Mimesis Law
20 July 2019

Voice of Reason: Daniel Squadron is Right on Speedy Trial Reform

Nov. 15, 2015 (Mimesis Law) — These days in New York, people love to talk about bail. Hell, I am one of those people. Over the last year, we have heard talk of a fair bail system to come, but very little has changed to stop us from sending droves of people off to jail in spite of the supposed presumption of innocence.

But while bail can send a person off to jail, there is a legal ‘song and dance’ that keeps them there. In New York, we have a criminal justice system that spits in the face of people’s speedy trial rights, day in and day out.

One person trying to bring attention to this politically invisible issue is New York State Senator Daniel Squadron. Perhaps it is his youth (he just turned 36), but he thinks he can actually change this system. Squadron’s proposal is simple, sound, and therefore, poor politics. He begins with an idea that should garner universal support, a constitutional right. The 6th Amendment to the United States Constitution reads:

In all criminal prosecutions, the accused shall enjoy the right to a speedy trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

You’ve really got to give it to the 6th. It really packs a lot of rights in there. But right off the top, the first one it guarantees is the right to a speedy trial. But leave it to the Constitution. It grants big rights, but leaves the specifics for us to determine.

Prior to New York enacting its own speedy trial statute, prisoners merely brought habeas petitions in federal court.

By the late 1960s, prisoners awaiting trial in New York state courts were bringing 1,000 habeas corpus petitions a year in federal court protesting the length of their pretrial incarceration. In an en banc opinion, the U.S. Court of Appeals in 1971 acknowledged the “serious” jeopardy to constitutional speedy trial rights. The record in the case showed 2,899 prisoners had been detained more than three months (!) awaiting trial.  Nowadays, pretrial delay measured in years is not uncommon.

Thus began a battle between the judiciary and the state’s prosecutors over how to fashion a new speedy trial law. The judiciary wanted a rule that the defendant must be brought to trial within a certain time period or the case would be dismissed. Prosecutors wanted a rule that avoided a violation of speedy trial rights by the government merely claiming that they were ready for trial. This may sound like a distinction without a difference, but anyone who has practiced in New York’s criminal courts knows very well the distinct difference between the two proposals.

Although I’ve spoiled the ending, clearly the prosecutors won. In 1972, Governor Nelson Rockefeller (who was able to get his Rockefeller drug laws passed the following year) led the charge for passage of Criminal Procedure Law § 30.30, and what has come to be known as the “ready rule.” Since the passage of that law, speedy trial rights have all but been swept out of New York’s courts.

But almost half a century later, Senator Squadron thinks we should start working on sweeping that 6th Amendment right back in. His proposal seeks to make significant first steps towards reviving the long dead right of a speedy trial in New York. Squadron recently wrote an op-ed piece for the New York Daily News in which he pointed to the average lifespan of a criminal case in New York.  A far cry from the three month delay that was the catalyst for Rockefeller’s speedy-trial-busting legislation, Squadron points out that:

New York City defendants average a staggering 594 days before going to trial, according to a report by the Criminal Court of the City of New York. The New Yorker has reported that in the Bronx, 74% of felony cases surpass the state’s speedy trial guidelines.

In the infamous and tragic case of Kalief Browder, a teenager was locked up on Rikers Island for over 1000 days (700 in solitary confinement) for a charge that he had stolen a backpack.  His case was eventually dismissed.  He committed suicide two years after his release. Squadron has named his proposal after the late Browder. In it, he seeks to chip away at the “ready rule,” which has allowed prosecutors to treat speedy trial rights like monopoly money and keep people locked up for years.

Here is the basic ready rule.  A person is arrested and arraigned.  In most jurisdictions, if the prosecutors cannot get an indictment (felony) or a signed document (misdemeanor) to trial within the statutory period, then the defendant’s case is dismissed. This is the heart of the right to a speedy trial. If the government cannot get their act together to prosecute, the defendant should not have to suffer indefinitely in jail awaiting his right to trial.

But for those cases where the prosecution can jump that initial hurdle, the defendant’s right to a speedy trial all but disappears. The defendant and his lawyer must then wade through the discovery phase of the case, which is expressly excluded from the statutory speedy trial period. At this stage, the prosecutor can waste months and months gathering documents and providing them to the defense.

On most cases, this entire process could be completed within a day or a week at most. State level cases are generally not that complicated. But prosecutors know that stretching things out is a way of putting more screws to an already screwed defendant. A defendant’s speedy trial rights go away because he “asked” for this discovery, as if he wouldn’t otherwise be entitled to it.

Once the defendant comes out the other side of the discovery process, he then gets to truly experience the shell game that is the ready rule. Most courts have a fraction of trial courtrooms available to the multitude of defendants whose cases are on for trial on any given day. For prosecutors, it is a numbers game. They know that the vast majority of the time, they can utter the words, “ready for trial,” and the judge will accept this statement at face value because there is no way to test whether it is true. What, are judges supposed to question the honesty of prosecutors?

But it is not just the prosecutors who claim that they are “ready” for trial when they are not. It is the prosecutors who mix a bit of honesty with dishonesty to achieve the same affect.

In a system that tends to laugh at adjournment requests shorter than two months, DA’s have figured out that they can merely state that they are not ready for trial that day (the honest part) but then claim that they will be ready for trial in one week (the dishonest part). Rarely will a judge accommodate an adjournment for such a short period of time, so the case is adjourned for a month or more. The defendant waits, and the DA only has to take a one week hit on the speedy trial clock for all those months of wasted time they have before they really have to try the case.

One of these adjournments is bad, but when they are strung together repeatedly, they add up to a constitutional right that is not worth the paper it was scribed upon. I have literally watched as ADA after ADA has stated that they were not ready for trial today, but each one of them would definitely be raring to go in exactly 7 days.  When judges sleep through this blatant gaming of the system and the bold-faced violation of defendants’ speedy trial rights, then we need laws that will allow us to wake them up to these abuses.

And that is where Squadron’s bill comes in with the potential to return some semblance of speedy trial rights to New York defendants. It proposes the following:

  • Prosecutors must prove that they are ready for trial by affirming that their evidence is imminently available.
  • Prosecutors can only announce ready for trial if they have certified that they have complied with New York’s discovery laws.
  • If the prosecutor states that they are ready for trial, but then on a subsequent date state that they are not ready, they must provide facts defending their reversal of readiness and their explanation must be approved by the court.
  • Judges must rule on the number of days the prosecution will be charged at each adjournment.

These may sound like common sense proposals, but we can assume they will be opposed much in the same way that 1971’s New York prosecutors opposed a clear cut speedy trial rule.

Squadron has shown that when it comes to the rights of defendants in New York, he may not be on the right side politically, but he is most certainly on the right side. This young Senator deserves the backing of every red-blooded defense attorney and civil rights organization out there.  He should receive deafening support from every city, county and state bar association and defender organization.

Or, we could all just assume that things will never change and Squadron’s bill will die in committee. Wouldn’t that be an ironic fate?

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