See also cases of the Supreme Court, Tollett v. Henderson, 411 U.S. 258 [supporting above proposed subsections (ii) and (iii)], and Davis v. United States, 411 U.S. 233 [supporting above proposed subsection (iv)], decided April 17, 1973.

STATEMENT OF JAMES L. TREECE, U.S. ATTORNEY FOR COLORADO

Colorado is probably in the top one-fourth of the districts based on volume. This happens because more populous states generally have two or more districts. Despite this my staff is ready for the speedy trial bill but the courts are not, and I submit that the Congress should first prepare the courts before passing this measure. I have been U.S. Attorney in Colorado for about five and one-half years. During that period the criminal caseload has doubled, the number of criminal trials has doubled, my staff has doubled. But the number of district judges has gone from three to four. Because the district court sits primarily in Denver and the district judges all live in Denver, very good use is made of available judge time. Also we are blessed in Colorado with very hardworking district judges. One comes to work about 5:00 a.m. and the others at about 7:00. 5:00 p.m. hearings are routine and 6:30 a.m. hearings are not uncommon.

But what has happened to our district court in Colorado since Rule 50 (b) was implemented with a plan of 60 days from arraignment to trial. In Colorado almost all criminal cases go to trial within 60 days of arraignment unless delayed by the defendant. Even counting delayed cases, e.g. because of illness of the defendant, the average length of time from arraignment to trial is less than 60 days. Our courts examine claims of delay beyond 60 days to see if justice and Rule 50 (b) requires dismissal of the case.

Colorado has met the 60 day deadline, but at what cost. 1200 civil cases are now awaiting trial whereas the court was current on its civil docket before the speedy trial program was commenced.

We are now threatened by our judges with having our criminal cases dismissed so that they can devote some time to civil cases. This is exactly what this bill proposes to do! Congested courts are ordered to throw the baby away. By baby I mean guilty, perhaps vicious, criminals. And when that happens in Colorado the public is going to be outraged; and rightly so, if vicious criminals are loosed on them for what to the public will be no satisfactory reason.

And where will the blame be placed? Not on my office certainly, since we will be always ready for trial (as we generally are at the time we file the case). Not on the courts certainly, since it is well known that our judges are doing a superhuman job now. The blame will fall on the Congress for making unconscionable demands on the courts. This bill will become known as the Congressional pardon. When this bill was first proposed there may have been a need for it. That need may not exist any longer. Nearly two years ago all federal district courts commenced a speedy trial program. I assume it is working well everywhere. The first thing that needs to be done is to find out what has happened in those two years. Then it can be determined what needs to be done, if anything. If that study shows that more judges are needed, will the Congress be willing before 1977 to provide for those judges? I say 1977 because I hear that 1977 is the soonest additional judges will be granted. If so, 1977 is the soonest any speedy trial bill should be passed.

There are many unrealistic provisions in this bill from my vantage point. The first is the one I just mentioned and that pursuant to it, court congestion may cause dismissal of a case. The time periods in the bill ignore realities of practice. Time periods should run from arraignment in the charging district rather than from initiation of the charge, whether such period be 60 days or 180 days. Prior to arraignment in the charging district delays may easily arise. For example, prisoners aren't moved immediately when ready because the marshals try to make their trips worthwhile by combining the movement of several prisoners. So it may take several weeks to get a prisoner from Florida to Colorado during which time he will be provided an attorney and perhaps have a hearing relative to his removal.

A defendant released on bond and ordered by a magistrate in Florida to go to Oregon has to do it on his own-that is at his own expense and in his own way and he may not show up for several weeks.

The proposed Federal Rules of Criminal Procedure would require U.S. Attorneys to make greater use of summonses. This is a cumbersome process. To save expense we frequently will mail the summons. If that doesn't produce the

defendant we then have the marshal serve the summons. If that doesn't bring the defendant in, we get an arrest warrant and have him arrested. But, if our time is to run from the date of the charge, then we cannot afford to use the summons method of bringing defendants in. We will have to have defendants arrested as soon as possible. Likewise this bill would permit time to run against the prosecution while the defendant is being looked for. What problem will that cause? Well, we will ask the subject law enforcement group to put aside its other work and go on manhunts to the detriment of investigations which should be done. Unless we go all-out, we cannot be sure the court will hold that the whereabouts of the defendant were unknown between charge and eventual arrest. We prosecutors will have to marshal the intelligence resources of the various federal agencies and move closer to one police force. Otherwise we will risk the court holding that the whereabouts of the defendant were not unknown because for example if we had checked with the Chicago police they could have told us the defendant was in Chicago or had we checked with IRS they could have told us where the defendant was when he filed his last tax return or had we checked with Social Security they could have told us where the defendant received his last disability check.

All of these problems and many more I could mention could be obviated by having one time limit and it should commence with arraignment in the charging district.

