SPEEDY TRIAL ACT OF 1974

WEDNESDAY, SEPTEMBER 18, 1974

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to notice, at 10:20 a.m., in room 2141, Rayburn House Office Building, Hon. John Conyers, Jr. [chairman of the subcommittee] presiding.

.. Present: Representatives Conyers, Sarbanes, and Cohen.

Also present: Maurice A. Barboza, counsel; Timothy J. Hart, assistant counsel; Constantine J. Gekas, associate counsel; Dorothy C. Wadley and Sarah Shafer, assistants to counsel.

Mr. CONYERS. The subcommittee will come to order.

I recognize the gentleman from Maine, Mr. Cohen.

Mr. COHEN. Mr. Chairman, I move that the subcommittee consent to coverage of this hearing in whole or in part by television broadcast, radio broadcast, or other such coverage as authorized by rule 6 of the rules of procedure.

Mr. CONYERS. Without objection, so ordered.

Our first witness is Attorney Charles Morgan, representing the American Civil Liberties Union. I will ask him to come forward. We will welcome him. He is a familiar figure before the Judiciary Committee; a distinguished lawyer, he is the director of the Washington office of the ACLU.

He is a trial lawyer known throughout the country, particularly in connection with appellate arguments, whose deep concern in terms of the administration of justice has been evidenced by the number of cases that he has handled dealing with the integration of southern State court juries, the desegregation of public agencies and employment agencies as well. He has dealt extensively with activities involving the right to vote and a number of other Federal questions.

We welcome you, Attorney Morgan. We think that this legislation being considered, which would, in effect, give fuller scope to the sixth amendment in connection with the right to a speedy trial, is a subject with which you have a very important concern.

We have your statement; it will be accepted into the record, and that will enable you to proceed in your own way and make any other additional remarks that you might want to.

Welcome.

[The prepared statement of Mr. Morgan follows:]

STATEMENT OF CHARLES MORGAN, JR., DIRECTOR, WASHINGTON OFFICE,

AMERICAN CIVIL LIBERTIES UNION

My name is Charles Morgan, Jr., and I am a lawyer and Director of the Washington Office of the American Civil Liberties Union. The ACLU, a national organization of 275,000 members, is dedicated to the protection of individual liberties and rights guaranteed by the Constitution. We strongly support the principle of a speedy trial in all federal criminal cases, as set out in S. 754. The constitutional guarantee of a speedy trial is a shield against prosecutorial buses, lengthy pre-trial detention, the loss of evidence, and the prolonged anxiety that accompanies public accusation until the charges have been finally resolved through the legal process.

The right to a speedy trial is so fundamental that without it other Sixth Amendment guarantees such as right to counsel and compulsory process are meaningless. Our trial system is based significantly upon the recollections of the accused and witnesses to the crime. The passage of time dims memory and so weakens this foundation that the trial process ceases to determine truth. The best defense counsel cannot effectively marshal non-existent evidence, or examine or cross-examine witnesses who no longer remember the facts.

The public has an interest in the swift disposition of criminal cases. Rehabilitation of the accused who is ultimately convicted is severely hampered by long delay. For both the convicted and those who are acquitted, or whose cases are eventually dismissed, the longer the time between accusation and trial, the harder their reentry into everyday life becomes. At best, they may live from day to day, unable to get jobs with a future or any job at all. Plans must be suspended, family and friends must suffer as well. Those who have lived on the borderline of poverty may well slip over and face the necessity of obtaining public assistance.

At worst, the accused may spend the time between accusation and trial in jail, unjustly forced to suffer punishment before any determination of guilt or innocence. Yet the average federal criminal case is not brought to trial until almost one year after the arrest of the accused.1

Long delay undermines the public's belief that the law can be effectively and promptly enforced. We have only to look to recent events to confirm this. On June 17, 1972 five men were arrested for breaking into the headquarters of the Democratic National Committee. That arrest triggered an agonizingly lengthy process that revealed massive illegal activity in the Nixon administration. The legitimate functions of the Executive branch of government came to a stand-still and the consuming activity was the cover-up. The nation was crippled by doubt and disbelief that the constitutional processes could ensure swift resolution of the facts. These fears were confirmed by the events.

