn 0 a written

Up until 1952 the.Bill of Rights of the United States t Constitution was cons rued as being binding 0 1 h

But in th t . . n y on t e federal government -- not on the states a year ln Rochln v. California 342 U S ( •

changed its Viewpoint and all d '.' . 165 1952), the Supreme Court The Court noted that the D ;we a broader lnterpretation of the ten amendments.

thi s Court to null ify any ~:at:o~:;s i ~l ~use of ~he :our~eenth Amendment "empowers offends' '. 1 ts appll catl on shocks the conscience'

a sense of J UStl ce' or run t ' conduct "' s coun er to the 'de cenci es of ci vil i zed

.' The Court emphasi zed that these criteri a' "do not refer to th ' consclences.or to their senses of justice and decencY .•. but by elr own sense f f 'the cOmmuni ty! s

o alr play and decency' and by the 'traditions people. III and conscience of our

the a~pne~~Ch!~, the eVidenc~ (drugs) was obtained as the result of "pumpinq" of an s stomach agalnst his will and h' .

morphine Th e was conVlcted of posseSSing

is a IIge~eral e r!~~~~:~~~u;~a:a~:a;:si lel'nrethve~Sing ROChi~' s convi cti on that there . el r prosecutlOns res t t

decencl es of ci vi 1 i zed conduct." Mr. pec cer ai n Justice Black, in his concurring opinion,

550

noted that he was afraid that err.atic judicial decisions might "imperil all

the individual liberty safeguards specifically enumerated in the Bill of Rights."

Powell v. Alabama, 287 U.S. 45 (1932), gave one test· for determining

whether ari ght extended by the Fi fth and Sixth Amendments wi th respect to

federal criminal proceedings is also protected against state action by the

Fourteenth Amendment. Powell held that the question is whether a right is among

those "fundamental principles of liberty and justice which lie at the base of ,all,

our civil and political institutions." In re Oliver, 333 U.S. 257 (1948), imposed another test, which is whether it is "basic to our system of jurisprudence."

Another test ~JaS given in Gideon v. Wainwright, 372 U.S. 335 (1963), which is

whether it isOla fundamental right essential to a fair tria1."

Duncan v. Louisiana, 391 U.S: 145 (1968), placed great emphasis on the

Fourteenth Amendment in its application to the states of the right to a jury

trial in criminal cases. The Court said "A right to a jury trial is granted to

criminal defendants in order to prevent oppression by the Government. Those who

wrote our constitutions knew from history and experience that it was necessary

to protect against unfounded criminal charges brought to eliminate enemies

and against judges too responsive to the voice of hi!!her authority." The right

to a jury trial was given to protect against arbitral'y action by a judge. While

the Court noted that a jury trial has its weaknesses and the potential for misuse,

the benefits of the right to a trial by j~ry far exceed possible weaknesses. The

Court noted also the "deep colltllitment of the Nation to the right of jury trial."

In the landmark case of Younger v. Harris, 401 U.S. 37 (1971), the Supreme

Court held that it would be permissible for the fedf~ral courts to intervene in

a state criminal proceeding where there is a showin!~ of "bad faith" or "harassment"

by state officials responsible for the prosecution, where the state law to be

applied in the criminal proceeding is "flagrantly and patently violative of express

constitutional prohibitions," and where there exist. other "extraordinary

circumstances in which the necessary irreparable irljury can be shown even in the

absence of the usual prerequisites of bad faith and harassment."

It would appear that equal protection of the laws would be sufficient to

allow the federal courts to make sure that state criminal standards are no less

than federal standards. The Supreme Court said in Robb v. Connolly, 111 U.S. 624 (1884), that state courts have the solemn responsib,ility equally with the federal

courts "to g1Jard, enforce, and protect every ri ghtgranted or secured by the

Constitution 'of the United States." Justice Marsha.ll observed when writing the

majority opinion in Benton v. Haryland, 395 U.S. 7S:4 (1969). that "Our recent cases

have throughly rejected the Palko v. Cqnnecticut, 302 U.S. 319 (1937), notion that

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basic constitutional rights can be de ' d ' of the Circumstances does not d' '1 me by the States as long as the totality 't ' lSC ose a denial of 'f d ' 1 1 S decided that a parti clJlar Bi 11 of Ri h un arr.antal fal rness'. Once American scheme of justice' th g ts guarantee is 'fundamental to the the State and Federal G ' e same constitutional standards apply a.gainst both

overnment. "

The Right To A Speedy Trial

A Is A Fundamental Right speedy trial is guaranteed the

Constitution. The Sup C ' accused by the Sixth Amendment of the reme ourt ln Klopfer N

established that the ri ht t v. orth Carolina, 386 U.S. 213 (1967) goa speedy trial' "f '

the States by the Due Process Cl lS undamental" and is imposed on , Kl ause of the Fourte th Am In oofer that this right "had 't, en endment. The Court noted 1 h . ' s roots at the v f '

aw erl tage," its fi rs tart' • , ery oundatlOn of our Engl ish . lC'Jlatlon appea' , each of the fifty states g rlng ln the Magna Carta (1215). Today

uarantees the rioht to' ' Klopfer also held that ' ~. a speedy tnal to its citizens

