Monday, April 15, 2013

What is a Speedy Trial?

The New York Times reported on the long delays the Bronx court system experiences on a daily basis. In just that borough, there are about 800 indicted felony cases that are over two years old. That means there are 800 defendants, many of whom are incarcerated, waiting for their trial.

The article exposes some of the flaws of the court system and lays plenty of blame at the feet of all the parties involved. My favorite part of the article was the timeline of a day in a typical trial, where only about two hours of actual work was done in an eight hour day.

That's abhorrent, you say? Doesn't the United States Constitution guarantee us a right to a speedy trial? Aren't there state laws too? Yes, yes, and yes, but speedy trial doesn't mean what you think it does.

The Sixth Amendment guarantees us all the right to a speedy and public trial, yet it sets no time limits as to what a speedy trial is. The Supreme Court, in Barker v. Wingo, laid out a four part test to determine if a period of time violates a defendant's constitutional right:

1) What was the length of the delay,
2) What was the reason for the delay,
3) Manner in which the defendant asserts his right, and
4) Degree of prejudice to the defendant that the delay has caused.

There are no inflexible rules laid out by the Supreme Court or the Constitution, leaving it to the states to establish time limits. In New York State, the People must be ready for trial within six months of the filing of the charges or the case is automatically dismissed. C.P.L. Section 30. 30.

Six months? Then, what are all those people doing waiting for trial for two years and some even up to five years? Shouldn't those cases be dismissed?

The wording makes all the difference. The statute states that a dismissal must be granted when the People are not ready for trial within six months. It does not say that the trial must commence within six months. All that is needed to stop the speedy trial clock from ticking is, 1) an indictment is filed, 2) the witnesses are available, and 3) the People declare either on the record or in a letter to the defendant that they are ready for trial. If an arrest occurs on January 1, the speedy trial date is July 1. If an indictment is filed on February 1 and the People declare they are ready for trial, then the clock stops on February 1 and only 31 days out of the 180 days (six months) are charged against the time.

Ready for trial doesn't mean the trial will occur that day, or even soon after. It just means that the People can proceed to trial. The defense has to file motions, hearings have to be held, and plea bargaining can occur. Every time the case is on the court's docket though, the People must be ready for trial or the clock starts ticking again.

But there are many reasons that adjournments will not count against the speedy trial clock:

1) Motion practice,
2) Defense attorney doesn't appear,
3) Defendant doesn't appear,
4) Emergencies like storms and power outages that close the court,
5) Defendant is rearrested on new charges, or
6) The court isn't available.

There are simply too few courtrooms for the number of cases in the Bronx. There are over 800 two-year old indicted cases, but not enough judges, courtrooms, court officers, stenographers, clerks, and other personnel. Plus, prosecutors have dozens of indictments to manage and defense attorneys have hundreds of cases to control. Every felony trial takes at least two weeks to complete, leaving all the personnel involved unavailable to move other cases. This doesn't even consider the number of new cases coming through the system daily.

The problem in the Bronx Court is a matter of scheduling. After a case is indicted, it gets assigned to a calendar judge, who handles the case from the arraignment on the indictment until the motions are completed. Due to the volume of cases, every adjournment is at least a month long, with older cases moved quicker. Once motions are completed the case is scheduled for trial.

The calendar judge does not do the trial. She is merely a cog moving the cases through the mostly routine matters. On the date the case is scheduled for trial, the prosecutor must say they are ready for trial, the witnesses must be available, the defense attorney must be ready for trial, and the defendant must be present. Then, the calendar judge calls the clerk who then decides if there are any trial judges available. If there are, the case is sent to that judge for trial. If not, the case is adjourned for a month or more, with no speedy trial time charged because the people were ready for trial.

On any given day, there are probably 50 cases scheduled for trial with only at most 30 judges available to try them. Since a prosecutor or defense attorney can never be certain which case will actually go to trial because there is no certainty as to availability, they have to triage cases and decide which ones are the most important to move and most likely to move. If a prosecutor has five cases scheduled to begin on a Monday, they obviously cannot prepare all five of them adequately. They must decide which one or two to prepare and then hope that the rest of the components are in place when Monday rolls around so the case can actually move to trial.

Lingering cases are a travesty for everyone. The victims are denied swift justice and many times do not care two years later. Memories fade over time affecting the outcome of cases.Innocent until proven guilty defendants languish in jail for years.

The delays definitely can work to the advantage of unscrupulous prosecutors and defense attorneys. Prosecutors who are afraid of trials or who do not want to put in the work can find any reason to tell the court they are not ready for trial and simply request an adjournment of a few days. Since the court's calendar is so enormous, they cannot schedule it on the date requested and must push it out for a few months. Then, only the days the prosecutor requests count against the speedy trial time and the rest is excludable due to the court's need to control its calendar.