On September 15, 1972, almost three months after the Watergate arrests, a federal grand jury in Washington returned indictments against the five burglars caught red-handed, and G. Gordon Liddy, and E. Howard Hunt, Jr. By the time the indictment was returned, trial before the November 1972 elections was a virtual impossibility. Thus, the initial cover-up worked. On January 30, 1973, the jury finally found James W. McCord, Jr. and G. Gordon Liddy guilty of conspiracy, burglary, and illegal wiretapping.

It was not until two years and two months after the break-in at the Democratic National Committee that the American people witnessed a partial resolution of the facts through the impeachment process, the vote of Articles of Impeachment by the House Judiciary Committee, and the resignation of former President Richard M. Nixon. The House of Representatives reflected the process of the federal courts by its painful delay in performing its constitutional duty to investigate and respond to the accusations against the former President and his

men.

Two years and two months of investigation and trial still have not produced all the facts. These prolonged delays have provoked widespread public cynicism about the workings of our judicial system.

The Watergate and related cases are an anomaly in American law. The nation's chief law enforcement officer-now pardoned-was the principal criminal suspect. He and his atttorneys apparently felt that his best defense was delay. Even in ordinary criminal cases, however, defense attorneys may use the same strategy, deferring trial because they believe delay will aid their clients.

1 Congressional Record $1993 (daily ed. Feb. 5, 1973).

But delays caused by the government through its prosecutors and its courts are constitutionally far different from delays sought by defendants seeking to locate vital witnesses or to prepare their cases effectively. The Sixth Amendment specifically recognizes the right of the accused to prompt resolution of his case, once he stands ready to defend himself.

President Gerald R. Ford last Monday night said that if Mr. Nixon were brought to trial on charges of obstructing justice and other charges that had been under consideration by the Watergate Special Prosecutor,

I was informed that this would take a year, maybe somewhat longer, for the whole process to go through. The New York Times, Sept. 17, 1974, p. 22. In pardoning the former President, Mr. Ford said,

The main concern that I had at the time I made the decision was to heal the wounds throughout the United States. For a period of 18 months or longer, we had had turmoil and divisiveness in the American society.

At the same time, the United States had major problems-both at home and abroad-that needed the maximum personal attention of the President and many others in the government.

It seemed to me that as long as this divisiveness continued, this turmoil existed, caused by the charges and countercharges the responsible people in the Government could not give their total attention to the problems that we had to solve at home and abroad. Id.

Mr. Ford spoke as if the problems raised by Mr. Nixon's case are unique. But they are not. For ordinary people as well as former Presidents, delay in the criminal process can rend the fabric of their lives. Divisiveness and turmoil are common to the families of criminal defendants who await trial month after month. Like the "responsible people” in the government, their attention is forcibly drawn away from such fundamental problems as earning a living and keeping their families together.

Lazy judges and dilatory prosecutors do not have the right to compromise away the guarantees of the Constitution. The right to a speedy trial-no less than the rights to a public trial, to bail, and to compulsory process to obtain witnesses for the defense was written into the Constitution to protect ordinary people against governmental abuse of the criminal process. The Constitution is meant for all of us. It has no special provisions applicable only to former Presidents. A system which provides mercy for the rich and powerful, but injustice for the poor and unknown, seriously undermines the democratic principles which bind our society together.

The assurance of a speedy trial, for all criminal defendants, by legislation specifying definite time limits between arrest and indictment and between indictment and trial, and applying sanctions for failure to follow the prescribed procedures, is one way of restoring public confidence in the justice system.

The burden of fulfilling the Sixth Amendment right to a speedy trial is on the government. The late Chief Justice Earl Warren, in delivering the opinion for the Supreme Court of the United States in Dickey v. Florida, 398 U.S. 31, 37-38 (1970), wrote: "Although a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial." In Smith v. Hoocy, 393 U.S. 374, 378 (1969), the Court reaffirmed its holding in United States v. Ewell, 383 U.S. 116 (1966), stating that:

This constitutional guarantee has universally been thought essential to protect at least three basic demands of criminal justice in the AngloAmerican legal system: [1] to prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibility that long delay will impair the ability of an accused to defend himself.