, even 1 f a defendant 1 . unJustified postponement of t ' 1 was re eased from custody, an "Th rla would not be toler" d

e pendency of the indictme t ' a"e. The Court said that f n may subJect him to p bl'

p employment, and almost cert '1 ' u lC scorn and deprive him " aln y wlll force curt '1

assoclntions and participat' , al ment of his speech, " ' lon 1 n popular causes B' "

oppre .• SlOn, as well as the' ' . Y lndeflnltely prolonging this th ' anxlety and concern acco '

e crlminal procedure condo d" mpanYlng public accusation' 1 ne ln thls case by th S '

c early denies the petitioner th 'h e upreme Court of North Carolina In Klopfer the question' e

l rlg t to a speedy trial." .

lnvo ved was whethe prosecution of an indictment without sta ' ~ ~ st~te may indefinitely postpone aCCUsed who has been di scharqed f ted Justl fl catlOn Over the objecti on of an C - rom custody Of co ~urt said they could not procrastinate. Th~ Co ur~e, the United States Supreme

rlght to a speedy trial if th' urt sald that a defendant has the t ere lS to be a trial Kl

respass for refusing to leave at' • opfer was indicted for criminal Ma h res aurant ln Februa 1964 '

rc , but after the jury failed t ry • Prosecution beoan in next t 0 reach a verdi ct h' .

erm. That delayed everything u t'l A ' lS case was continued to the In United St t ' n 1 ugust 1965.

a es v. Marlon, 404 U S 307 (1971) the Sixth Amendment's speedy tri 1 " " ' the Supreme Court held that d f a provlSlon has "n l' e endant in some way be 0 app lcation Until the putative

l' , comes an 'accused '" Th C lmltations protects agai t ' . e ourt noted that the statute of

ns pre-accusatlon del ' year delay from the date of the crime until' ~ys. In thlS case there was a three-Government intentionally del d "lndlctment. Of course, if the th aye the lndlctment to .

e defendant or to harass him th' . h galn some tactical advantage over a f . " ' lS mlg t have prejudi d h'

alr trlal, but this was not all d ce 1m enough to deny him ege. The Court noted that the Sixth Amendment

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"woul d appear to guarantee to u crimi~al defendant that the Government will nluve \~ith the dispatch that is appropriate to assure him an early and proper disposition of the charges against him."

An important goal of our courts is to mete out justice. In Barker v. Winao, 407 U.S. 514 (1972), the appellant may very well have been denied a speedy trial because the length of delay betwc~n arrest and completion of his trial was over five years. But because there was sUfficient evidence to show that the defendant brutally murdered an elderly couple his conviction was affirmed. 0n July 20, 1958, in Christian County, Kentucky, an elderly couple was beaten to death by intruders wielding an iron tire tool. Two'suspects, Silar Manning and Willie Barker, were arrested shortly thereafter. The grand jury indicted them on September 15, 1958, . .

and Barker's tri a 1 was set for October 21, 1958. The two defendants we"'I~ tried separ~telY. On October 23, 1958, the day Manning's trial began, the prosecution obtained the first of what was to be a series of 16 continuances of Barker's trial. The Christian County Court, 1 ike many other l"ural counties in several states, held three terms each year so a continuance meant a long delay.

In June, 1959, ten months after his arrest, Barker was released from jail on a 55,000 bond. Manning ~Ias tried before Barker, however it wasn't until December, 1962, after six t\"ials, that Manning was convicted of murdering both victims. Neither Barker nor his lawyer objected to the first 11 continuances. On February 12, 1962, the prosecution vias granted its twelfth continuance after Barker's counsel objected. Barker was later convicted and given a life sentence in October, 1963.

After his conviction was affirmed by the Kentucky Court of Appeals, Barker went to the federal courts. However, the United States Suprel'1e Court finally affirmed Barker's conviction in 1972 -- some fourteen years after his a~rest.

The nation's highest court observed in Barker that the "inability of courts to provide a prompt trial has contributed t.o a large ~acklog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system. In addition, persons released on bond for lengthy periods awaiting trial have an opportunity to commit other crimes." A National Bureau of Standards study in 1970 indicated that if a defendant ~/aS released prior to trial, the likelihood that he would commit a subsequent crime increases significantly if he is not brought to trial within sixty days of arrest. (Soeedy Trial Act of 1974, U.S. House of Reoresentatives Report No. 42, 1974, p. 3). It is also to society's benefit to see th~t defendants are given prompt trials. As the Courtcomiserated: "It must be of little comfort to the residents of Christian County, Kentucky, to know that Barker was at large on bail for over four years 'while accused of a vicious and

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brutal murder."

Also, psychologists have said for a long time that punishment should be administered as soon as possible after the deviant behavior in order to have maximum effect on rehabilitation. This applies to children as well as criminals.

Ironically as it may seem to the layperson, the deprivation of the rioht to a speedy trial may work to the accused's advantage. The Court noted that ;;Delay is not an uncommon defense tactic. As the time bet\~een the commission of the crime and the trial lengthens, witnesses may become unavailable or their memories fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof ..•• Deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself."

If Barker was charged with a non-violent crime, his chance of reversal would have 1 ike ly increased. The Court wrote: "The amorphous quality 0'1' the ri ght also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy i5 more serious than an exclusionary rule or a reversal for a new trial, but it (dismissal) is the only possible remedy."

