Should Plea Bargaining Toll the “Speedy Trial Clock?”

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John Simon, Associate Member, University of Cincinnati Law Review

Introduction

In 1970, the Supreme Court of the United States upheld the constitutionality of plea bargaining by finding it to be “inherent in the criminal law and its administration.”[1] Plea bargaining constitutes the negotiation between the prosecutor and the accused whereby the parties attempt to finalize an agreement culminating in the accused’s guilty plea in exchange for a lesser charge or sentence.[2] If the plea-bargaining process fails to yield such a result then the case proceeds through the criminal process to trial. Plea bargaining has increased in popularity for several reasons: (1) the unpredictable risks associated with proceeding to trial; (2) the lack of necessary resources to take all cases to trial; and (3) greater case load.[3] In 2017, approximately ninety-seven percent of federal cases ended with a guilty plea prior to trial.[4]

With the increased role of plea bargaining, procedural issues have surfaced in cases involving the parties’ failure to reach a deal. A split has developed among several circuit courts regarding the application of the Speedy Trial Act in the plea-bargaining context. Specifically, the disagreement concerns whether the time spent negotiating a failed plea constitutes a period that tolls the statutorily established speedy trial clock. The Eleventh Circuit maintains that plea bargaining may qualify as an excludable period, but the decision is discretionary, not automatic.[5] Alternatively, the Fourth, Sixth, Seventh, and Eighth Circuits hold that plea bargaining automatically qualifies, under the Speedy Trial Act, as an excludable period.[6] Based upon the legislative intent of the Speedy Trial Act, courts should follow the lead of the Ninth Circuit when applying the Speedy Trial Act to plea bargaining.

History of the Speedy Trial Act

The Constitution enshrines an accused’s speedy trial right in the Sixth Amendment: “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”[7] Historically, the speedy trial right finds its origins in English law.[8] In the Institutes, which translated and explained Magna Carta, Sir Edward Coke wrote:

And therefore, every subject of this realme, for injury done to him in bonis terris, vel persona, by any other subject, be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.[9]

Essentially, no person will be denied justice, and justice includes the right to a speedy trial. The Founding Fathers found inspiration in both Coke’s writing as well as the ideas expressed in the Magna Carta. Several colonies, in their respective constitutions, incorporated the speedy trial right. Thus, unsurprisingly the drafters of the United States Constitution saw the speedy trial as fundamental to the nation.[10]

While the speedy trial right has its constitutional foundation, the Sixth Amendment’s language provides minimal guidance to the legal community. By the time federal legislators introduced the Speedy Trial Act in the late 1960s, all fifty states already maintained speedy trial legislation motivated primarily by a desire to clarify the rights of the accused.[11] In the late 1960s, with national concern growing regarding the rise in crime rates, the motivation for speedy trial legislation took on a new meaning: protecting societal interests by bringing criminals to prompt justice.[12]

In 1967, the ABA’s Advisory Committee on the Criminal Trial, which oversaw the Project on the Minimum Standards of Criminal Justice, developed the Standards Relating to Speedy Trial.[13] In its tentative draft, the Committee recommended the following standards which were included in the Speedy Trial Act of 1974: (1) time limits that start to run from a specified event; (2) the exclusion of periods of necessary delay; (3) a requirement that any continuances be granted upon a showing of good cause; and (4) the sanction of dismissal with prejudice for any violation of an accused’s speedy trial rights.[14]

In 1970, the first draft of the Speedy Trial Act was introduced to the Senate Judiciary Committee’s Subcommittee on Constitutional Rights.[15] The following year, with minimal revisions, the bill was presented to the entire Senate. At that point, the bill incorporated both the broad protections afforded to society through the efficient administration of justice, as well as the constitutional protections given to defendants.[16] In 1974, the bill finally passed the Senate and moved to the House. While the House added amendments, the bill ultimately passed and re-passed the Senate.[17] Responding to the bill’s passage, Senator Sam Ervin, the primary force behind the passage of the bill, stated: “The bill is based upon the premise that the courts, undermanned, starved for funds, and utilizing 18th century management techniques, simply cannot cope with burgeoning caseloads. The consequence is delay and plea bargaining. The solution is to create initiative within the system to utilize modern management techniques and to provide additional resources to the courts where careful planning so indicates.”[18]

