Wednesday, July 27, 2016

Be careful what you say on the record.

We have all been there. You have a co-defendant trial and all of the other co-defendants are continuing a trial setting for another round of motions. And you think those motions should be considered before trial. But your client is in your ear about speedy trial. And then you say this:
Your Honor, as you know, we’ve previously filed a motion for speedy trial based on constitutional speedy trial rights, which the Court has overruled. Solely in order to make sure that I’m not putting myself in a bad position if this ever gets to the Tenth Circuit, Mr. Black wishes to reassert that right and introduce a pro forma objection to any continuance. As I said, Judge, it’s only to—I don’t want to undermine that position if I ever have to get in front of the Tenth Circuit on it.
This is, generally the situation that presented itself in United States v. Black. Unfortunately the 10th Circuit was not impressed with this comment calling it an "especially weak" assertion of the defendants speedy trial right. We know the 10th Circuit wasn't impressed because they not only quoted the lawyer, they quoted the lawyer TWICE in the opinion. And we also know that under Barker v. Wingo, one of the factors in considering whether a defendant's speedy trial right was violated is the defendant's assertion of that right. So, in Black even though there was a 23 month delay (a large amount was attributed to the Defendant), six indictments, two dismissals by the government along the way (but no partridge in a pear tree) the 10th Circuit found no constitutional speedy trial violation.

The practice tip is obvious: the 10th Circuit is listening. They see you when you're sleeping and they definitely know when you have been bad. So when you are trying to enforce a motion (speedy trial or otherwise) be very careful what you say on the record, for goodness sake.

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