In ~ the Court mentioned that it was the duty of the Conoress and the state legislatu~es to set a specified time period for speedy trial;. If the United States Supreme Court were to set a specified time period it would "require this Court to engage in legislative or rulemaking actiVity, rather than in the adj udi cati ve process to whi ch we shoul d confi ne our efforts. 14e do not estab 1 i sh procedural rules for the States, except ~Ihen mandated by the Constitution .••• The States, of course, are free to prescribe a reasonable period consistent with consti tuti ona 1 standards, but our approach much be less preci se. "

The Court considered the possibility that the defendant did not want a speedy trial since Barker did not object to the first eleven continuances and the demand­waiver doctrine, vlhich is recognized, at least to some extel1d in most jurisdictions, that provides that a defendant waives any considerati,m of his right to a speedy trial for any period prior to Which he has not demanded a trial. However, the Supreme Court said "such an approach, by presuming waiver of a fundamental riaht from inaction, is inconsistent with this Court's pronouncements on waiver of -constituti onal ri ghts." Barker cited Johnson v. 2erbst. 304 U. S. 458 (1938),

which defined waiver as "an intentional relinquishment or abandonment of a k~own right or privilege." But the Court pointed out in Barkgr: that "it is not necessari ly true that de·l ay benefits the defendant. There are cases in whi ch

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delay appreciably harms the defendant's ability to defend himself. Noreover, a defendant confined to jail prior to trial is obviously disadvantaged by delay as is a defendant released on bail but unable to lead a normal life because of community suspicion and his own anxiety."

"A defendant has no duty to bring himself t? trial," according ~o the Court, "the State has that duty as well as the duty of insuring that the trial is consistent ~Iith due process. Moreover, for the reasons earlier expressed society has a particular interest in bringing swift prosecutions, and, society's representatives are ,the one!> who should protect that interest."

It was observed by the Court that "a rigid view of the demand-waiver rule places defense counsel in an awkward position. Unless he demands a trial early and often, he is in danger of frustrating his client's right. If counsel is \~illing to tolerate some delay because he finds it reasonable and helpful in preparing his own case, he may be unable to obtain a s~eedy trial for his client at the end of that time. Since under the demand-waiver rule no time runs until the demand is made, the government will have whatever time is otherwise reasonable to bring the defendant to trial after a demand has been made. Thus, if the first demand is made three months after arrest in a jurisdiction which prescribes ~ six-month rule, the prosecution will have a total of nine months -- which may be wholly unreasonable under the circumstances ..•. Such a result is not consistent with the interests of defendants, society, or the Constitution." The Court rejected the rule that a defendant who fails to demand a speedy trial forever waives his right. However, the Court indicated that since the defendant may prefer delay, whether the defendant asserted or failed to assert his right to a speedy trial should be one of four factors to be considered in an inquiry into the de~rivation of the right. The ~ther three factors to be used, according to the Court, are: length of delay, the reason for the delay, and prejudice to the defendant.

While unless there is some delay the defendant cannot complain of being denied a speedy trial, the mere length of delay is not enough to dismiss an indictment. The length depends upon the circumstances of the case. The Court said "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." The reason for the delay is also important. According to the Court, "a deliberate attempt to delay the trial in order to hamper ~r.e defense should be weighed heavily against the government. A more neutral reason such as negl i gence or overcrowded courts shoul d be wei ghed 1 ess heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a val i d reason, such as a mi ssi ng wi tness, shoul d serve to justi fy appropri ate delay."

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The Court identified three possible prejudices to the defendant. They are: "(L) to prevent oppressive pretrial incarceration; (ii.) to minimize anxiety awl con~ern.of t~e accused; and (iii.) to limit the possibility that the defense Wi." be lmpalred. An example of prejudice to the defense in preparing his case giVen by ~he Court was "if witnesses die or disappear during a delay, the prejudice is ObV10US. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past." PrejUdice is USually the most difficult ;ac~o~ to prove:. However, the writer feels that the fact that a defendant has been ~ Jall a long tlme and has SUffered phYSical and mental anguish should, more often

t~a~ no~, be enough prejudice. In~, the Court noted that the "prejudice was mlnlmal although the delay was "extraordinary".

A Hhough ~ affi rmed the defendant's convi cti on, it is a 1 andmark case. Even Barker's la\~yer said "Your ~lOnor, I would concede that Willie Mae Barker probably -- I don't know for a fact -- did not want to be tried. I don't think any man wants to be tried. And I don't consider this a liability on his behalf. I don't blame him."

Even :omeone who is imprisoned for another crime in another jurisdiction must not be denled a speedy trial, according to the Supreme Court.in Smith v. Hooel, 393 U.S. 374 (1969). In 1960 Smith was indicted in Harris County, Texas, for theft. At the time of his indictment he was a prisoner in the federal penitentiary at :e~verwo~th, Kansas. On several times during the next six years, While still in Jall, Smlth requested in writing a speedy trial on the state charge. tlo action was taken. The Court said that the State of Texas was "required to make a dilioent 900d-fa~th effort" to bri ng the defendant to tri al promptly, even though it had -no ' legal rlght to demand the return of the defendant.

