The Speedy Trial Clause and Parallel State-Federal Prosecutions.

• Author: Kerfoot, Ryan

CONTENTS INTRODUCTION I. Background of the Speedy Trial Clause II. Interests in Speedy Parallel Prosecutions A. Federal-State Separation B. Prosecutorial Diligence C. Logistical Concerns III. Practical Effect of Each Circuit's Approach A. Bright-Line Rule B. Ad Hoc Approach IV. HYPOTHETICALS A. First Hypothetical--Clear Case for Delay B. Second Hypothetical--Clear Case for Parallel Prosecutions C. Third Hypothetical--Unclear Case D. Fourth Hypothetical--Another Unclear Case CONCLUSION INTRODUCTION

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." (1) The Supreme Court has lauded this right to a speedy trial as one of the most fundamental guaranteed by the Constitution. (2) To Christopher Ray Myers, however, this fundamental right probably seemed like a hollow farce. By the time the Ninth Circuit filed its opinion in the case of United States v. Myer (3) on July 22, 2019, Myers had been between state and federal custody for four years. (4) The State of Washington initially indicted Myers in May 2015 for assaulting a police officer when he fired a gun during a struggle with a sheriff's deputy, (5) but Myers' use of a firearm as a prior felon with fifteen felony convictions (6) caught the attention of the federal authorities, prompting a federal indictment for unlawful possession of a firearm. (7) The federal authorities decided to delay the federal criminal proceedings until after the state criminal proceedings concluded. (8)

Myers' state criminal prosecution ended in a plea agreement made in January 2017. (9) When Myers appeared before the federal district court for the beginning of the federal proceedings against him, he immediately moved to dismiss his federal case on Sixth Amendment speedy trial grounds. (10) Citing cases from the Fourth and Sixth Circuits, the district court denied the motion on the grounds that delaying to avoid a parallel prosecution with the State of Washington was a valid reason for the federal government to delay the federal proceedings against Myers. (11) The court rejected Myers' argument that the federal government's decision to delay the proceedings required a heightened standard laid out by the Tenth Circuit. (12) On appeal, the Ninth Circuit reversed, adopting the heightened standard that the district court had rejected, and remanded back to the district court. (13)

Cases like Myers raise an important dilemma about delaying proceedings in order to avoid burdensome concurrent state and federal prosecutions while still maintaining the accused's constitutional right to a speedy trial. Although the Supreme Court recognizes that the government's legitimate reason for delay may not violate the speedy trial right if the overall balance of factors tips in favor of the government, (14) the Court has yet to provide guidance on whether avoiding parallel prosecutions is always a legitimate reason under this test. Different United States Courts of Appeals have reached divergent conclusions on this issue. Some circuits, like the Sixth Circuit, have ruled that delaying federal proceedings to allow "another sovereign" to finish its prosecution is "without question" a valid reason for the federal government to delay proceedings. (15) Other circuits, including the Ninth Circuit in Myers, disagreed with this bright-line rule, preferring an ad hoc approach where the district court has to consider the nature and circumstances of the situation to determine whether the decision to delay weighs in favor of the federal government. (16)

This Note will argue that the ad hoc approach developed by the Tenth Circuit, and recently adopted by the Ninth, is the better method for determining whether a pending state proceeding is a valid reason for the federal government to delay a prosecution. Unlike the carte blanche given to the federal government by the bright-line rules in the Fourth and Sixth Circuits, the ad hoc approach allows the district court to consider the circumstances of each case, thus allowing for a fairer administration of criminal justice. This in turn makes the ad hoc approach more consistent with the purpose of the Speedy Trial Clause and with Supreme Court precedent. Part I of this Note will analyze the history and purpose of the Speedy Trial Clause, including the Supreme Court's precedent, to provide the context in which this circuit split exists. Part I will conclude that the Speedy Trial Clause is unique in criminal procedure in that it is necessarily context-based, because both the accused and society in general have unique and often opposing interests in seeing the accused fairly and efficiently prosecuted. Part II will discuss some of the interests underlying the Speedy Trial Clause that are particularly relevant to parallel prosecutions. The discussion in Part II will focus on three judicially recognized interests: maintaining the separation of federal and state courts, attorney due diligence, and logistical costs. These interests will frame the discussion of each circuit's approach in Part III. Finally, Part III will look at the two approaches to determine how they work in practice and how those approaches address the competing interests discussed in Part II. Part III will argue that the ad hoc approach, unlike the bright-line rule, permits the district court to consider the possible convenience of a parallel prosecution, avoiding situations where a parallel prosecution was perfectly reasonable but the federal government opted not to for unnecessary reasons. Part IV will then apply facts from four hypotheticals to the ad hoc approach to demonstrate how the district court can use the ad hoc approach to allow parallel prosecutions when the circumstances allow it.