The Speedy Trial Act, in its current form, holds that “[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.”[19] The Act further notes that “[a]ny period of delay resulting from other proceedings concerning the defendant” shall be considered excludable from the speedy trial clock’s thirty-day mandate.[20] A non-exhaustive list of eight delays are provided. However, the Act further clarifies that a continuance may be excludable only if the judge “sets forth, in the record of the case, either orally or in writing, [his or her] reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.”[21]

The Eleventh Circuit

The Eleventh Circuit holds that any delays caused by the plea-bargaining process require the court to grant a continuance and make the necessary findings, on the record, that the continuance serves the ends of justice.

In the case of United States v. Mathurin, the Eleventh Circuit aligned its reading of the Speedy Trial Act in the context of plea bargaining with the Second, Fifth, and Ninth Circuits. In that case, Mathurin was taken into federal custody for a string of robberies and taken before a magistrate for an initial appearance in the late spring of 2009.[22] By the summer of that same year, formal plea negotiations had commenced.[23] The parties stipulated that during this period of time, certain events delayed the speedy trial clock—including court orders permitting Mathurin to be prosecuted as an adult and permitting Mathurin to be housed with adult inmates.[24]

According to Mathurin, bilateral negotiations continued until November 2009 when Mathurin told the prosecutor to “go ahead and indict him.”[25] The government, however, contended that negotiations continued until December because Mathurin’s attorney requested that he be given the opportunity to discuss the plea offer with Mathurin.[26] The following spring, Mathurin moved to dismiss all charges pending against him based upon a speedy trial violation.[27] His motion was denied; Mathurin was found guilty of the charges against him.[28]

While Mathurin appealed several issues, the Eleventh Circuit only considered the claim under the Speedy Trial Act. The court noted, first, that § 3161(h)(1)(G) of the Speedy Trial Act automatically excludes only delays resulting from a court’s consideration of a plea agreement presented by the defendant’s attorney and the government’s attorney.[29] In Mathurin’s case, because the parties had only negotiated a plea agreement, but never presented an agreement to the District Court.[30] Plea negotiations may toll the speedy trial clock, though, only if the presiding court makes the necessary findings that “‘the ends of justice served by taking such [a delay] outweigh the best interest of the public and the defendant in a speedy trial.’”[31]

Looking at the Speedy Trial Act’s structure and purpose, it would be improper for the government and defense attorney to toll the speedy trial clock indefinitely for plea negotiations without the approval of the court.[32] Notably, the excludable periods all occur at the direction of the presiding court. Further, the Supreme Court held that the Speedy Trial Act’s purpose is “‘not only to protect defendants, but also to vindicate the public interest in the swift administration of justice.’”[33] Thus, any reading that would consider plea negotiations to be automatically excludable does not comport with the structure and purpose of the Speedy Trial Act.

The Sixth Circuit

The Sixth Circuit held that any delays stemming from plea negotiations are automatically excluded from the speedy trial clock. Plea negotiations, according to these circuits, fall under the “resulting from other proceedings concerning the defendant” exclusion under the Speedy Trial Act.

In 2017, the Sixth Circuit addressed the procedural issue in the case United States v. White. In that case, the Michigan DEA executed a warrant on May 14, 2010 at White’s residence and discovered ecstasy, other drugs, as well as firearms.[34] White was taken into custody but not immediately charged because of his promise to cooperate with the DEA.[35] Finally, in April 2013, the Michigan government officially filed a complaint against White charging him with drug distribution and firearm crimes.[36] In May, the government and White entered into plea negotiations and filed a stipulation with the district court which would exclude a two-week period of time for the plea negotiations.[37] Plea negotiations failed and a grand jury indicted White in June.[38] White’s motion for dismissal based upon speedy trial violations was denied and a jury found him guilty following a three-day trial.[39]