Although it might appear that a man already in prison cannot suffer any more, the Court indicated in Smith that this is not trae. If a speedy trial is not giVen to such a person, the possibility that the defendant alre'ady in prison might t'eceive a sen~ence.at least partially concurrent with the one he is serving may be forever lost.lf trlal 0: th~ pending case is postponed. Also, the.Court noted, "the duration of hlS :resent lmprlSOnment may be increased, and the conditions under ~Ihich he must serve 01: sente~ce greatly worsened, by the pendency of another criminal charge outstandwg agawst him." According to the Court, "there is reason to believe that an outstanding untried charge of \~hich even a convict may, of course, be innocent can have fully as depressive an effect upon a prisoner as upon a person who is at large. "

". The Supreme Court stated in Dickey v. Florida, 398 U.S. 30 (1970), that the rlght to a speedy trial is not a theoretical or abstract right but one rooted in

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hard reality in the need to have charges promotly exposed .•.• Stale claims have never been favored by the 1 a\~, and far 1 ess so in cri mi na 1 cases," As Justi ce Brennan observed in his concurrence in Dickel, "the guarantee protects our conrnon i ntere5!; that government prosecutes, not persecute, those whom it accuses of crime."

Appellant's conviction of selling drugs to an undercover policeman was l"eversed by the Supreme Court in Ross v. United States, 349 F.2d 210 (D.C. Cir. 1965), because the complaint against appellant was not sworn out until seven months after the al'Jeged offense, All that time the appellant was available for arrest. The policeman ad~itted that he would not have been able to testify \'/ithout refreshing his recollection by looking at his records. The appellant, who ~Ias a man of 1 i mi ted educati on, had no notebook, as the offi cer di d, and he coul d not recall the day in question. The Court concluded that the delay was not "necess itated by the requi rements of effecti ve 1 aw enforcement."

In Coleman v. United States, _F.2d_ (D.C. Cir. 1971), the defendant was convicted in the federal district court of robbery, and there was a delay of approximately 21 months between arrest and the hearing on defendant's motion to dismiss for lack of a speedy trial. The government failed to offer any justification for the delay. The Court of Appeals held that the delay of 21 months raised a serious ques~ion and, at least, placed on the government a heavy burden of demonstrati ng that the defendant's Si xth Amendment ri ght had not been abridged. The Court also noted that where a defendant did not act upon or with meaningful access to. advice of counsel in failing to demand to be tried, defendant did not waive his Sixth Amendment right to a speedy trial by failing to demand to be tried by an earlier date. The Court, in reversing the conviction, did not accept the government's contention that since the defendant was "so clearly guilty of this robbery that irrespective of the length or causes of the delay, he could have suffered n;; prejudicial deprivation of his constitutional right" to a speedy trial.

:·Iliere the bulk of the one year delay between arrest and trial was t.he direct result of continuances requested by defendant's counselor by co-defendant with defendant's consent, the right to a speedy trial was not denied. Hedqepeth v. :'!ni.~.s~ __ ~2..l;.e2., 364 F.2d 684 (D.C. Dir. 1966), which also noted that the passing Q~ ::cnsiderable time before trial, no matter who is at fault, should act as a 'S::lur to the government to seek prompt trial, and if the goverrment is lax in this regcl'"d a delay of one year has prima facie merit. The length or" the delay acts a~ .; tri ggeri ng f11echani Sill.

The cOI1';titution provides that the president "shall take care that the laws !.~ raithfully executed." Arti cle II, Sec. 3. As a part of thi s duty, the Executive Branch has the sole responsibility for determining what charges Should

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be brought against a defendant. Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967). This applies to the states also. People v. Henzey, 263 N.V.:.2d.678 (1965).

Hhether delay in completing a prosecution amounts to an unconstltutronal deprivation of rights depends on the circumstances, according to the Supreme Court in POllal"d v. United States, 352 U.S. 354 (1957). For the purposes of the Sixth Amendment, the sentence is part of the trial. The Court also said that the delay must be "purposeful or oppressi ve."

In United States v. Parrott et al., 248 F. Supp. 196 (1965), there ~Ias a del ay of at least 22 months between the date when the criminal reference report was .. referred to the United States P:ttorney and the date of ;;ndictment in this securltles violation case. The Court observed that the delay was the resl1lt of inaction amounting the negligence in the prosecutor's office. The Court held that where the delay is substantial, prejudice may be presumed and the government bears the burden of sho~ling that no prejudice has resulted. The hardship of the defendant should also be considered.

In United States v. Wahrer, 319 F.Supp. 585 (1970) ,the Court held that a 10 month delay from date of crime to arrest should have been explained by the government, and without an explanation the defendant was prejudiced., While so~e courts have held that an indictment can be returned at any time withln the perlod prescribed by the statute of limitations, when the passage of ti~e p:ejUdic~s the defendant's defense to the extent that it would hinder his constltutlonal rlghts such would add a different light to the question.

A unanimous Supreme Court reversed defendant's conviction in federal court for transpo'rting a stolen automobile across a state 1 ine in Strunk v. United States, 412 U.S. 434 (1973), because of a ten month delay between the return of the indictment and arraignment.