This bill assumes that the only way public interest can be served is by granting speedy trials. I submit U.S. Attorneys serve the public interest. What we do is always what we believe to be in the public interest. Public interest is served by assuring that the guilty are punished and not freed on technicalities. Even if the courts do not go along with wholesale final terminations of prosecutions, the chance to escape punishment on another technicality is presented to the defendants. The courts will be deluged with motions and hearings on the speedy trial issue. Even though all defendants are now assured speedy trials, as written this bill only confuses the issue. The issue becomes, "does the delay fall within a stated exception." The exception is not clearly stated. For example, is the time period tolled during the time required to comply with a preliminary court order. Lastly, I feel that if the intention is to grant the chance to reinstitute a prosecution that has been dismissed that there should be a different test for right to reinstitute. If the test is whether an improper delay occurred that issue was already resolved against the prosecution when the case was dismissed. I feel it would be better if there were but one hearing and that were held before dismissal. Dismissal would then be with prejudice with no right to reinstitution. But a balancing test to prevent dismissal or for reinstitution should be available. Some of the criteria could be:

1. How heinous was the crime?

2. How highly probable is it that the prosecution will prevail?

3. Was the delay due to the fault of the prosecutor?

4. What prejudice will occur to the defendant if the case were reinstituted? If the defendant is likely guilty and the crime was a vicious one and the defendant is not prejudiced by any delay in presenting his defense and the delay was not the result of aggravated negligence or incompetence on the part of the prosecutor, then there should be no dismissal in the first place.

TESTIMONY OF W. VINCENT RAKESTRAW, ASSISTANT ATTORNEY GENERAL FOR LEGISLATIVE AFFAIRS, DEPARTMENT OF JUSTICE; ACCOMPANIED BY H. M. RAY, U.S. ATTORNEY, NORTHERN DISTRICT OF MISSISSIPPI; JAMES L. TREECE, U.S. ATTORNEY, DISTRICT OF COLORADO; EARL SILBERT, U.S. ATTORNEY FOR THE DISTRICT OF COLUMBIA; AND MAC REDWINE, LEGISLATIVE COUNSEL, OFFICE OF LEGISLATIVE AFFAIRS

Mr. RAKESTRAW. Thank you, Mr. Chairman.

I am pleased to have this opportunity to present to the subcommittee the views of the Department of Justice with respect to S. 754, the Speedy Trial Act of 1974. Your introductions were well taken and we thank you for them.

I would like to short circuit my statement as much as possible to preserve the committee's time, but before I do, by way of further introduction, I would like to try to explain what we did at the instruction of Attorney General Saxbe when he came to the Justice Department.

What we did was to emphasize the U.S. Attorneys Advisory Council. Part of that advisory council is the Subcommittee on Legislation and Court Rules. Your letter of invitation was quite well taken in that you asked us to invite U.S. Attorney Ralph Guy from eastern Michigan. We did invite Mr. Guy; unfortunately, he was unable to be here. The U.S. attorneys with me today are all on the subcommittee I mentioned. And I would like to put into the record the purpose outlined by the Attorney General for setting up this subcommittee. I have it here.

Mr. CONYERS. We welcome it at this point in the record. [The outline follows:]

SUBCOMMITTEE ON LEGISLATION AND COURT RULES

The purposes stated by the Attorney General in his creation of the Advisory Committee of United States Attorneys were:

(1) To give the United States Attorneys a voice in Departmental policies. (2) To conduct studies and make recommendations with regard to improving management, specifically with respect to relationship between the Department and the United States Attorneys.

(3) To improve liaison with State Attorneys General to the end of a better understanding of the proper sharing of law enforcement responsibilities by state and federal law enforcement agencies.

(4) To promote greater consistency in the application of legal standards across the country and across the levels of government.

(5) To aid him in formulating new programs for improvement of the criminal justice system at all levels, including the penal system.

OBJECTIVES

In order to accomplish its responsibilities for the above purposes the objectives of the Sub-Committee on Legislation and Court Rules shall include the following:

(1) Establishing liaison and subsequent exchanging of views, comments and suggestions, with others involved in the Sub-Committee's areas of responsibility. (2) Providing comments and suggestions, on an on-going basis, to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States.

(3) Reviewing and responding to legislative proposals, including such current pending subject matter as:

(a) Federal Criminal Code.

(b) Federal Rules of Evidence.

(c) Speedy Trial.

(d) Federal Grand Juries.

(e) Deferred Prosecution of Adults.

(4) Initiating legislative proposals on Criminal Justice System subject matter. (5) Commenting on impact of court rules, court decisions, Department policy, and legislation of the criminal justice system.

MEMBERSHIP

The membership of the Sub-Committee on Legislation and Court Rules shall consist of the six following regular members: Ralph G. Guy, Jr.-(E., Mich.); D. Dwayne Keyes-(E., Calif.); James R. Thompson—(N., Ill.); James M. Sullivan, Jr.-(N., N.Y.); James L. Treece (Colo.); H. M. Ray, (N., Miss.), Chairman; and such other special members, to be selected by the Chairman, as may be needed to carry out any special or particular Sub-Committee objective. Mr. RAKESTRAW. Thank you very much.

