COVID-19 and The Speedy Act WHAT TO FIGHT FOR AND WHEN TO FIGHT FOR IT 2 Annoucements

 Only as good as the information we get from you  Please keep the news regarding pretrial release, compassionate release, sentencings that take COVID-19 into account coming  Amazing folks like Deirdre von Dornum, Sarah Baumgartel, Mia Eisner- Grynberg, Rheem Brooks, Rachel Bass, Joey Dean, are compiling results and charts and string sites (and lawsuits!). So keep the info coming!  Today’s topic is a new frontier and not all decisions are reported, so we need your help compiling the cases.

5/18/2020 3 Announcements

 Streamlining CLE process:  All materials posted here: https://federaldefendersny.org/cja-resources.html  Including your attorney affirmation  Form is fillable…download once and save yourself the trouble next time  New email address: [email protected]

5/18/2020

5 COVID-19 and the Speedy Trial Act

 Where we are? Orders  Preliminary Hearings   The Basic Law – 18 U.S.C. 3161 and arguments for and against adjournments  Rule of Professional Conduct 1.2  Remedies for Speedy Trial Issues  Remote Proceeding Considerations

5/18/2020 6 Where are we now?

 More accurately, where do our say we are?

5/18/2020 7 Where are we now? EDNY

 Administrative Order 2020-15

 2. All civil and criminal petit jury selections and jury trials scheduled to commence between April 27, 2020 and June 15, 2020, and all grand jury selections scheduled before June 15, 2020, are continued pending further Order of the Court.  3. Compliance with all trial-specific deadlines in civil and criminal cases shall be at the discretion of the assigned judges.

5/18/2020 8 Where are we now? EDNY

 Administrative Order 2020-15  4. Individual judges may take such actions consistent with this Order as may be lawful and appropriate to ensure the fairness of the proceedings and preserve the rights of the parties.  Judges are strongly encouraged to conduct court proceedings by telephone or video conference where practicable, including pursuant the CARES Act as set forth in Administrative Order 2020-13, and to adjourn matters or deadlines, or stay litigation, where in-person meetings, interviews, depositions,or travel would be necessary to prepare for any such proceedings. No in-person bench trials or evidentiary hearings may be scheduled without consultation with the Chief Judge.

5/18/2020 9 Where are we now? EDNY

 Administrative Order 2020-15  5. The Court is cognizant of the right of criminal defendants to a speedy and public trial under the Sixth Amendment, and the particular application of that right in cases involving defendants who are detained pending trial. Any by a criminal defendant seeking an exception to this order in order to exercise that right should be directed to the District Judge assigned to the matter in the first instance; provided, however, that no such exception may be ordered without consultation with the Chief Judge.

5/18/2020 10 Where are we now? EDNY

 Administrative Order 2020-15  the time period from April 27, 2020 to June 15, 2020 is hereby excluded under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., for all trials and other conferences and proceedings in criminal cases, as the Court finds that the ends of justice served by such continuances to protect public health and safety outweigh the best interests of the public and the defendant in a speedy trial pursuant to 18 U.S.C. § 316l(h)(7)(A).

5/18/2020 11 Where are we now? EDNY

 Administrative Order 2020-15  These same concerns, as well as the unavailability of a grand jury sitting in this District arising from the inability to muster a quorum prior to May 15, 2020, and the suspension of the selection of new grand jurors, make it "umeasonable to expect return and filing of [an] indictment within the period specified in section 3161 (b )." 18 U.S.C. § 3161 (h)(7)(B)(iii). As such, the 30-day time period for filing an indictment under 18 U.S.C. § 316l(b), which previously had been tolled through April 27, 2020 by Administrative Order 2020-06, is further tolled until May 15, 2020. See also 18 U.S.C. § 3161(h)(7)(A).

5/18/2020 12 Where are we now? EDNY

 Administrative Order 2020-15  Due to the ongoing exigent circumstances created by the COVID-19 pandemic as outlined herein, in all criminal matters in which a magistrate judge must conduct a preliminary hearing pursuant to Federal Rule of 5. 1 on or between April 27, 2020 and June 15, 2020, the time for such hearing set forth in Rule 5.l(c) is further extended to no later than 60 days after the initial appearance of the defendant.