Braden v. 30th JUdicial Circuit Court of Kentucky, 410 U.S. 484 (1971), shows that a state prisoner who is frustrated by his trouble to get a speed~ trial in the state courts can apply to the federal courts for relief through a wrlt of habeas corpus after exhausting the state courts. The exhaustion doctrin~ of Ex Parte Royall, 117 U.S. 241 (1885), does not bar a petition for feder~l habeas corpus alleging a constitutional claim'of present denial of a speedy trlal, even though the petitioner has not yet been brought to trial in the state,court. The petitioner must, however, have exhausted available state court rem~d1es., :he jurisdiction of a federal district court considering a habeas corpus petlt10n , requires only that the court issuing the writ have jurisdiction over the cust~d1a~ of the prisoner. For example, a U.S. District Court judge for the Northe:n D1str1ct of Georgia can issue a writ only if the petitioner is physically present 1n that

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district. r!,aore v. Arizona, 414 U.S. 25 (1973), held that where petitioner was tried

for murder in Arizona almost three years after he was charged and 28 months after he first demanded that Arizona either' extradict him from California, where he was serving a prison term, or drop detainer against him, the Arizona Supreme Court in affi nni ng deni a 1 of petiti oner' s pretri a 1 habeas corpus appli cati on erred in ruling that showing 0f prejudice to defense at tria1 was essential to establish federa1 spe~dy trial claim. In addition to possible prejudice, the court must weigh reasons for delay in bring'ing the incarcerated defendant to trial.

"Contri ved procrasti nati on" by the government cou1 d cause prejudi ce to a defendant and deny him a speedy trial. United States v. Eucker, 532 F.2d 249 (2d Cir. 1976). It is "ironical," as the Court of Appeals noted "that a motion on speedy trial was granted by the district court almost eight months after the hearilig on the motion." Wallace et a1. v. Kern et al., 499 F.2d 1345 (2d Cir. 1974). In a New York case, People v. Rane1ucci, 50 A.D.2d. 105 (1975), the court said any delay in determining speedy trial motions "compounds the inherent delay which preceded the motion and in itself could be prejudicial to the defendant."

The U.S. Court of Appeals for the Fourth Circuit found that the defenctant l'las denied a speedy trial, but the U.S. Supreme Court in United States v. MacDonald,

U.S. (1978) , held that since the appeal was before trial, dismissal should not ~ur. -rhe Supreme Court said that if there are appeals before trial, this would usually be counter-productive to insuring prompt trials. Quite often, appeals on pre-trial decisions take up a long time, and should be discouraged, except in

2xtraordinary, urgent sit.uations. • Since defendant did not exhaust her state remedies, the Court of Appeals could

not help her although there was a possibility that she was denied a speedy trial. The Court said. "Perhaps, if Solomon were here to hold the sca'les, he would say the judgment has been too long deferred. As one of the spiritual qualities of justice is mercy, the New York State authorities may some day be persuaded by the ci rCllmstances of thi s case that they can. wi thout any loss of di gnity, on thei r own motion have the indic~ment dismissed and call it a day." United States ex. re1. Scranton v. New York, _F.2d_ (2d Cir. 1976).

On occassion the various appellate courts hesitate to dismiss a case; however, the Court of Appeals said in Hilbert v. Dooling, 476 F.2d 355 (2d. Cir. 1973), "We have shown in the past that where the overriding interest in prompt disposition of criminal cases is threatened, the Court will not hesitate to impose the sanction of dismissal with prejudice." In Hilbert there was a delay

of sixteen months between arrest and trial.

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\ A delay of eight months was not to be tolled when calculating because the ~ssistant U.S. Attorney made reasonable efforts and exercised duedjligence to have defendant produced for trial during the period where the defendant was "unavailable" and "in detention" in another jurisdiction. United States v. Oliver, 523 F.2d 253 (2d. Cir. 1975).

In United States v. Roberts, 515 F.2d 642 (2d Cir. 1975), the Court of APPfals affirmed the dismissal of the indictment because of delay. The Court did, not accept the government's argument that since Roberts agreed shortly after his indictment to plead guilty to reduced charges and he had no expectation of actually going to trial, the constitution's speedy trial guarantee afforded him no protection. The Court held that the 'speedy trial clause applies with full force at least until a guilty plea has been entered by the defendant and

• accepted by the court. In United States v. McDonough, 504 F.2d 67 (2d Cir. 1974), the Court of

Appeals pointed out "there is no de minimis time period under the six months' rule, the Government must be ready for trial within six months', not six months and three days, four days, fi ve days or ni ne days." It added that the peri od is "fixed, clearly, sharply and without qualification."

In July 1976, U. S. Di stri ct Court Judge Jack \4ei nstei n di smi ssed the charges against a draft evader because he was not tried within six months of his indictment. United States v. Salzmann, 417 F.Supp. 1139 (E.D.N.Y. 1976); affirmed at 548 F.2d 395 (2d Cir. 1976). His case was dormant for over two years. As Judge Weinstein said, "This is but one of tens of thousands of cases carried in the limbo of federal courts' fugitive files ..•• The prosecution does nothing to compe 1 thei r presence." The government is requi red to use "due dil i gence" to obtain the return of fugitive and incarcerated defendants. The Court noted that the government cannot complain of the defendant's continued unavailability when the government chooses not to employ means readily at its disposal to procure his presence. Salzmann noted that the failure to demand a speedY trial cannot be construed as a waiver unless knowingly and voluntarily made. lJhen a defendant is without counsel, it is unlikely that he was aware of his right to a speedy trial or of the consequences of his failure to demand a trial promptly. Although not stated'in this case, it would probably be desirable for judges to advise all defendants of their right to a speedy trial at time of arraignment. The states should provide for this in their speedy trial laws.

"A defendant may not raise the issue of speedy trial on appeal unless such issue was first raised at trial," according to the Georgia Court of Appeals in Hoore v. State, 141 Ga. App. 245 (1977). The right must be asserted.

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A Comparison Of Various Speedy Trial Laws* . .

