676 THE GEORGETOWN LAW JOURNAL [Vol. 61:657 appealing the order for a new trial.113 To meet these criticisms, S. 895 was amended to provide that the time period in cases of collateral attack or appeal commences on "the date the action occasioning the retrial becomes final." 114 Further, it permits the court retrying the case to extend the period for retrial up to 180 days from that date if preparation within the 60-day period proves too difficult.115 Sealed Indictments. In order to preserve the effectiveness of the sealed indictment in cases where secrecy is necessary, the Second Circuit Rules and S. 895 specifically provide that the filing of a sealed indictment does not trigger the speedy trial time limitations.116 Instead, when a sealed indictment is filed, the time limit commences upon the date of arrest. The problem of sealed indictments is not mentioned in the ABA Standards or New York legislation; therefore, the time period presumably commences when the indictment is filed. This omission may limit the usefulness of sealed indictments, since the prosecutor will have a shorter time within which to bring the defendant to trial if he chooses to delay arrest. Prisoners. Only two of the proposals contain provisions to handle the special speedy trial problems which arise when the suspect is serving time for another offense.117 Under the ABA Standards, a prosecutor who knows that his suspect is imprisoned has two choices.118 He either must seek to obtain the presence of the prisoner for trial or file a detainer against the prisoner. 119 If a detainer is filed, the official having custody is required to inform the prisoner of the charge and 113 Letter from Assistant Attorney General William H. Rehnquist to Senator Sam Ervin, Chairman, Subcomm. on Constitutional Rights, Oct. 19, 1971, in 1971 Hearings 253-54. 116 2D CIR. R. 4; S. 895, 92d Cong., 2d Sess. § 101 (1972); see FED. R. CRIM. P. 6. 117 2D CIR. R. 7; ABA STANDARDS § 3, Commentary at 32-40. 118 ABA STANDARDS § 3.1. No affirmative duty is placed on the prosecutor to search for defendants who may be imprisoned. 119 Id. § 3.1 (a). A detainer is a warrant filed against a person already in custody with the purpose of ensuring that he will be available to the authority which has placed the detainer at the expiration of his sentence. COUNCIL OF STATE GOVERNMENTS, SUGGESTED STATE LEGISLATION Program for 1959, at 167 (1958). Frequently, no effort is made to try an incarcerated defendant until he has finished serving his initial sentence, thereby severely curtailing the prisoner's ability to prepare his defense to the subsequent charge. See Smith v. Hooey, 393 U.S. 374, 379 (1969). In addition, prisoners against whom detainers have been filed may lose prison privileges and the opportunity for early parole. Id. at 378; Note, Convicts-The Right to a Speedy Trial and the New Detainer Statutes, 18 RUTGERS L. REV. 828, 834-36 (1964); Comment, The Detainer System and the Right to a Speedy Trial, 31 U. CHI. L. Rev. 535, 537-38 (1964). SPEEDY TRIAL 1973] 677 of his right to demand trial.120 If the prisoner chooses to demand trial, the prosecutor has a duty to attempt to obtain custody promptly.121 The speedy trial time period begins to run from the time a prisoner's presence for trial has been obtained.122 Any unreasonable delay in filing a detainer or obtaining custody of the defendant is counted toward a violation of the speedy trial time limitation.123 The Second Circuit Rules differ slightly from the ABA Standards. A detainer may be filed only "when the government is unable to obtain the presence of the defendant." 124 The prosecutor, therefore, does not have the option provided by the ABA Standards. If he knows the defendant is incarcerated, he must attempt to gain custody before filing a detainer. 125 The Second Circuit Rules do not specifically state when the time period commences for prisoners. Presumably, speedy trial time begins to run on the date the indictment is filed, whether or not the incarcerated defendant demands trial.126 The prosecutor is excused from the time limitations only if the defendant's presence for trial cannot be obtained by due diligence.127 EXCLUDABLE PERIODS It is universally agreed that certain periods of time should be excluded from consideration when determining whether the right to a 120 ABA STANDARDS $ 3.1 (b). 121 Id. § 3.1(c), Commentary at 36; accord, Interstate Agreement on Detainers Act, 18 U.S.C. App. §§ 1-8 (1970). The Second Circuit Rules adopt the better course of requiring the prosecutor to act absent demand. 2D CIR. R. 7. 122 ABA STANDARDS § 3.2. The Interstate Agreement on Detainers Act, which requires a prisoner to be tried within 180 days of his demand, commences the time period on receipt of demand. 18 U.S.C. App. § 2 (1970). The ABA proposal is more realistic because it does not charge the prosecutor with the time absorbed in extradition proceedings. 