5/18/2020 13 Where are we now? SDNY

 Order 20 MC 197  All persons working in the jury unit have been ordered to remain home until governor lifts travel ban and workplace can be made safe  It requires a minimum of four weeks to call together a venire panel  It’s prudent to assume it will require more time because there will be a higher than normal demand for jurors  It’s possible that the calling of a new Grand Jury will have to take precedence over any call for petit jurors  Due to constant changes, judges and parties are having trouble scheduling jury trials, both civil and criminal

5/18/2020 14 Where are we now? SDNY

 Order 20 MC 197  IT IS HEREBY ORDERED, that the conduct of in this district be and hereby is suspended until further order of the court.

5/18/2020 15 Where are we now? SDNY

 Order 20 MC 197  IT IS HEREBY ORDERED, that the conduct of jury trial in this district be and hereby is suspended until further order of the court.

5/18/2020 16 Where are we now? SDNY

 Order 20 MC 196

5/18/2020 17 Where are we now? SDNY

 Order 20 MC 196

5/18/2020 18 Where are we now?

 So where are we now?  Grand juries and jury trial suspended at until June 15 or further order of the court  Speedy trial time excluded in the interest of justice until at least June 15, but maybe longer  Preliminary hearing deadlines extended through May 15 (EDNY) (and are not specifically mentioned in most recent SDNY order)

5/18/2020 19 Can this be?

 Can the Chief Judge waive Speedy Trial time in all cases for the same reasons?  Does it pass the mom test?  Where can you push back?  And even where you can’t speed up the trial, what accommodations can you demand?

5/18/2020 20 Preliminary Hearing Dates

 Can the preliminary hearing date be waived/adjourned without your client’s consent?  Let’s start with the law  18 U.S.C. 3161(b):  Time period for preliminary hearing shall be extended for 30 days if a grand jury was not in session in the district during the original 30-day period.  18 U.S.C. 3161(h)(7)(A)  Time period can be extended if the court makes a finding that the ends of justice served by the continuance outweigh the best interests of the public and the defendant in a speedy trial. But there has to be a finding.  Why is your case different?  United States v. Elms, 20-mj-0036 (CLB) (D. Nev.)

5/18/2020 21 Preliminary Hearing Dates

 US v. Ebanks, 20-mj-204 (RML) (EDNY) – tenacious lawyering by Mildred Whalen  Fed.R.Crim.P. 48(b)(1) permits dismissal of a complaint by the Court if unnecessary delay occurs in presenting a charge to the grand jury. This provision not only allows the Court to dismiss on constitutional grounds, but also permits the Court to dismiss where the delay is not of a constitutional magnitude. This rule operates independently of the Speedy Trial Act and is broader in compass. United States v. Goodson, 204 F.3d 508, 513 (4th Cir. 2000); United States v. Balochi, 527 F.2d 562, 563-64 (4th Cir. 1976)(per curiam).

5/18/2020 22 Preliminary Hearing Dates

 If you want one:  Highlight pre-shutdown and pre-arrest delay  For example, if your client was in state or immigration custody after Feds decided to charge the case, that’s on them  At least one EDNY grand jury returned indictments after March 13, so why couldn’t they in your case?  Other jurisdictions are doing them

5/18/2020 23 Preliminary Hearing Dates

 Jurisdictions conducting remote preliminary hearings:  N.D. Ga.  M.D. Tn.  NYC  CA state courts  Hampton, VA state court  Certain Texas state courts  New Orleans state court  Denver, CO state court  Chicago (Cook County), IL state court

5/18/2020 24 Preliminary Hearing Dates

 If you don’t want one:  General issues with remote proceedings (e.g., witness credibility)  Can’t consult with client re: exhibits or cross examination  Interpreters

5/18/2020 25 Preliminary Hearing Dates

 Don’t give up something for nothing  Will the AUSA consent to your client’s release if you waive?  Will the AUSA provide early discovery?  Can you get a plea offer to an information charging a lesser included offense?

