The Not So Speedy Trial Act

• Publication year: 2021

THE NOT SO SPEEDY TRIAL ACT

Shon Hopwood(fn*)

Abstract: The Speedy Trial Act (STA) of 1974 occupies a peculiar place in the criminal justice system. Very few pieces of legislation can lay claim to protecting both the rights of criminal defendants and the public's significant interest in timely justice, while reducing the cost of judicial administration. The STA formerly accomplished these lofty aims by reducing pretrial delays. But for the past two decades legal scholars have ignored the STA, and both prosecutors and defense attorneys have subverted the STA's goals by routinely moving for continuances. And although the Act categorically applies in every federal criminal case, it has been effectively marginalized by federal district and circuit courts. The reason this happens is simple: no actor in the criminal justice system has an incentive to follow it. Prosecutors and defense attorneys alike rely on delays in the system; and overburdened district courts, which have opposed the STA since its inception, have failed to enforce it as written. Appellate courts, too, prefer to thwart the STA's requirements rather than reverse a conviction obtained by otherwise constitutional means. The institutional inertia that pulls courts away from the STA's commands has led to a predictable result: an increase in pretrial delays, the very ill that Congress intended to cure when it passed the Act. This Article highlights and examines the ways in which federal courts undermine the STA and details a number of open circuit court conflicts involving the Act. The Article then proposes a comprehensive, but non-Congressional, fix that prescribes how every actor in the criminal justice system can comply with the Act as Congress intended.

INTRODUCTION ................................................................................ 710

I. UNACCEPTABLE DELAY ........................................................ 712

A. The Interests Animating the Speedy Trial Act and the Judiciary's Initial Response ............................................... 712

B. The Speedy Trial Act ......................................................... 714

II. WAIVER OF SPEEDY TRIAL ACT RIGHTS ........................... 716

III. THE ENDS-OF-JUSTICE CONTINUANCE .............................. 719

A. The Need to Provide On-the-Record Reasons for Ends-of-Justice Continuances ...................................................... 719

B. Finding Reasons from Context Instead of Explicit Findings .............................................................................. 722

C. Open-Ended Continuances ................................................. 724

D. Non-Contemporaneous Ends-of-Justice Findings .............. 726

IV. JUDICIAL ESTOPPEL ................................................................ 729

V. INEFFECTIVE ASSISTANCE OF COUNSEL .......................... 733

A. Ineffective Assistance of Counsel: Deficient Performance ....................................................................... 733

B. Ineffective Assistance of Counsel: Prejudice ..................... 735

VI. SOLUTIONS: THE ACADEMY, ADVOCACY, AND THE COURTS ...................................................................................... 738

A. Why Is this Happening? ..................................................... 738

B. The Legal Academy, Defense, and Prosecution ................. 740

C. District Courts .................................................................... 742

D. Circuit Courts ..................................................................... 743

E. The U.S. Supreme Court .................................................... 744

CONCLUSION .................................................................................... 745

INTRODUCTION

It is an idea as old, if not older, than Magna Carta: "justice delayed is justice denied."(fn1) That principle is a vital component of any equitable system of criminal justice. It is vital for a reason: delays in justice are destructive to defendants' rights and to the public good.(fn2) For this reason, Congress passed the Speedy Trial Act of 1974(fn3) (STA or Act) to reduce delays between a criminal defendant's arraignment and trial. Congress believed the STA would protect the public's significant interest in timely justice, both as a matter of fairness and as a way to reduce the financial burden of judicial administration.(fn4)

Given the enormous public interest involved in speedy trials, one would think that federal trial and appellate courts would follow the strict structures of the Act;(fn5) those structures were designed precisely to prevent pretrial delays and the concomitant weakening and expense of the federal criminal justice system.(fn6) Although the STA has now been in place for over thirty years, federal courts continue, whether through inadvertence or intention, to skirt its statutory text and purpose. Lower federal courts also routinely flout the Supreme Court's repeated admonishments that courts must abide by the STA as it is written-without adding judicial gloss.(fn7) Twice the Supreme Court has admonished lower courts not to impose their own extra-textual limitations onto the Act. Yet, as will be shown in Parts III through V, lower federal courts have failed to heed the Court's commands. The frequency of these end-runs around the STA are problematic because they lead to unreasonable delays in criminal cases which, in turn, create a detriment to criminal defendants and to the public interest.

So what can be done? This Article argues that the legal academy, lawyers, and federal courts at all levels can ensure-through scholarship, advocacy, and statutory interpretation-that the Act's text and central purpose are faithfully followed, and consequently, that unacceptably long pretrial delays will be an anomaly and not the growing norm. Part I summarizes the interests animating the STA, how it operates, and the judiciary's initial response to it. The next four Parts cover specific STA issues. Part II highlights how district courts continue to disregard the Supreme Court's decision about when STA rights can be waived by criminal defendants. Part III details how lower courts continue to undermine the STA through erroneous interpretations and applications of the ends-of-justice provision. Parts IV and V discuss how federal courts mistakenly apply the doctrines of judicial estoppel and ineffective assistance of counsel to claims implicating the STA. And Part VI explains the reasons why courts undermine the STA and provides a comprehensive approach for resolving such problems so far as they affect every actor in the criminal justice system, from defense attorneys to the legal academy, to the courts.

Then Assistant Attorney General (and later Chief Justice of the United States Supreme Court) William H. Rehnquist, may have said it best-or at least most directly-when he considered the solution to pretrial delays in federal courts. He declared, "[I]t may well be . . . . that the whole system of federal criminal justice needs to be shaken by the scruff of its neck, and brought up short with a relatively peremptory instruction to prosecutors, defense counsel, and judges alike that criminal cases must be tried within a particular period of time."(fn8) That boldness indicated severity of the problem. The lingering question, however, was what, if anything, was to be done about the problem of justice delayed?

I. UNACCEPTABLE DELAY

A. The Interests Animating the Speedy Trial Act and the Judiciary's Initial Response

The right to a speedy trial has roots going back to the Magna Carta.(fn9) From those early roots it began to sprout in the colonial Bill of Rights where George Mason wrote that "a man has a right . . . to speedy trial."(fn10) The right was considered so essential that in the early period of our history, several states guaranteed a speedy trial in their bill of rights.(fn11) Not only does the right occupy a precious position in the Sixth Amendment today, but it also shares space in all fifty State Constitutions.(fn12) And the Supreme Court has labeled the right "fundamental" and "one of the most basic rights preserved by our Constitution."(fn13)

But while the speedy trial right's importance was undeniable, Congress had recognized by the mid-1970s that the right required some teeth in order to prevent the considerable pretrial delays that plagued federal courts.(fn14) Congress noted that "both the defense and the prosecution rely upon delay as a tactic in the trial of criminal cases,"(fn15) and that those delays had a "detrimental effect on the rights of defendants."(fn16) Congress, however, was not just concerned with the effect of pretrial delays on defendants' rights but also with how those delays impacted the public interest. Such delays are dangerous within the criminal justice system because a testifying witness' memory may fade with the passage of time.(fn17) Delays further weaken the system by creating large backlogs of cases, enabling criminal defendants to better negotiate for lenient plea bargains that lead to substantial sentencing disparities for defendants who commit similar crimes.(fn18) In cases where the defendant is granted bail, long pretrial delays create a tempting opportunity for the defendant to escape from the charging jurisdiction or commit new crimes.(fn19) If that were not enough, pretrial delays erode the...