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Second Circuit Rules 68-Month Delay Violates Speedy Trial Clause

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit held that a delay of 68 months between arrest and trial violates the right to a speedy trial enshrined in the Sixth Amendment when most of the delay is attributable to the Government.

On March 6, 2012, Rodshaun Black, Daniel Rodriguez, and Earnest Green (collectively, “Defendants”) were indicted on one count of Hobbs Act conspiracy. At arraignment the following day, the Government informed the trial court that the case might become a capital case. The court set a pretrial motions deadline of May 29. The Defendants, while asserting their right to a speedy trial, argued that the Government’s indecision about the death penalty forced them to seek a delay of the deadline for filing pretrial motions because the substance of those motions hinged on whether the death penalty would be a factor. The court vacated the deadline and gave the Government until May 11 to announce whether the case would be upgraded to a capital case. Because of one error after another, by August 2, 2012, the Government was still unable to inform the Defendants if the Justice Department authorized charging them with a capital offense. The Defendants told the court they would act on the assumption that no superseding indictment charging a capital offense was forthcoming, and they requested the case move forward. The court then set a pretrial motions deadline of September 28. At a hearing on the motions on December 4, the Defendants again expressed speedy trial concerns while the Government was still unable to confirm whether there would be capital charges.

At this time, extensive litigation also began over the Government’s failure to produce the photo arrays that were used to identify the Defendants. The court set several hearings at which the Government was to produce the evidence, but each time the Government received an extension. At two of the hearings, the Government failed to ensure Defendant Black was in attendance. Finally, on April 14, 2014 - more than two years after the indictment - the photo arrays were found in a retired police detective’s home.

Then on December 12, 2014, the Government filed a nine-count superseding indictment. Counts 1-3 were in relation to the kidnapping, extortion, and murder of Jabril Harper; Counts 4-9 were similar in relation to the death of Morris Singer. But the Government waited until January 13, 2015, before informing the Defendants that no death penalty would be sought. Because the additional charges required discovery and other pretrial litigation, the trial did not begin until November 7, 2017. On January 17, 2018, the jury acquitted the Defendants of counts 6-9, and on the following day, the jury hung on the remaining counts. The Defendants filed a motion on speedy trial grounds seeking dismissal of the remaining counts, which the trial court granted. The Government appealed.

The Second Circuit observed that the Sixth Amendment guarantees a right to a speedy trial that is fundamental. Klopfer v. North Carolina, 386 U.S. 213 (1967). The right protects three interests of defendants: (1) prevention of oppressive pretrial incarceration, (2) minimize anxiety of the accused, and (3) prevention of impairment to defense caused by excessive delays. Barker v. Wingo, 407 U.S. 514 (1972). When deciding a claimed denial of the right to a speedy trial, courts examine four factors: (1) length of delay, (2) reason for delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant. Id. Once a defendant establishes a presumptively prejudicial delay based on the time from accusation to trial, the burden then shifts to the prosecution to prove the delay was justified. United States v. New Buffalo Amusement Corp., 600 F.2d 368 (2d Cir. 1979). A delay over four years is unquestionably substantial. Id.

The Government conceded that the 68-month delay in this case was unquestionably substantial but argued the district court should have attributed more of the reasons for the delay to the Defendants. But the Court pointed out that the delay was primarily caused by the Government’s delayed decision concerning the death penalty; the protracted litigation when the Government lost photographic evidence; the Government’s superseding indictment that caused the re-litigation of pretrial motions; and the Government’s failure to produce Defendants at hearings.

The Court also observed that the Defendants repeatedly asserted their right to a speedy trial. As for prejudice to the Defendants, the Court said they “were forced for two years and ten months to worry over whether the government would seek not just their liberty, but their lives.” Thus, the four factors of Barker weighed in favor of the Defendants. The Court admonished that “we hold for the third time in two years that criminal defendants’ rights to a speedy trial have been violated in the Western District of New York.” 

Accordingly, the Court affirmed the district court’s dismissal of the remaining charges. See: United States v. Black, 918 F.3d 243 (2d Cir. 2019). 

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