The Sixth Circuit upheld the District Court’s ruling based upon the notion that “plea negotiations are ‘period[s] of delay resulting from other proceedings concerning the defendant’ automatically excludable under § 3161(h)(1).”[40] While the plea-bargaining process does not appear explicitly in the eight enumerated categories of excludable periods, the listed periods constitute examples of excludable periods, and the list is not exhaustive.[41] White’s contention that the magistrate failed to make the necessary findings for an ends-of-justice continuance is invalid because plea bargaining falls into the automatically excludable section of the Speedy Trial Act.[42] Therefore, the stipulated plea bargaining between the government and White did not count toward the speedy trial clock and no speedy trial violation occurred.

White appealed to the United States Supreme Court, which granted certiorari.[43] However, upon learning that the Attorney General made errors in his brief to the Court, the case was remanded to the Sixth Circuit for additional proceedings.[44] The Sixth Circuit has yet to issue a new ruling in the case.

Recommendation

Based upon the legislative intent of the Speedy Trial Act, courts in the future should follow the direction of the Eleventh Circuit when applying the Speedy Trial Act to plea bargaining, which holds that plea bargaining does not automatically toll the speedy trial clock.

First, the legislative history shows that the Speedy Trial Act’s was intended to place time restrictions on the criminal process so that the process could not be drawn out. As Senator Ervin stated: “The bill is based upon the premise that the courts, undermanned, starved for funds, and utilizing 18th century management techniques, simply cannot cope with burgeoning caseloads. The consequence is delay and plea bargaining.”[45] Thus, proponents of the Act intended to provide benefits both to society, by preventing significant delays in the criminal process, as well as the defendant, by reducing the reliance on plea bargaining.

The Senate Judiciary Committee provided further reasoning behind the Act’s specific provisions. Regarding the list of excludable periods, the Committee noted: “This provision, when considered with all the enumerated exclusions from the time limits contained in 3161(h), assures that the time limits do not fall too harshly upon either the defendant or the Government.”[46] Clearly, the intention was to strike a just balance between the prosecutor and defendant so that neither would be unfairly impacted by trial delays. Considering that plea bargaining remains unnamed within the enumerated excludable periods, the Committee addressed its viewpoint on the matter:

If Federal prosecutorial policies are changing in emphasis to reserve for trial more serious offenders, it is obviously not in the public interest to permit those who have engaged in less serious, but nonetheless proscribed, criminal conduct to “take under advisement” a negotiated plea agreement and then move for dismissal once the time to trial has expired. To the same degree public confidence in equal justice would be eroded from the incarceration of an innocent person forced to plead guilty, due to an inability to prepare his or her defense on time. Either would surely constitute a “miscarriage of justice,” and, as the Second Circuit makes plain, no such result was intended. As a general matter the committee is reluctant to automatically exclude plea bargaining per se because the difficulty of measuring the beginning on a bonafide bargaining [sic] but prefers the case-by-case approach of second circuit under existing language.[47]

The Committee adopted the viewpoint of the Second Circuit—the same that has also been adopted by the Eleventh Circuit and others—noting that the Second Circuit’s case-by-case approach prevents miscarriages of justice through improper conduct from either the defendant or the prosecutor.

Rather than force a proceeding into one of the enumerated excludable periods, the Senate Judiciary Committee noted the significance and flexibility of the “ends of justice” provision of the Speedy Trial Act. According to the Committee, analysis showed judicial hostility toward the “ends of justice” provision of the Speedy Trial Act.[48] A study conducted by the Government Administrative Office showed that approximately sixteen percent of incidents of delay were the result of “ends of justice” continuances.[49] The Committee noted: “Neither hostility toward the Act nor fear of the consequences is a justifiable basis for interpretation which is so strict as to deny the spirit of it as well as its letter in application.”[50]

Conclusion

Congress, in 1974, passed the Speedy Trial Act with the intent of clarifying the accused’s constitutional rights and protecting society through prompt justice. While the Act provides guidelines for members of the legal community to follow, gaps exist in the Act. One such gap involves the application of the Act’s provisions to plea bargaining with some circuits maintaining that plea bargaining does not automatically toll the speedy trial clock and others holding the reverse.