123 ABA STANDARDS § 3.2. The Supreme Court has held that upon the demand of an imprisoned defendant, the state has a constitutional duty to make a diligent, good faith effort to bring him before the court for trial. Smith v. Hooey, 393 U.S. 374 (1969). Although the ABA Standards were approved before Smith v. Hooey, part III is consistent with that decision. ABA STANDARDS § 3.1(a), Commentary at 33-35. 124 2D CIR. R. 7(b). 125 Id. When a detainer is filed, the prison official must be requested to notify the prisoner of "his rights under these rules." Id. However, it is not clear what rights such a prisoner has. Rule 5(f) provides that the period of delay resulting from detention of the defendant in another jurisdiction is excluded from computation of the time limits, if the prosecutor "has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial." Id. 5(f). However, a detainer may be filed only when custody of the prisoner cannot be secured. Id. 7(b). Reading rule 5(f) and rule 7 together, it appears that defendant imprisoned out-of-state whose presence cannot be obtained has no rights under the rules. 126 Id. 4, 8. 127 'd. 5(d), (f). 678 THE GEORGETOWN LAW JOURNAL [Vol. 61:657 speedy trial has been violated.128 Federal courts have dealt with excluded periods only generally. Under current constitutional standards, a defendant cannot complain of delay which he has caused; he is limited to attacking prosecutorial delay,12 129 such as postponements due to a legitimate search for evidence130 or the unavailability of a key witness. 181 Several state statutes defining the right to a speedy trial enumerate situations which will permit an extension of the time within which the defendant must be tried.132 These are generally supplemented with "good cause" provisions which allow ad hoc determination of delay which is excusable under the circumstances of the case. 133 The four proposals under consideration define specific periods which are excluded from computation of the time within which a defendant must be tried.134 Since the time allowed before a speedy trial violation occurs is measured precisely, exact definition of the excluded periods is essential both to facilitate administration of the rules and to maintain a uniform standard to be applied to all cases. The problem lies in defining these periods with sufficient specificity to limit their use as loopholes while at the same time preserving their flexibility. 128 See, e.g., Osborne v. United States, 371 F.2d 913, 925-26 (9th Cir.), cert. denied 387 U.S. 946 (1967) (continuance granted at request of defendant); Harlow v. United States, 301 F.2d 361, 366-67 (5th Cir.), cert. denied, 371 U.S. 814 (1962) (legitimate search for evidence by prosecution); United States v. Lustman, 258 F.2d 475, 477 (2d Cir.), cert. denied, 358 U.S. 880 (1958) (delay caused by appellant's own motions). 129 See notes 224-245 infra and accompanying text. See also United States v. Davis, 365 F.2d 251, 255-56 (6th Cir. 1966). Many courts excuse prosecutorial delay unless it was "purposeful or oppressive." See, e.g., United States v. Fitzpatrick, 437 F.2d 19, 26 (2d Cir. 1970); United States v. Peterson, 435 F.2d 192, 194 (7th Cir. 1970), cert. denied, 403 U.S. 907 (1971); Miller v. Rodriguez, 373 F.2d 26, 28 (10th Cir. 1967). See also Pollard v. United States, 352 U.S. 354, 361 (1957) (accidental delay in imposing valid sentence held not "purposeful or oppressive"). Other courts are willing to consider negligent or unjustified prosecutorial delay. United States v. Haggett, 438 F.2d 396, 400-01 (2d Cir.), cert. denied, 402 U.S. 946 (1971); Hanrahan v. United States, 348 F.2d 363, 367-68 (D.C. Cir. 1965), cert. denied, 389 U.S. 845 (1967); United States v. Blanca Perez, 310 F. Supp. 550, 551 (S.D.N.Y. 1970). 130 Harlow v. United States, 301 F.2d 361, 366-67 (5th Cir.), cert. denied, 371 U.S. 814 (1962) (unsuccessful attempt to gain information from Swiss banking authorities). 131 United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 624 (2d Cir. 1963). 132 See, e.g., ILL. ANN. STAT. ch. 38, § 103-5 (a)-(b) (Smith Hurd 1970) (competency proceedings); Kan. Stat. Ann. § 62-1433 (1964) (missing material evidence extends time period one term); W. VA. CODE ANN. § 62-3-21 (1966) (insanity of defendant, missing witness, continuance on motion of accused, escape, or hung jury); IND. R. CRIM. P. 4(d) (missing material evidence, extends time period 90 days). State statutes generally do not define excludable periods as precisely as do the proposals under consideration. 138 See, e.g., CAL. PENAL CODE § 1382 (West 1970); IDAHO CODE § 19-3501 (1948); Iowa CODE ANN. § 795.3 (1967). 184 Act of Apr. 28, 1972 § 2, N.Y. CRIM. PRO. Law § 30.30(4) (McKinney 1972); 2D CIR. R. 5; S. 895, 92d Cong., 2d Sess. § 101 (1972); ABA STANDARDS § 2.3. 