Considering the Strategy of Invoking Your Rights Under the Speedy Trial Act

I want to spend some time reflecting on criminal defendants’ rights under the
Speedy Trial Act. In the federal system, we’re (as lawyers and defendants) conditioned
to just sort of blow off these rights. After all, (argues the Government), don’t you want
some additional time to review the discovery (which we just provided to you weeks after
your client’s first appearance and which consists of 10 terabytes of information) and
engage in negotiations with us? And look, there may be (and are, in some cases)
perfectly good reasons to waive your rights under the Act. But, in my opinion, we need
to be thinking more strategically about this elemental part of the federal criminal justice
system.

The right to have your case resolved in a timely manner is not a new right. It can
be found in the Magna Carta (“[w]ee shall not… deny or delay Justice and right, neither
the end, which is Justice, nor the meane, whereby we may attaine to the end, and that
is the law.” (Chapter 40 of the Magna Carta, 1215). It made its way into the Virginia
Declaration of Rights of 1776 and from there, into our Sixth Amendment of the federal
Constitution. 7 F. Thorpe, The Federal and State Constitutions H. Doc. No. 357, 59th
Congress, 2d Sess. 9, 3813 (1909). All this has been codified in the Speedy Trial Act of
1974, 18 USC §§ 3161-3174. State courts obviously have their analogues. Here are
some of the significant triggering events in the federal system — The information (or
complaint) or indictment must be filed within 30 days from the date of arrest or service
of the summons. Then, trial must start within 70 days from the date the information (or
complaint) or indictment was filed, or from the date the defendant appears before an
officer of the court in which the charge is pending, whichever is later. There are certain
events that are automatically excluded from the time limits, like filing pretrial motions,
the court’s taking motions under advisement, delays because of a co-defendant
(although this doesn’t seem fair), and time during which a defendant may be taking an
interlocutory appeal.

But otherwise, defendants have this pretty extraordinary right. What is
interesting to me is how defendants continue to have this robust right, even in the face
of increasingly busy court calendars caused by our society’s desire to criminalize
everyone. Even though the population of our prison system has increased from around
300,000 back in the early 1980’s to over 2.3 MILLION in 2023, defendants can still insist
on their right to a speedy trial even though the government could not possibly grant
speedy trials to everyone who invokes the right (hence, the pressures to waive the right
and remain in pre-trial detention while the case is on-going).

Here’s just one example of how the issue plays out in the real world: United
States v. Larry Moss, 217 F.3rd 426 (6 th Cir. 2000). Larry Moss was arrested and
prosecuted in federal court for possession of cocaine with intent to distribute. He was
initially indicted on April 17, 1995. Moss had multiple continuances to retain counsel,
and eventually had three different attorneys. Challenging the case against him, Moss
filed a motion to suppress evidence, which the court never ruled on. He also filed a
motion to dismiss the indictment for violation of the Speedy Trial Act. The court then
dismissed the indictment without prejudice. Moss was, however, reindicted on the same
charge. Moss then filed motions to dismiss the second indictment for violation of the
Speedy Trial Act and the Sixth Amendment, and to suppress evidence. The court denied all three motions. Moss was found guilty and sentenced to 262 months’ imprisonment. Moss argued on appeal that the district court erred in various ways, including by dismissing his first indictment without prejudice for violation of the Speedy Trial Act. The court opinion in Moss held that a dismissal only becomes appealable after the defendant has been convicted and sentenced (this, however, doesn’t mean the court is unable to dismiss the indictment for a ST violation at the front end). Moss argued that the district court abused its discretion by not carefully considering all the factors set forth in the Speedy Trial Act.

The Speedy Trial Act enumerates three factors that trial courts must consider
when deciding whether to dismiss an action with or without prejudice: 1) the
seriousness of the offense; 2) the facts and circumstances that led to the dismissal; and
3) the impact of reprosecution on the administration of the Speedy Trial Act and on the
administration of justice. 18 U.S.C. § 3162(a). In United States v. Pierce, 17 F.3d
146 (6th Cir. 1994), the Sixth Circuit opined, “Because Congress has set forth specific
factors to be considered, a district court that does not set forth written findings with
regard to these factors has abused its discretion and will be reversed.” 17 F.3d at
148 (citing United States v. Taylor, 487 U.S. 326, 336 (1989)

The district court in this case set forth a written order, which provided that the
charges against Moss were “rightfully characterized as a serious offense”. The district
court implied that Moss alone caused the delay, instead of recognizing its own role in
not issuing a ruling on Moss’ motion to suppress. The district court failed to
acknowledge that the reason for ten months of the delay was that the motion to
suppress was under advisement. The district court also neglected to address any non-
trial prejudice suffered by Moss. The appellate court held the district court’s decision to
dismiss the original indictment without prejudice was clearly erroneous. Moss had his
conviction vacated and he was released.

So, strategically, should you waive your rights under the Speedy Trial Act? I
cannot stress enough that this is an individual decision that must be made in close
consultation with your lawyer. Every case is different, and I know there are reasons to
waive the right. But defendants should also consider whether repeatedly waiving the
right is in their best interests. Is it giving the government more time to get their case
together by interviewing additional witnesses and taking statements? Is the delay
putting more stress on you to take a plea because you’re detained? Imagine, for a
moment, what the criminal justice system would look like if everyone invoked their
Speedy Trial rights. Would prosecutions have to slow down? Would there be pressure
to not arrest as many people since doing so triggers rights under the Act that
defendants won’t waive? We live in a world where arrests and criminal prosecutions
seem to be the go-to answer for every societal ill. I haven’t seen any evidence of that
slowing down anytime soon. Maybe there are other, strategic, ways to address that
problem….