“SPEEDY TRIAL” = QUICK CONVICTION
by John J. Bradley
IS A “SPEEDY TRIAL” CONSTITUTIONALLY GUARANTEED? The Sixth Amendment to the U.S. Constitution says: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…” These guarantees ”are the most basic rights preserved by our Constitution;” fundamental liberties embodied in the Bill of Rights. The due process clause of the Fourteenth Amendment makes them applicable to all States.
WHAT IS A “SPEEDY TRIAL”? Most jurisdictions in the U.S. have defined “speedy trial” to be within 75 days of the person’s arrest. This Constitutional guarantee is for the protection of both the defendant and society, since persons in jail must be supported at considerable public expense and if a guilty person is mistakenly released they may commit other crimes.
HOW CAN “SPEEDY TRIAL” WORK AGAINST A DEFENDANT? In most cases, preparation for trial takes much more than two or three months. Defendants are not presumed innocent. They must prove to a jury that there is “reasonable doubt” of guilt. Prosecutors “hold all the cards.” Contrary to common belief, courts are not the forum to “see that justice is done,” but more a machine to convict. Prosecutors are heavily favored in rulings; most judges are former prosecutors and their role is not of neutral referee, but more to adjudicate and interpret law in a dispute over guilt versus innocence between prosecutor and defendant. Therefore, the defendant must be prepared to show a judge and/or jury why he should be acquitted of a crime that the government has expended months, often years, massive resources and vast amounts of money investigating and formulating a case geared to convict, not necessarily expose the truth.
INNOCENCE IS IRRELEVANT – RESOURCES ARE THE KEY: In fact, an innocent person has a more difficult time building a defense against what is unknown. Moreover, in the overwhelming percentage of cases, defendants cannot afford to spend as much money and/or time on building a defense as the government does building its case against him. Two or three months is not even enough time for an attorney to become familiar with the facts, allegations and charges in serious cases, let alone build a defense. This is especially true when evidence is weak and suspicion of innocence is strong, for this is when law enforcement and prosecutors, desperate to win, “fudge” on evidence, making defense against false, exaggerated or manufactured evidence extremely difficult. The prosecution is much more prepared to convict a few months following arrest than the defense is to acquit. Prosecutors view every case as a battle to win; conviction the goal and the only acceptable outcome of a trial. They believe that their purpose is to convict, not to judge guilt or innocence; that, they preach, is the province of the court.
JUSTICE RELIES ON THE HONESTY OF THOSE ADMINISTERING IT: For the reasons above, a “speedy trial” heavily tilts the playing field of the trial toward the prosecutor. Though it would seem “a day in court” is the best way to convict the guilty or exonerate the innocent, this relies, like all facets of the judicial system, on the honesty of those administering it. Although prosecutors are sworn to “…see that Justice is done,” they are paid, promoted and their reputation/career depends on a conviction record. Prosecutors must convict, not acquit. Therefore, an ideology of conviction now drives the majority of prosecutors in the United States today.
HOW DOES THIS PROSECUTOR “MANDATE TO CONVICT” DELAY TRIALS?
Conviction is not achieved by simply presenting evidence and letting a jury decide. Prosecutors with high conviction records:
A. DELAY DEFENSE DISCOVERY: In most trials, discovery is a legal, mutual, obligation. Prosecutors must give the defense the documents and other evidence related to the charges against the defendant, and the defense attorney must give the prosecutor documents and evidence, though to a lesser degree, related to the defense of those charges. Prosecutors with high conviction records routinely delay delivery of discovery to the defense as long as possible since no defense attorney will schedule a trial until the full scope of the evidence against the defendant is fully assessed. Defense attorneys must be exceptionally tenacious to get discovery from the prosecution and, often, a court order is required. The judges admonish prosecutors to abide by the law but rarely censure or punish them for not obeying it.
B. ORCHESTRATE A DISCOVERY “PAPER DUMP” ON THE DEFENSE: When they finally do accede to ardent requests by the defense, many prosecutors perform a “paper dump,” consisting of sometimes hundreds of thousands of documents. Simply put, the prosecutor delivers much more discovery than is necessary to the defense, often comprised of meaningless “fluff.” Spread throughout this blizzard of documents are relevant documents. Only legal professionals can adequately review and assess these materials, at great cost in defense time and money. Private attorneys/paralegals must charge from $30 to $400+ per hour and delay any court hearings and trial until all discovery is reviewed.
This needless, malicious activity, generated by the prosecutor, causes the defense to more rapidly deplete its resources before trial, which is one of the prosecutors’ main objectives in doing it.
C. WITHHOLD EXCULPATORY (favorable) EVIDENCE FROM DISCOVERY: Although the law requires it, to give the defense benefit of law enforcement/prosecution’s extensive investigation could easily result in an inadvertent acquittal. The law specifically requires that prosecutors share with the defense any exculpatory (favorable to the defendant) evidence in their possession or of which they have knowledge. However, prosecutors will withhold, as long as possible, known exculpatory evidence, especially if it would tend to exonerate the defendant, until forced by the defense to do so. Moreover, if the defense is unaware of exculpatory evidence, very often this evidence is also withheld, or, in many cases, never shared, to avoid the possibility of the prosecutor losing the case.