5/18/2020 26 Trials

 Can Speedy Trial time be excluded across the board?  Cases must be tried within 70 days, subject to exclusions  18 U.S.C. 3161(h)(7)(A)  Time excluded because the ends of justice served by excluding time outweigh the best interests of the parties and the public in a speedy trial  Balancing test: what is necessary in your case  18 U.S.C. 3161(h)(7)(B) factors: unreasonable to expect adequate preparation within time limits? Would failure to deny continuance deny the defendant reasonable time to obtain counsel or the reasonable time necessary for effective preparation?  Is there something short of the blanket adjournment/exclusion that can safeguard your client’s 6th Amendment rights?

5/18/2020 27 Trials

 And at the end of the day, dismissal can be with or without prejudice  Pay attention to Statutes of Limitations  If it’s a new incident, not as important, but if you’re nearing the end of the SOL, you may really want to push for Speedy Trial dismissal

5/18/2020 28 Speedy Trial: Remedies?

 Again, don’t give away something for nothing. Fight for a remedy, especially if your client is sitting in jail.  Release? 6th Amendment is a compelling reason temporary release  The Sixth Amendment right to counsel is the cornerstone of our adversarial system of criminal justice. “The right to consult with legal counsel about being released on bond, entering a plea, negotiating and accepting a plea agreement, going to trial, testifying at trial, locating trial witnesses, and other decisions confronting the detained , whose innocence is presumed, is a right inextricably linked to the legitimacy of our criminal justice system.” Federal Defenders of New York, Inc. v. Bureau of Prisons, Docket No. 19-1778 (2d. Cir. Mar. 20, 2020).

5/18/2020 29 Speedy Trial: Remedies?

 Release!  A detention facility therefore violates the Sixth Amendment when it “unreasonabl[y] interfere[s] with the accused person’s ability to consult counsel.” Benjamin v. Fraser, 264 F.3d 175, 185 (2d Cir. 2001).  Can’t just wait and make up the time later. (The Court is also unconvinced by the Government’s argument that, because Chandler’s trial is likely to be further delayed due to COVID-19, time preparing for his defense can simply be made up later.) US v. Chandler, 19 Cr. 867 (PAC) (SDNY)  Gov’t’s first wave of arguments was that release is not appropriate where there’s not a firm trial date. As time passes, this argument is flipped on its head: the combination of the Speedy Trial Act and the Sixth Amendment require release.

5/18/2020 30 Speedy Trial: Remedies?

 Bench trial (even over government objection)  “[S]ince trial by jury confers burdens as well as benefits, an accused should be permitted to forego its privileges when his competent judgment counsels him that his interests are safer in the keeping of the judge than of the jury.” Adams v. United States, 317 U.S. 269, 278 (1943); see United States v. Moon, 718 F.2d 1210, 1217 (2d Cir. 1983) (“The right to trial by jury is a benefit granted the accused, which a defendant has the power to waive.”).

5/18/2020 31 Speedy Trial: Remedies?

 Bench Trial (even over government objection)  Federal Rule of Criminal Procedure 23(a) provides that a trial may proceed before a judge instead of a jury if “(1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves.” In Singer v. United States, 380 U.S. 24 (1965), the Supreme Court upheld the constitutionality of Rule 23(a), finding “no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is imply that the defendant is subject to an impartial trial by jury – the very thing that the Constitution guarantees him.” Id. at 36.

5/18/2020 32 Speedy Trial: Remedies?

 Bench Trial (even over government objection)  As the Second Circuit has read Singer, “[o]rdinarily, insisting that a defendant undergo a jury trial against his will does not run afoul of a defendant’s right to due process and a fair trial. Certainly, we recognize, though, that there might be cases where the circumstances are so compelling that for the court to countenance the government’s insistence on a jury trial over the defendant’s request to be tried by a judge alone would deny the defendant a fair trial.” United States v. Moon, 718 F.2d at 1218 (citing Singer, 380 U.S. at 37).

5/18/2020 33 Speedy Trial: Remedies?

 Jail conditions to review discovery  Obviously especially difficult in a case with a lot of discovery  Used to get Court to order extra law library time  What can you ask for now? A laptop? Extra phone or video conferencing?

5/18/2020 34 Speedy Trial: Remedies?