In Klopfer v. North Carolina, 386 U.S. 213, 223 (1967), the Supreme Court held that the right to a speedy trial is "as fundamental as any of the rights secured by the Sixth Amendment." The Court stated that the pendency of an indictment against the petitioner in that case ". . . may subject him to public scorn and deprive him of employment and almost certainly will force curtailment of his speech, association and participation in unpopular causes." Id. at 222.

S. 754 is an effort by the Congress to require the federal government to carry out its constitutional duty to provide speedy trials. Despite its laudable intent, the bill is fatally flawed in that 3162(a)(1) permits reprosecution after dismissal of charges. Section 3162(b), permitting reprosecution only in exceptional circumstances, does not remedy the defect. Though the Supreme Court has

found under the Fourteenth Amendment “. . . no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months," it has also declared that the states "are free to prescribe a reasonable period consistent with constitutional standards." Barker v. Wingo, 407 U.S. 514, 523 (1972).

Ample testimony before the Senate Subcommittee on Constitutional Rights supports the provisions of S. 754, placing a 30-day limit on the period between arrest and indictment and a 60-day limit on the period between indictment and trial. The time period is not only sufficient for preparation but essential to effect the Sixth Amendment right to a speedy trial. Mr. Justice Black, writing for the Court in Johnson v. Zerbst, 304 U.S. 458, 462 (1938), stated that "the Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not 'still be done.'" By permitting reprosecution of charges, S. 754 abridges not only the constitutional right to speedy trial but also its remedy.

In Strunk v. United States, 412 U.S. 434 (1973), decided after the introduction of this legislation, the Supreme Court held that the sole consitutional remedy for a denial of the right to a speedy trial was dismissal of the charges. The Court rejected a weaker remedy (reduction of the sentence by the number of days the trial was delayed) that had been fashioned by the Court of Appeals for the Seventh Circuit. Quoting Barker v. Wingo, 407 U.S. 514, 522 (1972), the opinion noted that dismissal of an indictment for denial of a speedy trial was an "unsatisfactorily severe remedy" and that in practice "it means that a defendant who may be guilty of a serious crime will go free, without having been tried." However, the Court set its face against any other alternative. It stated that "such severe remedies are not unique in the application of constitutional standards. In light of the policies which underlie the right to a speedy trial, dismissal must remain as Barker noted, 'the only possible remedy.'" Strunk v. United States, supra, at 439-440.

Further, by allowing reprosecution, S. 754 would curtail the defendant's liberty, drain his financial resources, perpetuate his anxiety about the future, inhibit meaningful rehabilitation and impair the fact-finding process at trial. See generally, Note, "Speedy Trial: A Constitutional Right in Search of Definition," 61 Georget. L. J. 657 (1973). The Sixth Amendment guarantee cannot be abrogated by a reprosecution provision. We urge that the provision be dropped.

The ACLU endorses the concept of limiting the time that may elapse from arrest to indictment and from indictment to trial. We reject the approach suggested by the United States Attorney for the District of Columbia, in his testimony before this committee on September 12, 1974. As a Justice Department spokesman, he stated that the "concept" of a speedy trial was a relative one that required weighing the rights of the defendant against the interest of public justice. It is our position that the interests of the public and the defendant in a speedy trial are one and the same. Prolonged delay breeds contempt for the law in both the minds of the public and the accused.

The present system of no fixed time periods is partly responsible for congestion in the courts. Court congestion in turn forces our criminal justice system to rely on plea bargaining for survival. In 1971, 85% of all federal criminal convictions resulted from plea rather than trial.'

While the Sixth Amendment guarantees the right to trial, the overcrowded court system makes the exercise of that right a potentially dangerous one. An innocent defendant who insists on trial may expect to suffer pre-trial detention if he is without the financial resources to post bond. If wrongly convicted, he can expect the justice system to impose the stiffest penalty possible not because the penalty fits the crime charged but because his trial further clogged the docket. As a consequence, many innocent people plead guilty to false charges rather than suffer the exercise of their constitutional right.'

By requiring that charges be brought against a defendant swiftly or not at all, and supplying the financial means necessary to make speedy trials possible, passage of S. 754 with the deletion of the reprosecution provision is an important first step in realizing Sixth Amendment guarantees.

