Mr. COHEN. Your position is by passing such legislation you actually encourage more trials rather than reducing them?

Mr. RAY. I would say so; yes.

Mr. TREECE. Certainly our experience has been that the 50 (b) plan has not reduced the number of cases going to trial and it certainly would be a temptation to some defendants, to demand trial or dismissal. There would be the temptation on all defendants to take the

chance.

Mr. COHEN. The other factor to be considered, it is well known most judges have reputations as to what happens when you have a case to go to trial which could be disposed of in another fashion. That is a factor to be considered here as far as insisting upon the trial, also. Mr. TREECE. I don't know.

as

Mr. COHEN. I think right here in the District of Columbia, as far

Mr. SILBERT. If I could address myself to that very problem. That is one of the problems with mandating speedy trial that gives us greatest concern, and that is the individual calendar system which has been determined to be the most efficient way from an overall management point of view of disposing of criminal cases. Our experience in both the Federal and local court system has been that when each of those systems has had a substantial backlog that there have been a myriad of factors affecting disposition of cases, and the single most important factor has been the individual judge himself.

Judges like all of us, lawyers, human beings, operate at different speeds. Some judges work quickly, some work more slowly. Some work harder and some work less harder. And also the plea policies. I think they really do have an effect and that is an effect to which you just referred. We have a number of judges, for example, with whom it makes no difference whether a defendant pleads or goes to trial. In those cases we just find his backlog keeps going up because whether the judge is a tough sentencer or lenient sentencer, the defendant has nothing to lose. And it is with those cases and with a number of judges where we find we would have enormous problems. Mr. COHEN. Theoretically, that is not supposed to be a consideration but I know that you, having had considerable trial experience, realize as a practical matter it is.

Mr. SILBERT. We have tried to urge judges to differentiate and I think the ABA recognizes this possibility, but if they don't, you cer tainly can't compel them to do so. You can't compel a judge to work faster. We can't compel a judge to work longer hours. What we are concerned with, you have 10 judges on a court, 5 are fairly-this has been our experience-5 are current, 5 are way behind. What do we do with those cases if the prosecutor is ready, where the judge is way behind? We have no control. I am not sure that the system has any control over that, and that is why the fixed, set time limit gives us concern from the rights of the public, which may result in the dismissal of the court cases because of a failure to comply with specific time limit.

Mr. CONYERS. I fail to see how a judge working at a different speed from another judge, under this legislation, is going to end up dismissing with prejudice a case that should have been brought to trial within the 60-day period from arraignment.

After all, if there is just cause for the extension, the case will not be thrown out. Even if there isn't, I could not even begin to imagine judges who would begin dismissing cases on a wholesale basis simply because they work slower than other judges.

Mr. SILBERT. Mr. Chairman, as I read the bill, court congestion and certainly congestion on an individual calendar system is specifically ruled out as a basis for granting an extention or continuing a case. In other words, if there is congestion and failure to comply, the case must be thrown out, and that is what specifically gives us concern. Mr. CONYERS. Can it be reinstituted if good cause is shown?

Mr. SILBERT. No, sir. As a matter of fact, the legislation as I read it, particularly the legislative history, specifically rules out court congestion as a basis or conceptual circumstances which would provide a basis for reinstituting it.

Mr. CONYERS. That is really why we give it 7 full years to come into fruition.

Mr. SILBERT. Well, no matter how many judges you appoint-for example, I couldn't come before you, if I were given that responsibility, to ask for more judges in the superior court, to which this bill applies, because I think there are a sufficient number of judges to handle the caseload if all were effective, hard working, and adopted policies that permitted of a just and effective disposition of cases.

But that is what our problem is. That is our genuine concern with the individual calendar system, which is, nevertheless, the most effective way of handling the calendar, so the administrative courts have concluded, and so have we.

Mr. CONYERS. I would like to read to you from the report of the Senate Judiciary Committee in connection with this legislation, in which they say at page 9, "almost half of the delay between arrest and trial is consumed awaiting indictment."

That is why we have a two-phased process in terms of the Speedy Trial Act; the time from the arrest to the indictment or information is usually where much of this time is wasted. It is getting to that process.