My role here today, as I was chartered by the Attorney General to coordinate the U.S. Attorneys Subcommittee on Legislation and Court Rules, will be to try to establish the broad Justice Department policy, then to allow Mr. Treece, Mr. Ray, and Mr. Silbert to respond directly to the committee, because we feel this dialog and subsequent dialog between committee counsel and members of the committee will be the most productive thing we can do on this bill.

Mr. CONYERS. I quite agree.

Mr. RAKESTRAW. We also ask the record be left open to submit further opinions from the Department as well as to recommend further modifications to this bill.

I might add that while our general tenor is to agree with Mr. Kirks to delay action, legislative action, on this matter until we can completely analyze rule 50(b) and its impact on speedy trial, we have prepared at great length comments and amendments to the present bill that we have before us, S. 754. We have these in written form, along with all of our comments. We have been meeting with the various divisions of the Department of Justice, as well as with the U.S. Attorney Subcommittee on Legislation over the last 2 weeks, to prepare these for use by counsel. We stand ready to substantiate our modifications and also to make further modifications if the subcommittee deems that legislation is a proper way to go. Our feeling is that legislation may be premature.

With that, I will get into an abbreviated form of my statement, that should be no more than two pages long, and then turn the mike over to U.S. Attorney Treece from Colorado, who we feel is a very good man to comment, since his district is the whole State. We also feel we have a diverse representation in having Mr. Ray from the northern district of Mississippi and, of course, Earl Silbert, U.S. attorney for the District of Columbia.

Mr. CONYERS. But you don't have anybody here that is from a place where the problem is most aggravated. I mean, the District of Columbia is, of course, an exception to these provisions, and these other jurisdictions aren't notably overcrowded.

Mr. SILBERT. Mr. Chairman, if I may, the speedy trial problem has been a continuing problem in the District of Columbia, and I must take some issue with some of the comments in the judiciary report of the Senate committee.

If you recall, a few years ago we did have a long delay in the U.S. District Court for the District of Columbia, a median time before trial of approximately 10 months. Congress attempted to react to that problem by transferring a good deal of the litigation of criminal cases from the Federal court to the local superior court and at the same time increased substantially the number of available judges. The result of that, admittedly, by decreasing the number of inflowing cases into the district court was to reduce a speedy trial problem there. However, what it did do was transfer to and present problems in our local superior court.

Mr. CONYERS. Didn't Judge Greene work out some revisions that were of some effect in reducing the backlog and in speeding the time? Mr. SILBERT. I think the judge has devoted considerable attention to that, in cooperation with our office. We have had a rather unique

experience in dealing with the problem, both in the Federal and local court system.

Mr. CONYERS. Right. That to me makes the District of Columbia a little unique because of the nature of the Federal system here; I did not mean to suggest that there isn't any problem here. But it is my impression that this prospective legislation would not operate the same way in those districts where we are confronted with backlogs and the problem of speedy trial.

Mr. SILBERT. I think in one way it would—and this is our concern with the problem-by attempting to impose a set time limit, a fixed time limit, for every case, we are concerned that the legislation is departing from the approach that has been taken by the Supreme Court, starting in its cases in 1905 and continuing to its most recent pronouncements on the issue in 1972, that the concept of speedy trial is a relative one, which requires that you weigh the rights of the defendant against the interest of public justice and that each case must be evaluated on its own particular facts.

While most of the cases, Mr. Chairman, particularly the simple kind, can be processed within the time limit set by this statute, the most important kinds of cases in the Federal system that one would be encouraged to prosecute, your fraud cases, your conspiracy cases, your major organized crime cases, require additional time.

Now, admittedly in the statute there is an exception for the so-called complex case. But what is the complex case? And should it be analyzed only under the concept or definition of a complex case as opposed to what we believe is the fair way to proceed, the way of analyzing each case on its facts, on its circumstances, to make sure that the relative interests of both the society and the individual are protected?

Mr. CONYERS. That is precisely the description of the reason why the exceptions were made, as I read the Senate Judiciary Committee report. It is for the complex case they create the exceptions to the rule, in which the very balancing that you describe almost to the exact phrase, is what is to be the guiding consideration in determining whether or not the case will be given additional time beyond that normally provided under the Speedy Trial Act of 1974. I don't understand the problem.

Mr. SILBERT. This will be done, sir, within the concept, I believe, of a set time period

Mr. CONYERS. Right.

Mr. SILBERT [continuing]. Rather than evaluation of the factors that have been carefully enumerated by the Supreme Court, for example, in its recent pronouncements.

Mr. CONYERS. You don't suggest that perhaps there is something unconstitutional about this act?

Mr. SILBERT. No, not at all. I am not alleging in any way its unconstitutionality. I am suggesting, however, that in taking a general overall approach, almost a uniform approach, to the trial of cases, the Congress may, particularly when the Senate subcommittee acknowledges, sir, that it doesn't know the underlying causes for the speedy trial problem-on page 9 of its report, for example, it specifically so states to then attempt to adopt a blanket-type solution for a problem for which it admits it doesn't know the specific underlying causes, we suggest is not the appropriate approach.