1. BACKGROUND OF THE SPEEDY TRIAL CLAUSE

   With roots dating back to twelfth-century England, the speedy trial right is an integral part of the Anglo-American legal heritage. (17) Although often attributed to the Magna Carta, (18) the earliest known reference to a speedy trial right was the Assize of Clarendon promulgated by King Henry II in 1166. (19) The Assize was primarily a set of procedural rules that created a rudimentary right to an evidentiary hearing before a jury for those accused of committing certain crimes. (20) Paragraph four of the Assize mandated that sheriffs who caught a robber, murderer, or thief promptly notify the nearest judge and in turn required the judge to inform the sheriff where the judge would try the accused criminal. (21)

   A more explicit guarantee to a speedy trial right came fifty years after the Assize of Clarendon when King John signed the Magna Carta in 1215. (22) The Magna Carta states far more clearly than the Assize, "[t]o no one will we refuse or delay right or justice." (23) Edward Coke in his famous Institutes held this particular provision to be fundamental to the "law and custome of England." (24) The framers of the Constitution in turn took inspiration from Coke's treatise. (25) By the time the Constitutional Convention convened in Philadelphia in 1787, four of the future states had already adopted some form of a speedy trial right in their constitutions. (26) At the Constitutional Convention, James Madison proposed adding the speedy trial right to what would eventually become the Bill of Rights without controversy. (27)

   Despite the Framers' holding the speedy trial right in such high regard, there was very little legal development of the right in the courts during the first century under the Constitution. (28) Federal courts generally did not try to enforce the speedy trial right because of the perceived lack of standards that courts could use to assess whether a defendant's speedy trial right was violated. (29) In 1905, Beavers v. Haubert (30) was the first Supreme Court case that addressed the Speedy Trial Clause. (31) The Beavers Court considered whether the Speedy Trial Clause protected the defendant from a successive prosecution by a different state. (32) While finding that Beavers undoubtedly had a speedy trial right, the Court did not consider that right to be "unqualified and absolute" given the circumstances. (33) Justice McKenna, writing for the majority, described the speedy trial right as a right that must be "relative" based on the case's circumstances and one that could not ultimately be used to prevent the prosecution of "other offenses." (34) Specifically, the Court reasoned that Beavers could not be tried at the same time in both New York and the District of Columbia, so his speedy trial rights had to give way to the "practical administration of justice." (35)

   While Beavers was the first case to recognize that competing interests underlay the Speedy Trial Clause, Beavers only recognized a general societal interest in "public justice" without providing specific interests courts were bound to consider when deciding whether the accused's speedy trial right was violated. (36) Federal courts in the period between Beavers and Barker v. Wingo (37) identified a number of interests that they chose to consider when deciding whether a speedy trial violation occurred. (38) One commentator identifies four general interests that the federal courts recognized in the years leading up to Barker. (1) providing incentives for defense counsel and prosecutors to act diligently, (39) (2) discouraging purposeful or oppressive imprisonment, (40) (3) ensuring the orderly conduct of proceedings and not just mere speed of the judicial process, (41) and (4) preventing actual prejudice to the defendant. (42)

   Barker came in 1972 as a response to calls from the lower courts and legal scholars advocating a uniform speedy trial test. (43) The Supreme Court adopted a balancing test in which a court weighs the conduct of the prosecution and defense. (44) The Barker test itself set forth four factors that the lower courts were to use to determine whether the government or defendant had a stronger...