And they go on to say: "This is not because the grand jury hearing itself takes weeks or months-in most cases presentation of evidence and deliberation combined is a matter of hours. However, weeks and months of delay are consumed simply waiting for a grand jury to hear the case. Similarly great and unnecessary delays are involved once the grand jury votes a bill until the papers are completed and the formal indictment is issued."

It would seem to me as this bill is comprehended, we would feel, in those districts where they are going to be needing more members of the court and more staff, I think, an obligation to increase them. In the last 4 years there has not been one single Federal judge added to our system. It seems clear to me, with all deference to your concerns in connection with how the judges would in fact conduct themselves and at what rate of speed they would proceed, that this matter regarding phasing in over the course of 7 years and submitting plans for each of the districts would result in a pattern which would anticipate the time in which each of them would work and their speed and any other of these subjective factors.

Mr. SILBERT. I can't disagree with what you say, except I would like to make one or two observations, Mr. Chairman.

First of all, I would assume your committee would be willing to include language in the statute that if the Congress at any time fails to supply the resources which have been determined to be necessary, for whatever reason the Congress may have, that the time limits imposed by this bill, which is predicated upon the providing of those resources, would become inoperative. I would assume you would be willing to do that?

Mr. CONYERS. I think we would have to consider that, but I don't think there would be any assumption that that would flow automatically. It did not over the 3 years the Senate subcommittee studied this, and it is not in the language now. They studied it really far longer than we will ever have an opportunity to, if it is the judgment of the Judiciary Committee to pass this within the 93d session of Congress.

Mr. SILBERT. But, sir, if the whole assumption is that the backlog is attributable to insufficient resources and this will help, will give an impetus to the Congress to provide those resources to comply with the time limits, then it would be only reasonable, we would submit, if the Congress for whatever reasons it deems appropriate does not provide those resources that are deemed to be necessary, that these time limits not become operative.

I would like to take issue with one point by one of my brethren, getting back to the complex issues and 60-day trials. With my experience, I would say about 20 percent of the cases that a Federal prosecutor should prosecute, not the very simplest cases but more complex, are the kind that cannot be tried between the time of, say 60 days between indictment and trial, but more time is simply necessary to handle the pretrial motions of the type averted to by Congressman Cohen.

With respect to your point about the time, the fixed time between arrest and indictment, perhaps there have been in the past some abuses of that. Again, sir, I have real problems with the 30 days. I know in our district, for example, we have four to five grand juries sitting regularly. We are attempting to utilize the grand juries to a greater advantage, not to put less effort there, but to put more and make more use of the investigative authority of the grand jury, with the hope that weaker cases will be weeded out of the system and that the grand jury will return indictments only in those cases where prosecution is merited.

But you can't speed up the process to do that, sir. You need additional time. And while we are doing everything we can to make the grand jury process as effective as we can, I am concerned with the 30-day time limit, for example. We have in our district a 45-day time limit. There are a number of cases we have gone to the court even with that period of time in the important cases, the cases of significant public interest, to ask for more time. We are beginning to have to litigate that question with defense counsel saying, the indictment was returned, we move to dismiss.

This is the kind of problem that concerns us with the imposition of a set time particularly those as low as those contained in the Senate bill.

Mr. RAKESTRAW. Mr. Chairman, I would like to point out the Chair a moment ago used 60 days from arraignment. That highlights one of our modifications, if the committee chooses to move the bill.

The present draft of the Senate bill does not provide 60 days from arraignment. However, it does provide 60 days from indictment or information.

Mr. CONYERS. Yes.

Mr. RAKESTRAW. And our modification, which Mr. Ray will discuss, is 60 days from arraignment.

Mr. RAY. I was interested very much in the constitutional concern that the subcommitte posed to Mr. Kirks, and that is a concern of ours, also. I think in our recommendation on 3161 (b) of the bill, we would propose that language like this be used. Change the period to a comma after 30 days, and put this language in to take care of rural districts— 60 percent of the districts, or perhaps more "but if the defendant has been charged with a felony and no grand jury has been in session in the district during such 30-day period, then an additional 30 days shall be allowed for the filing of an indictment."