D. WITHHOLD INCULPATORY (unfavorable) EVIDENCE FROM DISCOVERY: The prosecutor would prefer not giving the defense any opportunity to defend against key evidence and risk losing the case at trial. Therefore, the evidence supporting key elements in the prosecution case is withheld, altered or only portions are turned over. This limits defense ability to investigate and/or develop a defense. Judges will usually only admonish the prosecuting attorneys, not sanction or punish, if these delays and/or withholding are brought up by the defense.
Rules vary but the only prosecution obligation is to give up discovery 15 to 30 days before trial. Therefore, on key evidence, the very evidence the defense needs to see earliest, the most important to defend against, is held by many prosecutors to as close to the trial date as possible in order to avert acquittal.
E. TAKE ADVANTAGE OF THE “MOTIONS CONUNDRUM:” In a serious felony prosecution, to ensure the defendant receives a fair trial, the defense must “set the record” by filing a series of motions pertaining to defense allegations, so that the court rules on them prior to trial. The conundrum is that filing these motions will substantially delay the beginning of the trial, yet, not filing the motions can prohibit the defense from bringing up those allegations at trial or appealing a conviction based upon them. This process takes, literally, years and, although it is a common and necessary procedure leading up to trial, prosecutors will always point to such delays as “defense generated,” implying the defendant is delaying going to trial, ostensibly because of his guilt.
F. EXERCISE THE “LAW OF THE JUMBLE:” In complex cases where many documents, sometimes in the hundreds of thousands, are involved, prosecutors and/or law enforcement can and do return confiscated documents to the defendants out of order, sometimes hopelessly jumbled, so that the defendant and/or his defense team, at considerable cost, have to unscramble them before they are usable. Prosecutors deny this ever goes on since it is impossible for the defense to prove that the documents were not returned in the same order received. This effectively impedes the defense, often resulting in defense requests to delay trial.
G. MYSTERIOUSLY “FIND” DISCOVERY CLOSE TO TRIAL: Often, prosecutors announce that “new” discovery has mysteriously appeared, close to trial. Usually, it is not “new” at all, but items simply withheld for this purpose, to delay the proceedings until the defense can review and assess it. The court usually accepts the prosecutors’ explanation that the evidence was just “found” and will grant a delay to the defense to review this discovery. Again, it is a defense requested delay, generated by the prosecution.
To answer questions as to why this defendant did not receive a “speedy trial,” the prosecutor points to numerous delays by the defense, omitting that it was prosecution activities that necessitated the defense to requests for the delays.
H. PRODUCE EXCESSIVE WITNESS LIST: The prosecution is not obligated to produce a witness list until 60 days before trial. Often, prosecutors will identify as “potential” witnesses, many more than they intend to call; for example, 150 potential witnesses, even if they only plan to use 30 of them. To effectively defend against what these witnesses may testify to, the defense needs to try to interview all of them, since the prosecution is not obligated to advise the defense, in advance, what subject the witness may testify to or if they will testify at all. This serves to further deplete defense resources and, again, often necessitates a defense request for a trial delay by the defense but generated by prosecution activities.
Additionally, prosecutors have other “tools” not available to defendants and not limited to those listed above or below:
NO VERIFICATION OF WHAT “AUTHORITIES” RELEASE TO MEDIA: Since it is assumed that law enforcement would not arrest someone who they “presume innocent,” and prosecutors would not conduct a trial without enough evidence to convict, once it is determined that a trial will be held, the defendant is viewed as guilty by the media and, consequently, the public. The prosecutor capitalizes on this by releasing only inculpatory (inferring guilt) evidence, sometimes false, to the media. The media has no way to verify any of this evidence since it is the “authorities” who are releasing it to them.
MEDIA RARELY USES DEFENSE ALLEGATIONS, EVEN WHEN DOCUMENTED: Although the defense may attempt to refute erroneous allegations made to the media by prosecution officials, this is usually unsuccessful, since the media rarely uses, even documented, defense counters to what authorities’ statements. In this way, the prosecutors are in control, indirectly, over what the media uses. This is another reason why prosecutors seek to prolong the time it takes to get to trial. Over time, this adverse media tends to “poison the jury pool” and sway the public in favor of the defendant’s guilt/conviction. The higher the profile of the case, the more publicity and the better it is for prosecutors.
“SPEEDY TRIAL” IS NOT BENEFICIAL TO DEFENDANTS: The idea of a “Speedy Trial” being of benefit to anyone is erroneous. Prolonging the time between arrest and trial is good for the defendant in order for him to prepare an appropriate defense in the face of the most formidable and overwhelming resources of prosecutors. A “Speedy Trial” is usually almost certain conviction. The prosecutors would benefit most from a “Speedy Trial,” but prefer to bankrupt the defendant so as defense falters, a plea bargain can be offered, even if the defendant is viewed as possibly innocent. 85% of “convictions in the U.S. today are not really convictions at all, but plea bargains that prosecutors list as confessions leading to conviction. In fact, the punishment for many crimes is less than the time it takes to get to trial. So, if a defendant cannot raise bail, he may serve less time in jail by pleading guilty in a plea bargain arrangement than if he went to trial and was acquitted.
The system of justice in America is badly in need of repair. The founding fathers could never have envisioned that, by constitutionally guaranteeing a “right” to a “Speedy Trial” so that the guilty would be convicted and innocent quickly released from jail, conviction was virtually guaranteed, regardless of innocence.