Monday, May 3, 2021

Speedy trial & release rights during a pandemic

We want to keep our families, our clients, and our communities healthy during a pandemic. But we also want to protect our clients' rights---including their statutory and constitutional rights to a speedy trial (or at the very least release pending a delayed trial). And yet emergency order after emergency order has halted trials in district courts around the country. Something's gotta give at some point---right?   

Not yet (but maybe soon), at least according to a pair of cases decided by the Ninth Circuit last month.

Client on release; continuance authorized under Speedy Trial Act. In United States v. Olsen, the Ninth Circuit held that a district court abused its discretion when it granted Mr. Olsen's motion to dismiss based on the Speedy Trial Act. Specifically, the district court erred when it concluded that the pandemic did not justify an "ends of justice" continuance over Mr. Olsen's objection. Here's what the Circuit had to say about the ends of justice and COVID-19:

It is true “that the ends of justice exclusion . . . was intended by Congress to be rarely used, and that the provision is not a general exclusion for every delay.” . . . . But surely a global pandemic that has claimed more than half a million lives in this country, and nearly 60,000 in California alone, falls within such unique circumstances to permit a court to temporarily suspend jury trials in the interest of public health.

Client detained; release may soon be required on due-process grounds. In United States v. Torres, the Ninth Circuit affirmed a district court's denial of Mr. Torres's statutory and due-process-based motion for release. But the Circuit cautioned in Torres that "the length of Torres's pretrial detention is likely approaching the outer bounds of due process":

On balance, we conclude that Torres's twenty-one-month detention does not yet violate due process, but we caution that the length of Torres's detention is approaching the limits of what due process can tolerate. The length of Torres's pretrial detention is significant under any metric and is deeply troubling. But the lack of any prosecutorial contribution to the delay and the strength of the evidence supporting Torres's detention lead us to conclude that Torres's detention is rationally connected to a regulatory purpose—preventing danger to the community and ensuring Torres will appear as required. . . . However, all parties agree that at some point, regardless of the risks associated with Torres's release, due process will require that he be released if not tried. . . . And if Torres is not tried by his current trial date of May 25, 2021, the district court and the prosecution must consider whether further prolonging Torres's pretrial detention crosses the line from regulatory to punitive detention.

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