Even in the busiest district I think jurors are entitled to be off Christmas and perhaps vacation in the summer. I am sure some districts, even big districts, do take off in December and maybe July.

So I think using that as a predicate, you can also satisfy the Constitution problem, the problem you used, Congressman Cohen. So we would suggest that 3161 (b) provide for these districts that we believe will never have enough work to justify having the jury come in once a month.

You see, my real criticism of this bill is everybody has gone off on the premise that southern New York, maybe northern Illinois, are the problems. Well, they sit in one courthouse. Most of the districts try cases in divisions, and I have four divisions. They are statutory divisions, by the way, so we draw our grand jury from the district at large. Some of the places have district grand juries. So they are totally unlike the southern New York and northern Illinois situations.

We would also propose that in 3161 (a) you provide that the court could try the case within the judicial district so as to insure a speedy trial to eliminate this idea the defendant has the automatic right to be tried

Mr. COHEN. I was particularly interested in Mr. Treece's comment about the judge, because we had a similar problem at the State level in the State of Maine. We don't have too many Federal criminal prosecutions, but a great deal of the activity at the State level, where I was prosecuting for 2 years and I would say criminal cases took up 90 percent of the docket, so you had a situation where all of the civil cases were waiting for trial of the criminal and whereby attorneys representing the civil litigants had to wait 3, sometimes 4 years. This makes for a mass of legislative proposals, as you know.

What we did to correct the situation in my home area, at the county level, was to set up a courtroom in the same building and have two judges presiding at the same time, one strictly civil litigation, the other strictly criminal litigation.

I was wondering whether that might not be one recommendation as far as allocation of the manpower, is that we increase our courtroom

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facilities and put additional judges into those areas so you could have the trial of criminal cases proceeding at the same time as civil cases. That would avoid your situation, it seems to me, where the judge is going to throw out the criminal cases to get to the civil docket.

Mr. TREECE. Well, I am not sure I made my original point clear. The reason the judge is in that situation, in attempting to stick with their 60-day plan, they stayed with the 60-day plan, but they couldn't get to the civil cases doing that. This is a matter of at least one additional judge in order to have the civil docket moving during this period. This is the thing I am concerned about in this bill. There may be a time lag from the time it is obvious another judge is needed until there is actually another judge on board. And during that time lag the cases are maybe going to be thrown out.

We are facing that situation right now in Colorado, and all because we are trying to have speedy trials.

Mr. CONYERS. Are there any concluding remarks you would like to make before we terminate the hearing?

Mr. RAY. I would like to come back to the one question which I think is about the most important feature in the bill, 3161 (c), the starting of the timing. The bill, as you know, provides 60 days from the filing of charges. We would propose that a lot of problems would be solved if you would use language like this, in lieu of that:

The arraignment of a defendant charged in an information or indictment with the commission of an offense shall be held within ten days from the filing date (and making public) of the information or indictment, or from the date a defendant has been ordered held to answer and has appeared in such district where the said charge is pending, whichever last occurs. Thereafter, where a plea of not guilty is entered, a defendant shall be tried within sixty days from arraignment on the information or indictment at such place, within the district, as fixed by the appropriate judicial officer.

If I might be heard just a minute on that. You see, by starting at this point, you avoid a lot of frivolous motions, by habitual criminals especially. You have an orderly starting point and arraignment.

If the committee feels we are trying to get another 10 days, we have an alternative. We have suggested language in the exhibits.

I know you are in a hurry to get away here now, and I just want to say that is one of the most important amendments that we could offer to you to make this palatable.

Mr. COHEN. One more question. The difficulty the rural areas might encounter is because we may have a grand jury sitting once or twice during the course of the year. This is going to create problems under the uniform approach. I would like to inquire of you gentlemen as to what use you raise a question in my mind by your statement-the use of an information might be as opposed to going to the grand jury. For example, in States like my own especially, a defendant might not consider waiving his right to be indicted by a grand jury and go by way of information. Historically, informations in my State are used only when you intend to plead guilty. I am wondering, from your experience as prosecutor, would you simply avoid this problem about time delays in rural areas by simply establishing as a matter of procedure that a defendant could go by way of information and insist upon his trial?