. ] 1 . the best conslderlng . 0 inion that the federal speedy trla aw 15 '" It lS my p d h 't is written. While all fifty states provlde for both its provi s ions an ow 1 .. h 1 db" Hhen

. 1 y of the acts are not as specific as they s ou e. a speedy trla , man t 1'5 . t f'll in the gaps. When an ac

this happens it is up to the courts 0 1 b ad an interpretation, and I do not ambiguous, there is a tendancy to have too ro

believe that this is best. . 't over civil cases, there is While criminal cases generally have prl0rl y h t' 1 of J'ailed defendants

. .. a 1 cases A 1 so, t e rl a still a problem in disposlng crlmln 'b'l There is a common practice of usually occurs before defendants w~o are

h o~ d~l t~ents or informations \~ere filed

. the order in WhlCh t e ln lC docketing cases ln I t jurisdictions the control of and this is sometimes required by statute. n mos

l k f the court. Some

. . b t tute to the court or c er 0 the calendar lS glven y sal d to the prosecution but when

. control of the ca en ar jurisdictions, however, glve . h' n unfair advantage over the this,happens it may result in the prosecutlon aVlng a

defendants. th t' 1 imi tati ons as bei ng so many Most speedy trial statutes express e lme . 'th this approach is that there lS ( . G rgia) The problem Wl

terms of court 1.e. eo, t te Under GeorQia's speedy f 'f ity even in the same sa. _

often a lack 0 unl orm, .. l' e county after four months and ' ible to get a dlsmlssa ln on tria" law it 1S poss , le have to wait nine to twelve months only thirty or forty ml1es away, for ~xamp t'. f the Supre~e Court of Georgia

t' Even the Chlef Jus lce 0 , for the same protec lon. " onQ to wait for trial after demand. said that twelve months lS entlrely too 1 - d 11 citizens should be entitled There is only one constitution in the state, an a

to the same protection. . th t you cannot discriminate and that Equal protecti on basi cally requnes a I~hen there is a

erson you have to do for the other. what you do for one p . ' . h substantial, it is wrong. Revnolds dispurity of procedural rlghts, WhlC are

h pt of equal protection has

(1964) h ld that t e conce v. Sims, 377 U.S. 533 ,e . , niform treatment of persons standing been traditionally viewed as requlrlng ~he~. questioned or challenged. in the same relation to the govern~enta ac 10n

some examples of speedy trial * The article in the end of this manual gives laws also.

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It 'is rr.ore desirable for a statute to require trial within a certain number of days 'or months from a specified event such as arrest or arraignment (i.e. New York State, federal law). In 1967 the President's Commis~on on Law Enforcement and Administration of Justice proposed that the period from arrest to trial of felony cases be not more than four mor.ths. (The Challenge of Crime In A Free Societ,l. p. 155).

Pretri al procedures Such as indi ctrnent by the grand jury and arrai gnment are time consuming yet important. There should be more frequent sittings of the grand jury. and the time.from arrest to arraignemnt should be minimal. Most jurisdictions provide for delay upon a Showing of "good cause" by either party. However. it is up to the courts to see that continuances are given only for valid reasons. For example. stalling by an attorney because hls client has not paid him should be discouraged. Also stalling by the prosecution to let the defendant SUffer a little bit in jail should be discouraged. It is important for judges to giant conti~uances hesitantly if a speedy trial is to be insured. In computing the time for trial. necessary delays are generally excluded. On appeal. the question of how necessary a postponement was could affect the resultant deCiSion.

It is also not appropriate for a defendant to demand hts own trial because the defendant is not required to aid the prosecution. Forcing the defendant to demand trial. as is the law in many states. could enable the state to do nothing until the defendant acts. The expiration of the time limit could turn out to be a viable defense. It is also unfair to require a defendant to ask for his own trial, especially if he is without counsel. The American Bar Association says that trial should commence without demand by the defendant. (See The American Bar Association Standards Relat'ing To Speedy Trial. 1957. p. 16).

In some instances where the defendant was indicted prior to arrest the time runs from the date of indictment. Where indictment is not required the time generally runs from the time the com~laint or charge was filed even if the defendant was arrested afterwards. This is because even though not arrested. if the defendant is notified of the charge his pel'iod of anxiety over the pending prosecution has begun. In addit·ion. if the public is notified of tile charge the defendant is frcm that time foroward an object of public suspiCion. However. most of the time a defendant is arrested before he is indicted and therefore the time runs from his arrest.

If a defendant was charged with one crime and later was charged with. an additional crime. it is appropriate to begin· counting the speedy ·trial time from the fonner event provi ding the offense 1 ater charged is lithe same crime

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or a crime based on the same conduct or arising from the same criminal episode." (See The American Bar Association Standards Relating To Speedy Trial. 1967. p. 20).

If the defendant is involved in other legal proceedings the time is generally excluded. If an examination and hearing on the competency was requesteG this period would be excluded. If the defendant's lawyer requested a continuance this time would be excluded also. However. if the defendant was not represented by coun~el it is the duty of the court to advise the defendant of his right to a speedy trial and the right to object to a continuance. and the effect if he consents to the postponement. The period of delay resulting fro~ a conti nuance granted at the request of the prosecuti ng attorney woul d gene'loa 11y be excluded if the continuance was granted to allow the state additional time to obtain material evidence or to prepare the state's case if excpetional circumstances warranted such additional time.