Defense attorneys know that witnesses' memories fade over time, victims become disinterested, move, or die, and that plea deals then become more beneficial. The attorneys can then find any reason to request adjournments and let cases languish for years until they get a great resolution. Plus, judges do not like to pressure defense attorneys to trial when they say they are not ready because they are afraid the case will get reversed on appeal.

The Times article barely mentions the corrections department's role in the delays. They have to move thousands of prisoners a day through the five boroughs. That means transports are shuttling back and forth between Riker's Island and the courthouse all day long. Not all defendants are in the courthouse at 9:30 a.m. If the defendant doesn't arrive until 11 or even 12, there might not be any courtrooms available for trial because cases called earlier already claimed them.

Most prosecutors and defense attorneys I knew did their absolute best to have their cases ready for trial on every possible date. Even still, older cases still took precedence and newer trial cases would get pushed for months. The starts truly need to align in the current system to get a case to go to trial.

The answer is a bitter pill for taxpayers to swallow - more court staff, which means more money to pay them. This, combined with judicial pressure on the prosecutors and defense attorneys will help unclog the gridlock, although it is difficult to see this problem ever going away forever. I would love to see every felony trial occur within 6 months of the filing of the charges. I think that is fair and would give both sides ample time to prepare.


  1. Some of this crowding is due to the stupid War on Drugs.

    The War on Drugs has been more harmful than the drugs: in money. personal tragedy, destruction of civil liberties, militarization of policing, wrongful convictions, theft by forfeiture, and prosecutorial misconduct and abuse.

    1. Drug laws and sentencing have been rolled back in the last few years in New York. Most drug cases that do not involve huge drug weights result in rehab, probation, or short prison sentences now.

  2. I laughed, I cried, I pray for relief from idiots as mentioned in "Prosecutors Discretion". Basically, the prosecutor's proponent suggests the system need not better itself since there are no hard and fast rules. So what if a few folks wind up in the slammer for a year or two, they are probably guilty anyways.

    Well, I was recently caught up in a DAs hysteria for prosecuting someone for something.....I could not be more innocent of any charge and have demanded a speedy trial, over three god damned years ago!

    I have a better chance of winning the lottery, having sex with Lorde, or being breaking out than I do of having any trial in the next year.

    If you are innocent, this sucks......and now I understand the concept behind AK-Justice.

    1. I'm sorry to hear about the delay and hope for your day in court soon

    2. Does a Prosecutor have the same "Right to a Speedy Trial," as a Defendant? I know this question may seem a little absurd, but what about in a situation where the D's counsel may be going through a discharge/ substitution and the P doesn't want any delay of trial, etc. so is therefore pressuring that the trial occur immediately?

    3. We can demand a quick trial, but if the defendant will be harmed by it then our request doesn't matter at all

  3. How about the prosecution getting a cop to show up? Took them 4 months to get the cop there, meanwhile he racked up 89000 dollars in overtime , 2 1/2 years on a dwi, crazy!

  4. "Most prosecutors and defense attorneys I knew did their absolute best to have their cases ready for trial on every possible date." That is the biggest bunch of malarkey I've ever seen written down. If prosecutor's were sincerely interested in a speedy trial and the protections afforded by the speedy trial statute, they would not file a "certificate of readiness" when they know damn well they are not ready and haven't even provided discovery to the defense side. It is absolutely done to pervert justice and deny the defendant the rights afforded him by statute. If the courts are too damn busy to meet the speedy trial rules, then they need more courts or less arrests or to change the statute through legislation. Your statement is absolute B.S. and coming from a prosecutor (a liar by nature), I wouldn't expect anything more.

    1. Thank you for reading. I'd prefer trials occur the day after the crime happens. That way memories are fresh and witnesses are generally still cooperative.

  5. most of the prosecutors dont know how technology works . I refer to credit card , cyber crime etc... They are older folks who never made it to the industry. Lets face it right ? If u are that smart of a cookie you would be working for a large lawfirm not be "a" prosecutor. And yes , i agree , they have the advantage of making up stuff and try to persuate the jury. Its unfortunate. Part of my job is cyber expert witness and so far i have been able to assist on dropping or winning every case just because the other side did an aweful work....its good for me and my pocket..bad for the tax payers... but it is what it is.. Plus i never understood the irony of a " former prosecutor " becoming an attorney ??? Seriously ??? Thats the definition of being a mercenary not serving the community. Lets defend the felons now , as long as we make $$$... Its sad but its the grim truth... As a judge told me once " what makes a felon our country is a bad attorney, not a bad person"... Sad but true as well...

  6. can you please remind me again why we fought the cold war? i thought things like this only happened in the soviet gulag.

    people died to protect the sixth amendment, and now we can spend a trillion dollars on a war in iraq or a bank bailout but where is the money for courts? what is the point of the constitution if it cant be enforced.

  7. Thank you for sharing this information which should be widely publicized. This may be outside the scope of your blog, but why do you think there is so little public concern about incarceration of innocent people? Is there much chance the Supreme Court will lay out something more specific in the future?