Kethledge slams speedy trial ‘presumption of prejudice’

In U.S. v. Ferreira, the 6th U.S. Circuit Court of Appeals dismissed charges against the defendant for conspiring to sell 500 grams of methamphetamine because of the government’s “gross negligence” causing a three year delay in his arraignment.

Ferriera was in one county in Georgia when originally charged, but was moved before the government filed a superceding petition for habeas corpus ad prosequendum. Georgia had sent notice to the feds that Ferreira had been moved, but the feds lost the notice, sending the superceding petition and ensuing federal detainers to the wrong county.

The 6th Circuit applied the four speedy trial violation factors from Barker v. Wingo, 407 U.S. 514 (1972) — length of the delay; reason for the delay; defendant’s assertion of his right to a speedy trial; and prejudice to the defendant — finding in favor of Ferriera in all four instances.

This didn’t sit well with Judge Raymond M. Kethledge, who let it rip in a vitriolic dissent that criticized the Supreme Court standards that set Ferriera free on a technicality:

The law’s clarity with respect to the issue we decide today is not nearly commensurate with its stakes. The stakes are that, if the government violates a defendant’s constitutional right to a speedy trial, he goes free, forever unpunished even for serious felonies that he openly admits he committed. Such is the case here: John Ferreira was caught red-handed with nearly 900 grams of methamphetamine (which, like crack, is an enormously destructive drug), and admitted in open court that he conspired to sell more than 500 grams of it. And yet he will serve not a single day of the 110-month sentence that the district court thought he should serve—because, in our court’s view, the government took too long to bring him to trial.

Society surely pays a price for decisions like this one. But the law that we apply in making them is an enigma. We apply a four-factor balancing test, three factors of which are of uncertain significance. The one factor that certainly does matter—prejudice—is in turn divided into three subfactors, two of which are overshadowed by the third, which is whether the government’s delay in bringing a defendant to trial actually prejudiced his ability to defend himself there. Such is the law as handed down to us by [Barker].

Actual prejudice is often easy enough to measure, so if the law had been left there the courts could have muddled through their application of this test. But the law has not been left there. In Doggett v. United States, 505 U.S. 647 (1992), the Supreme Court overlaid all these factors and subfactors with something it called a “presumption of prejudice[.]” Id. at 658. Once this presumption applies (or to the extent it does; I do not know which characterization is more accurate), the government bears the burden of proving the absence of actual prejudice, rather than the defendant bearing the burden of proving its existence. And at that point the defendant typically has one foot out the courthouse door, given the government’s difficulty in proving a negative.

He went on to debate the merits of Doggett, which he said has turned speedy trial analysis into simply a numbers game, with the 6th Circuit now approaching the low end of the threshold:

The question of when this presumption shall apply, then, is consequential for both the defendant and society alike. And that is a question, I respectfully submit, on which Doggett provides little guidance. We are told that “such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows.” Id. at 657. I confess I do not know what this passage means. Only marginally more helpful is the statement that “our toleration of such negligence varies inversely with its protractedness[.]” Id. Neither of these statements, and nothing else in Doggett, provides the lower courts with much guidance as to when the presumption of prejudice should apply. …

This whole line of analysis strikes me as arbitrary. That is not surprising: Doggett gives the lower courts little more than a number to work with; and so the analysis in most cases that apply Doggett is, at bottom, simply a conclusion—that one
number is enough and another is not. This is a deeply unsatisfying way of deciding issues as important as this one. A better way of deciding these cases would be to look beyond the numbers, to the reason why Doggett announced a presumption of prejudicein the first place. As I understand it, that reason is that the particulars of actual prejudice can be increasingly hard to prove over time. … But it is one thing to waive proof of particulars; it is quite another to waive the need to show any indication of prejudice at all. And thus, before applying the presumption, we should at least ask whether there is reason to believe that the defendant has suffered significant, albeit unidentifiable, prejudice as a result of the government’s
delay in bringing him to trial. Only if we are confident that the answer to that question is yes—that there is, in fact, significant prejudice in there somewhere—should we take the drastic step of ordering the defendant set free. Perhaps this is what the Court meant when it said that “negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice.” Id. at 657. But if so, the point has been lost on the lower courts.

Kethledge concluded with:

There are few doctrines in criminal procedure as potent as Doggett’s presumption of prejudice. So far as I can tell, in most cases where it has applied, the defendant has gone free. We need more guidance than we now have in applying it. What the lower courts need, I respectfully submit, is a rule of law—so that, before we set a guilty man free on account of prejudice, we first determine whether there actually is some.

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