To ensure that the intentions for passing the Speedy Trial Act are protected, courts should follow the lead of the Eleventh Circuit which holds that plea bargaining does not automatically toll the speedy trial clock.

[1] Brady v. U.S., 397 U.S. 742, 751 (1970).

[2] Lindsey Devers, Plea and Charge Bargaining, Bureau of Justice Assistance (Jan. 24, 2011), https://www.bja.gov/publications/pleabargainingresearchsummary.pdf

[3] Id.

[4] Dylan Walsh, Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, The Atlantic (May 2, 2017), https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-prosecutors/524112/

[5] The Second and Ninth Circuits share a similar standard. See, e.g. U.S. v. Lucky, 569 F.3d 101 (2d Cir. 2009) (holding that “plea negotiations do not fit comfortably into the ‘other proceedings’ language of section 3161(h)(1)”); U.S. v. Alvarez-Perez, 629 F.3d 1053 (9th Cir. 2010) (holding that, generally, time spent plea negotiating is not automatically excludable).

[6] The Fourth and Seventh Circuits share a similar standard. See e.g., U.S. v. Leftenant, 341 F.3d 338, 345 (4th Cir. 2003) (holding that plea negotiations entered into for other charges constituted “other proceedings” that qualified for automatic exclusion); U.S. v. Montoya, 827 F.2d 143, 150 (7th Cir. 1987) (noting that the plea bargaining process can qualify as “other proceedings” that qualify for automatic exclusion)

[7] U.S. Const. amend. VI

[8] Klopfer v. State of N.C., 386 U.S. 213, 223 (U.S. 1967).

[9] Id. at 224 (citing Coke, The Second Part of the Institutes of the Laws of England 45 (Brooke, 5th ed., 1797)).

[10] Id. at 225.

[11] Anthony Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, Federal Judicial Center (Aug. 1980), https://www.fjc.gov/sites/default/files/2012/LHistSTA.pdf (pg. 11)

[12] Id.

[13] Id.

[14] Id. at 11-12.

[15] Id. at 13.

[16] Id. at 14.

[17] Id. at 15-16.

[18] Id. at 16.

[19] Speedy Trial Act of 1974, 18 U.S. Code § 3161

[20] Id.

[21] Id.

[22] U.S. v. Mathurin, 690 F.3d 1236, 1237-38 (11th Cir. 2012)

[23] Id. at 1238.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at 1238-1239.

[28] Id. at 1239.

[29] Id. at 1241.

[30] Id.

[31] Id. at 1241-1242.

[32] Id. at 1242.

[33] Id. (citing Bloate v. U.S., 559 U.S. 196, 211 (2010)).

[34] U.S. v. White, 679 Fed. Appx. 426, 428 (6th Cir. 2017)(unpublished), cert. granted, judgment vacated, 138 S. Ct. 641 (2018).

[35] Id. at 429.

[36] Id.

[37] Id.

[38] Id.

[39] Id. at 430.

[40] Id. at 431 (citing to United States v. Dunbar, 357 F.3d 582, 593 (6th Cir. 2004)).

[41] Id. (citing United States v. Bowers, 834 F.2d 607, 609–10 (6th Cir. 1987) (per curiam)).

[42] Id.

[43] Supreme Court Avoids Resolving Circuit Split on Speedy Trial Act By Issuing GVR Following Government Confession of Error, fd.org (Jan. 10, 2018), https://www.fd.org/news/supreme-court-avoids-resolving-circuit-split-speedy-trial-act-issuing-gvr-following-government

[44] Id.

[45] Partridge, supra note, 8.

[46] Id. at 104

[47] Id. at 112

[48] Id. at 179.

[49] Id. at 178.

[50] Id. at 179.