1973] SPEEDY TRIAL 679 Delay Resulting from Other Proceedings. all the standards exclude: ... Similar provisions in The period of delay resulting from other proceedings concern- This reiterates the traditional rule that delays caused by the defendant may not accrue to his benefit. The effectiveness of the proposals in curbing pretrial delay may hinge on judicial interpretation of the above exclusions, particularly with respect to the meaning of "hearings on pretrial motions." Some provision of this sort is necessary both to prevent the defendant from taking advantage of numerous motions to expend speedy trial time and to make allowances for complicated cases. It is not clear in the New York legislation, Second Circuit Rules, and ABA Standards, however, when this excluded period begins and ends. The most obvious construction is to exclude all time from the date of filing of the first motion to the date of decision of the last motion. 136 This view, however, prejudices the defendant since he may not be the cause of all delay within this period. For example, the Government can delay a hearing by filing its reply brief long after the motion is made. 187 Judicial commitment to the elimination of delay will be required in order to prevent possible abuses. For example, at arraignment the judge could require all pretrial motions to be filed by a certain date, with reply briefs due a reasonable time thereafter. At that time he would 136 ABA STANDARDS 2.3(a); see Act of Apr. 28, 1972 § 2, N.Y. CRIM. PRO. LAW § 30.30 (4) (a) (McKinney 1972); 2d Cir. R. 5 (a); S. 895, 92d Cong., 2d Sess. § 101 (1972). S. 895 also excludes time consumed by examination and treatment pursuant to the Narcotic Addict Rehabilitation Act of 1966. Id. This exclusion probably applies in the Second Circuit as well, even though it is not enumerated in the Second Circuit Rules. 138 This definition would provide no impetus for courts to process motions efficiently. Since preliminary motions are filed soon after arraignment and motions to suppress are often heard the day before trial, this construction could exclude all time between arraignment and trial from being counted toward a violation of speedy trial. Furthermore, this segment of the criminal process usually lasts the longest and it is here where significant delays are most likely to occur. 137 The possibility of abuse is enormous in districts in which the prosecutor controls the calendar. He could, negligently or intentionally, subvert the purposes of the rules by not setting prompt hearing dates for motions. Similarly, competency proceedings may require an inordinate amount of time through no fault of the defendant. Perhaps the court order for a mental examination should specify the maximum period of hospitalization. See 18 U.S.C. § 4244 (1970) (judge may order defendant committed for a reasonable period of time); D.C. CODE ANN. § 24-301 (Supp. V, 1972) (reasonable period). 680 THE GEORGETOWN LAW JOURNAL [Vol. 61:657 also set a date for the hearing on the motions. If the defendant violates the time limits, any resulting delay would fall within the excluded period; if the Government requests an extension, the time beyond the original date set for hearing would be counted toward a violation of speedy trial. This pro lure would expedite cases and define with precision the amount of time excluded as a result of the defendant's pretrial motions. 138 S. 895 provides that only court days actually consumed in connection with pretrial motions, interlocutory appeals, or trial with respect to another charge are to be excluded.139 This approach favors the defendant, but it may prove impractical, particularly in light of the 60-day time limit within which all proceedings must occur.140 Absence of the Defendant. All of the proposals exclude delay resulting from the “absence or unavailability” of the defendant.111 The Second Circuit Rules elaborate the meaning of these words: A defendant should be considered absent whenever his location is This provision places an obligation on the prosecutor to make a good faith attempt to locate and arrest an absent defendant after the indictment has been filed unless the defendant is "attempting to avoid appre 138 Similar problems may arise in defining what time is to be excluded when the defendant is to be tried on other charges. Some workable method of computation should be promulgated to assure uniform application of the rules and to avoid needless litigation on a trivial matter. 139 S. 895, 92d Cong., 2d Sess. § 101 (1972). This provision does not apply to competency hearings. 140 A defendant could easily delay trial beyond the prescribed limits by filing staggered motions over a one-month period. Assuming that the Government must reply to each motion and the court must set a separate date to hear each motion, the process could take much longer than 60 days. All of that time except actual court days would count toward the speedy trial violation. 141 Act of Apr. 28, 1972 § 2, N.Y. CRIM. PRO. LAW § 30.30 (4) (c) (McKinney 1972); 2D CIR. R. 5(d); S. 895, 92d Cong., 2d Sess. § 101 (1972); ABA STANDARDS § 2.3(e). 142 2D CIR. R. 5(d); accord, Act of Apr. 28, 1972 § 2, N.Y. CRIM. PRO. LAW § 30.30 (4) (c) (McKinney 1972); S. 895, 92d Cong., 2d Sess. § 101 (1972); ABA STANDARDS § 2.3(e). |