The period of delay resulting from the absence of the defendant is excluded where due diligence has been ~ade to locate the defendant and he cannot be found. Congestion of the trial docket is a frequent excuse given but only when the congestion is attributable to exceptionable circumstances would it likely be accepted'as a valid reason for delay providing this case was not singled out.

Other periods of delay for good cause are general'ly excl~ded. Some states. su(;h as New York and Florida. detail the periods which may be excluded. but others. such as Georgia. neglect to do so. except in case made law.

If a prisoner is incarcerated in another state or in a federal institution this period would genera1ly be excluded because the state cannot go to trial without the consent of the incarcerating jurisdiction and the defendant cannot complain of a situation for which he is responsible. H~ever. a prisoner can often have a trial in another jurisdiction if he requests one although he would remain in custody. A detainer would be placed so that upon completion of one prison term he can be sent to another prison.

The only effective remedy for denial of a speedy trial is absolute and complete discharge. A later prosecution for the same offense is not permitted due to the principle of res judicata. The failure of the defendant or his counsel to move for discharge prior to trial or entry of a plea of guilty, usually constitutes waiver of the right to a speedy trial. The right to a speedy trial must be properly asserted.

Many states require trial to be sooner for defendants in custody than for those free' on bail. Failure to commence trial within the necessary statutory limits is viewed as absolutely barring trial. Most speedy trial legislation provides for unconditional release of a defendant in custody not brought to

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trial within the statutory limits. An exception is that Georgia's speedy trial statute. as some other states. applies only for non-capital crimes.

The Federal Speedy Trial Act of 1974. enacted January 3. 1975. Public Law No. 93-6~9. allows a court to dismiss an indictment with or \~ithout prejudice ~s the c1rcumstances indicate. In making the determination as to which sanction 1S appropriate. a court is 'required to consider "the seriousness .of the offenSe. ~he f~cts ~nd circumstances of the case which led to the dismissal; and the • lmpact of a reprosecution'on the administration of the Act and on the ~dministration of justice. h 18 U.S.C.A. 3162 (a) (1)(2). Dismissal with prejudice 1S :en:ral~y :or unexcused government delay. If a case is dismissed \~ith pre~ud~ce ~t ~s not retriable •. Conversely. if a case is dismissed without preJ~d1Ce 1t 1S retriable. The chairman of the House of Representatives COllllnttee on the Judiciary. Peter W. Rodino. Jr., said "if the Speedy Trial Act w~s re~l~y to accomplish its purpose. the dismissals of cases in meeting the t1me llm1ts should be 'with P~jUdice'. The dismissal 'without prejudice' I fear may be abused too readily." (Speedy Trial Act of 1974, U.S. House of Representatives Report No. 42, 1974. p •. 388).

The Act p~ovides that an iildictment must be filed within thirty days from ~rr:st or serV1ce ~f su~ons. The arraignment muct be within ten days following. 1nd1ctment. and tr1al must be within sixty days thereafter. To allow the courts to fully com~ly with this one hundred day time period, the Act does not become fully operati ve unti 1 fi ve years after it was enacted, whi eh wi 11 be ill Jtfly. 1979. Until then. however, each federal~district court has

a transitional speedy trial plan with slightly longer limits.

Conclus;'m

In Barker v. Hingo. supra •• the United States Supreme Court laid down a b~lancing test to determine whether a particular delay had violated the defendant's ~19ht ~o. a speedy trial. The Court listed four factors that should be considel'ed 1 n str1 k1 ng the balance: the 1 ength of the delay. the reason for the delay whether the defendant has demanded a speedy trial. and prejudice to the def;ndant The Court further indicated that these factors were interrelated and that not any· one :act~r was "either a necessary of SUfficient condition to the finding of a deprlVatlon of the right to a speedy triaL"

Once it is ~ete~ined that a right is a fundamental constitutional right. a state has no CholCe 1n deciding whether or not to allow citizens that right. There can be no legal or moral justification for a state's failure to do this.

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. dinary government functions" h 1 titude in approvlng or . While a state does ave a . b 'ld' s con'ititutional obligatlons

d d maintaimng Ul lng, , W tt such as pavin~ roa s an of funding or any other reason. See ya v. cannot be av01ded, even becau!ie ') P h v Locke 406 F. Supp.318

- 373 (M D. Ala. 1972; ug . ' __ ' Stickney, 3'14 F.Supp. . 349 F. Supp. 278 (r~.D. Ala. 1972); (M.D. Ala. 1976); Newman v. Alabama, (D Rh de tsland 1977); Holt v. Sarver,

h F Supp. • 0 C. Palmigiano v. Garra y, - • - 11' r 501 F.2d 1291 {5th lr. 30

9 F Supp. 385 (E.D. Ark. 1970); Gates v. cO{5~~ c"r 1975)' Jackson v. Bishop, • 2d 1305 1315 1 ., )

197")' Wyatt v. Aderholt, 503 F. • h' 459 F 2d 6 8 (1st Cir. 1972 ; , , C· 1968)' Rozecki v. Gaug un, . •

404 F 2d 571, 580 (8th lr. " (E DArk 1972) Although these . 28 F Supp 1182, 1194 •• • . , 1 th

and Hamilton v, Love, 3 . • , t isons and mental hosplta s, e . , d treatment 1n sta e pr cases involved cond1tlons an . 'this is a fundamental right also. See same would apply to speedy trlals, Slnce ,

Klopfer v. North Carolina, supra. , h clearly say that the lack of ' " th preceedl ng paragrap , .