However, we do oppose the seven-year period that must elapse before the bill is fully effective. No dismissal of charges is required by the bill for failure to

2 Hearings on S. 754 Before the Subcommittee on Constitutional Rights of the Com

mittee on the Judiciary. U.S. Senate, 93rd Cong., 1st Sess. April 17, 1973.

3 Annual Report of the Administrative Office of the U.S. Courts (1971).

See President's Commission on Law Enforcement and Administration of Justice: The Challenges of Crime in a Free Society (1967).

comply with the time limits until the fifth year after enactment. The government is still free to reprosecute the case during the fifth and sixth years after enactment. In the seventh year, and thereafter, dismissal for delay will be without prejudice and the government may reprosecute upon a showing of "exceptional circumstances" as defined by the bill. We restate our opposition to a reprosecution provision in any form, reminding this Subcommittee that the Supreme Court of the United States has held subsequent to the introduction of this legislation that the sole remedy for the denial of the right to speedy trial is dismissal. Strunk v. United States, supra. Additionally, the time limitations set out in the bill for years one through six will have little effect if dismissal is not the penalty for neglecting them.

We urge this Subcommittee to speed up the time limits imposed by the bill by making them effective upon enactment. Constitutional rights must not be subjugated to administrative convenience. Despite Department of Justice claims that acceleration of the provisions is impossible, this Subcommittee should remember that the mandate of the Sixth Amendment guarantee to a speedy trial is directed against the government, and it is upon the government, not the defendant, that the burden to provide one falls. The Supreme Court decision in Strunk is fair warning that justice delayed is still justice denied, and that governmental inaction may result in wholesale dismissal of criminal prosecutions.

5

Opponents of S. 754 have argued that the legislation is unnecessary to ensure speedy trials. Rule 50(b) of the Fderal Rules of Criminal Procedure promulgated by the U.S. Supreme Court in 1972, permits each federal district court to study the administration of the criminal justice system and devise a plan to facilitate prompt disposition of cases. It has been suggested the determination of time limits should be left to the courts. We strongly disagree with this position. The courts have repeatedly failed to take action against judges or counsel who are routinely absent or lazy. We would recommend amending S. 754 to make available to the press annually the average length of time between arrest and trial, for cases docketed in each federal district court. We agree with Senator Sam J. Ervin, Jr. of North Carolina who stated in his testimony before this Subcommittee that ". . . only Congress, not the courts, or for that matter the Justice Department, can make the Sixth Amendment work within the federal criminal justice system."

S. 754, if amended to prohibit reprosecution of dismissed charges and fully implemented in the federal criminal system, will give meaning to the Sixth Amendment right to a speedy trial. It will afford protection to both the rights of the public and the accused in criminal proceedings by ensuring a prompt resolution of the charges.

The deterrent function of prompt criminal proceedings fostered by S. 754 may lower the number of crimes committed each year. The harsh and oppressive effects of pre-trial detention occurring because of non-admission to or inability to make bail can be minimized by both the pre-trial services provision of the bill and shortening the average period between arrest and trial. Arguments for preventative detention take hold only when the defendant has been held for more than 60 days. A study by the National Bureau of Standards in 1970 found that most defendants commit crime on bail after they have been on pre-trial release more than 60 days. Without financial means of support and with a pending prosecution as a bar to any meaningful employment prospects, the criminally accused commit crimes so they may eat. A speedy trial would end this process and enhance the ability of the accused to defend himself by ensuring that evidence and recollections of witnesses will be fresh and in perspective. The Constitution guarantees the right to a speedy trial to all persons accused of crimes. This Subcommittee must act upon the constitutional mandate and effectuate that right.

TESTIMONY OF CHARLES MORGAN, JR., DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION

Mr. MORGAN. Thank you, Mr. Chairman.

Initially, I would like to refer only to the thrust of the statement that we have filed with the committee. The thrust of the remarks, I

5 Fed. Rules Cr. Proc., Rule 50 (b). 18 U.S.C.A.

Testimony of the Hon. Sam J. Ervin, Jr. before the House Subcommittee on Crime of the Committee on the Judiciary. 93rd Cong., 2d Session, September 12, 1974.

7 Testimony of Hon. Sam J. Ervin, Jr., supra.