 Bill of particulars/exhibit list/hot docs or early 3500?  It’s one thing to exclude time, but it can’t all be idle time.  Ask the Court to order the Government to make it easier to review discovery with your client so that you can be ready for trial as soon as the court can hold it, not so you can begin to prepare when things open up.  Lift or modify protective order (and a word about protective orders…)

5/18/2020 35 Speedy Trial: Remedies?

 Protective Orders  Lift or modify protective order so you can send the discovery to your client  (and a word about protective orders…)

5/18/2020 36 Rules of Professional Conduct

 New York Rule of Professional Conduct 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER

5/18/2020 37 Effective Assistance of Counsel

 Lafler/Frye: Effective Assistance in plea negotiations  Remind Court that your obligation is not just to try the case effectively and this is a factor to be weighed in 18 U.S.C. 3161(h)(7)(B)  The Constitution requires effective assistance in plea negotiations, too  This requires you to build a relationship with your client, assess the need for any expert or mitigation evaluations, investigate the case, counsel your client and then negotiate.

5/18/2020 38 Remote Proceedings

 CARES Act provides for them, so I want to touch on them, particularly speedy sentencings  Have you participated in one?  Listen in prior to yours if you can  Different considerations for different proceedings (e.g., do you want the judge to see the witness?)  An audio proceeding with an interpreter? It’s like the client isn’t there  For many proceedings, it will be worth it for your client to wait until in person proceedings are possible. But every case is different.  And even if waiting is better than the makeshift options available now, they should get something for it.

5/18/2020 39 Remote Proceedings

 Object if it’s not right for your client. And do it as movingly as Jan Rostal!  I am not opposed to phone interviews or video interviews in general, but I am unwilling in this particular case to sacrifice the thoroughness and accuracy of an in-person interview. There is simply no basis here to resort to emergency alternatives to in-person proceedings. No lawyer worth her salt would consent to it.  More importantly, the law does not permit the Court to forcibly expedite critical sentencing proceedings or to order the defendant to participate in a 4-way telephone interview, with his counsel, an interpreter, and the officer all in different places, with no ability of counsel to consult with her client during the process.  We therefore respectfully submit that the presentence interview contemplated by Rule 32(c)(2) interview should be delayed until it can take place in person.

5/18/2020 40 Remote Proceedings

 United States v. Harry, No. 19-CR-535, 2020 WL 1528000, at *2 (E.D.N.Y. Mar. 31, 2020) (Irizarry, J.)  [c]riminal punishment impacts the most fundamental of human rights, liberty, and there are many important policy reasons why the physical presence of the defendant at sentencing is critically important: to insure the defendant has the opportunity to (1) challenge the accuracy of the information upon which the court is relying; (2) present any mitigating he may have: and (3) make a personal statement. Of equal importance, defendant is entitled to the effective assistance of counsel under the Sixth Amendment to the Constitution, a right that is difficult to give any meaningful adherence to if defendant and defense counsel are not together in the same place at the same time.

5/18/2020 41 Remote Proceedings

 Do you want them? Argue as persuasively as Douglas Morris!  [My client] has the right to make arguments that can make a real difference in his actual in the course of an adversarial proceeding. He has asked for a sentence of time served. The government opposes that sentence (see Gvt. L., at 3-5). An adjournment until July 2, as the Court has ordered, is effectively a partial sentencing decision. But the Court should render its decision about whether to impose a sentence of time served not through a ministerial adjournment but rather through an adversarial process in which the defense can make its points in both writing and oral argument.

5/18/2020 42 Remote Proceedings

 An adjournment of sentencing over the defendant’s objection rather than an expeditious remote sentencing is a denial of due process. See generally Betterman v. Montana, 136 S. Ct. 1609, 1617-18 (between and sentencing, the “primary safeguard [against undue delay] comes from statutes and rules”; “due process serves as a backdrop against exorbitant delay”; and the defendant, whose “due process right to liberty” remains, “retains an interest in a sentencing proceeding that is fundamentally fair.”); see also Fed.R.Crim.P. 32(b)(1)(“ The court must impose sentence without unnecessary delay.”)

5/18/2020 43 Looming and Related Issues

 Statutes of limitations and when they can be extended  Makeup of grand jury and petit jury pools

5/18/2020 44 Next Session

 June 1, 3:30-5:00  https://federaldefendersny.org/cja-resources.html

5/18/2020