The cases c1ted ln e constitutional vl01atlon. th 1 islature cannot excuse funds or inaction by e e

g, Rh d Island said in Pa1migrano that

' f the Distnct of 0 e 1 Chief Judge Pettlne 0 tect the weak and power ess

d 'gned expressly to pro " "the Bill of Rights was eSl f th majority and its leaders.

th eckless neglect, 0 e, (1974) from the passions, or e r , v Martinez 416 U.S. 396 , ' ted out in Procumer. . ' , 1

And the Supreme Court pOln , d fundamental constitutl0na 1 t' or practl ce offen sal

that when a state regu a 10n h' d ty to protect constitutiona guarantee, federal courts will discharge t elr u

rights. , District 'of Alabama said in Pugh, 406 F. Supp. Chief Judge Johnson of the Mldd1e d 'tizens only those constitutional

' t t liberty to affor Cl , at 330, that "a state lS no a 'b d t" The rationale of the courts lS

f t b1y within 1tS u ge • , t' nal rights which fit com or a , , t funds to protect constltu 10 t allocate suff1clen t'f'ed clearly that governments mus f t ff or facilities canllot be jus 1,1 •

. The 1 ack 0 s a edy ri ghts. There is no excuse, 1 • d' theil' courts and reasonably s R! t h a high case oa ln . dges Accordingly, if a sta e as .- obligation to hire more JU ,

b ' then a state has an d trials are difficult to 0 taln A1 quite often new\aws are passe

b 'ld ore courtrooms. so, and prosecutor!i and Ul m , fficient funds are given to

t and no funds or lnsu . h ld which affect the cour s s This is wrong, and our courts s ou

l' h the purpose of the new 1 aw • accomp lS _ ht before them. . , ,

their feelings in cases b,oug 'teed by our constltut'IOtl;. express, 'speedy tri all s guaran It is clear that the rlght to a dy The three branches of

that trials are spee • but everything must be done to see

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government share this responsibility. The legislative branch must pass good laws (and that includes keeping them current). and provide adequate funding. The executive branch must see that all prosecutions are prompt. And the judicial branch must interprete the laws and see that justice occurs.

l~hi1e most judges today are keenly aware of the speedy trial problem generally, many judges are hesitant to be innovative because of the fear of reversal and of the feeling that it is the legislative branch's responsibility to initiate improvements in the law. It is time to stop passing the buck. Of course, we can I~e 11 appreci ate the va 1 ue of separati on of powers, but much more is at stake. ~Jhen trials are delayed a long time it is a mockery of justice. Just imagine thousands of prisoners Sitting in their jail cells While waiting several months for trial to begin -- each of them is reading a copy of the U.S. Constitution. Speedy trials must be a reality -- not something that only looks good on paper.

Our judicial system is capable of doing much better so that faith is restored. The courts have grown a great deal since Chief Justice John Marshall established the principle of judicial review in the landmark case of Marbury v. Madison, 5 U.S. 137 (1803). It is imperative that we continue this growth and show the world that we are a nation t~at only only has a constitution with democratic principles but that the scared rights and freedoms contained therein are truly inalienable.

Uhen the appellate courts deci de not to reverse a convi cti on When there has been a denial of a speedy trial, the trial courts and prosecutors will do little to insure speedy trials in the future. There may be a tendancy to procrastinate, but reversing cases is one way to teach them a lesson. It is easy to forget

that even a guilty person is still entitled to have all his rights protected. Hhen there is a substantial delay in bringing a defendant to trial, his rights to due process and a speedy trial as guaranteed by the Fifth and Sixth Amendments may be Violated.

~o one element of the criminal justice system is entirely at fault for the delays, and often the blame is shared; included are prosecutors, judges, and

defense attorneys. Some of the reasons are overworked and understaffed prosecutors and judges, insufficient funding, outdated clerical procedures, higher crime rate, inefficient scheduling and lack of proper judicial Supervision. There are no easy anSI~ers since the problem is complex. However, some progress has been made in

recent years and with continued efforts we shall sUcceed in insurin9 speedy trials.

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National Criminal Justice Reference Service ~~---------------------------------.--------nCJrs

Copyrighted portion of this document was not microfilmed because the right to reproduce was denied.

"Speedy Trial Act. First Line of Defense"

By Neal D. Solomon

Publishe~ by the Association of Trial Lawyers of America

National Institute of Justice United States Department of Justice " - -. . .., (

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ABOUT THE AUTHOR

Noal S. Solomon became interested in the right to a speedy trial wh'ile working for his father, United States Magistrate Bender Solomon of Albany, New York, shortly after the Federal Speedy Trial Act of 1974 was passed. He has since authored many articles about the topic, and has served as an advisor to attorneys and legislative committees. He received his Juris Doctor degree from the John Marshall Law School, where he was editor-in-chief of the law review. He is currently with the law firm of Judge Arthur M. Kaplan in Atlanta.

Mr. Solomon has establish,ed a Speedy Trial Law Project to help attorneys involved in cases in which speedy trial is an issue. The project will assist lawyers on trial strategy and research, and will consider

, filing amicus curiae briefs in important cases. For information, contact Solomon at Suite 670, 1375 Peachtree Street, N.E., Atlanta, Georgia 30309.

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