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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In their opinions

Sometimes the prosecution should be careful what it asks for.

– Judge Raymond M. Kethledge of the 6th U.S. Circuit Court of Appeals, explaining in United States v. Jenkins, that the government’s successful effort to “pile on” evidence during a drug-and-gun trial loused up an otherwise perfectly good conviction.

There was no doubt that the police had raided a dope house. There was evidence that Jenkins had something to do with it.

The officers found drugs and guns in virtually every room of the house, most of which lay in plain view on tables or bookshelves.

In the house’s only bedroom, officers found Jenkins’ drivers license, pay stubs, bank cards, work-ID badge, numerous bags of marijuana — including one on a nightstand next to his drivers license — digital scales, and a loaded .38 caliber pistol.

All told, the officers seized 22.4 grams of crack cocaine, 374.4 grams of powder cocaine, 1.9 kilograms of marijuana, several sets of scales, baggies, and other drug paraphernalia, body armor, over $13,000 in cash, three pistols, a rifle, and two shotguns. Many of the weapons were loaded.

The main issue at trial was whether Jenkins, or someone else, constructively possessed the drugs and weapons.

The jury convicted Jenkins of three drug charges and two weapons offenses.

But there was a snag on appeal.

According to Kethledge, joined by Judges Richard Allen Griffin and James G. Carr, there was ‘ample evidence’ to convict Jenkins.

In what can be fairly described as piling on, however, the government sought to admit — and eventually did admit, over Jenkins’ objection — testimony that he had been convicted of an unrelated drug offense some eight years earlier.

What the government thought would be frosting on the cake instead became Jenkins’ ticket for a new trial.

Kethledge side-stepped the issue of whether, under FRE 404(b), the prior conviction was probative of whether Jenkins intended to possess the drugs.

Our precedents are hard to reconcile on this point. Compare, e.g., [United States v. Johnson, 27 F.3d 1186 (6th Cir. 1994)] (“where the crime charged is one requiring specific intent, the prosecutor may use 404(b) evidence to prove that the defendant acted with the specific intent”) with United States v. Bell, 516 F.3d 432, 444 (6th Cir. 2008) (“to be probative of a defendant’s present intent to possess and distribute, his prior convictions for drug distribution must be related in some way to the present crime for which the defendant is on trial”).

But that reconciliation is one we need not effect today.

The government’s much larger problem was the lopsided balance of probative value and prejudicial effect.

Even if we assume for purposes of argument that evidence of Jenkins’ prior conviction had some probative value, that value is microscopic at best.

And that value becomes invisible to the naked eye when the evidence is thrown in with the rest of the evidence in the case. …

Even the government argues — in suggesting that any error in the admission of the prior-conviction evidence was harmless — that its “other evidence of knowledge and intent to distribute in this case was overwhelming.” …

That amounts to a concession that the admission of this evidence, for this purpose, was merely piling on.

And now, the government had a monkey on its back.

[M]eanwhile there looms, Kong-like, the prejudicial effect of the prior conviction. … Even when properly instructed to consider the evidence only for some legitimate purpose — as the jury was instructed here — the danger is obvious that the jury will treat it as propensity evidence instead.
Under the facts presented here, we are firmly convinced that the prejudicial effect of Jenkins’ prior conviction substantially outweighed its probative value. The admission of that evidence was error.

But was the error harmless?

The government says it was, because the other evidence of “knowledge and intent” was overwhelming.

But the charged offenses had an additional element — namely, possession. That element was indeed the battleground at trial. And the government’s evidence on that issue, though solid, was not overwhelming; this was, after all, a case of only constructive possession.

We cannot say with “fair assurance” that the admission of testimony concerning Jenkins’ 1998 arrest and conviction did not “substantially sway[ ]” the result at trial. … The error therefore was not harmless.

From the judicial pen

“There is no right of revolution in a United States District Court.”

Sixth Circuit Judge Raymond M. Kethledge, discussing criminal contempt charges against Herbert S. Moncier, a Tennessee defense attorney who disobeyed U.S. District Court Judge J. Ronnie Greer’s order to remain silent.

Moncier claimed he had an ethical duty to prevent Greer from questioning his client about a possible conflict of interest arising from his dual representation of two defendants.

Be that as it may, Kethledge wrote that:

“The lawyer’s duty is not to defy the judge’s orders, but to follow them. It is true enough that judges, like other humans, will make mistakes, and that those mistakes will sometimes be to the detriment of a client’s rights. But that is what Circuit Courts exist to remedy. ‘Lawyers are required to obey even incorrect orders; the remedy is on appeal.’ … We entirely agree with Judge Greer that ‘someone must be in control of what happens in a courtroom[,]’ and that the someone is ‘the trial judge, not the lawyer for a criminal defendant … .'”

Greer found Moncier guilty of two charges of criminal contempt but Moncier will get a second bite of the apple.

Under Federal R. Crim. P. 42(a)(3), Moncier’s behavior involved “disrespect toward or criticism of a judge.” The rule provides that in such cases, the judge can’t hear the case.

According to Kethledge:

“Judge Greer’s finding that Mr. Moncier’s conduct was not disrespectful towards him personally, in a manner requiring disqualification, can be attributed less to an error of judgment, than to an excess of magnanimity. We take a less forgiving view of Mr. Moncier’s conduct; and we conclude that, fairly considered, it did involve disrespect towards Judge Greer within the meaning of the rule, with the ironic consequence that he gets a new trial.”

That new trial, wrote Kethledge, will be before a different judge.

The case is United States v. Moncier.