The global coronavirus pandemic has changed nearly every aspect of our daily lives, as remote work has become commonplace, international travel has all but halted, businesses have closed their doors (some forever), and Americans have learned to wear masks and practice social distancing. As parts of the country have reopened in phases, others, including our schools and universities, are grappling with whether to shut down in the face of new cases. The disruption caused by these stop-and-go fact patterns has resulted in a perpetual state of limbo as our political, medical, educational, religious, and other leaders try to make sense of uncertain and evolving scientific conclusions on COVID-19.
The judicial system has not been immune from the chaos wrought by the coronavirus. In the Northern District of Illinois, for example, the chief judge issued several general orders over the last few months extending court deadlines, shifting hearings to be conducted remotely, and suspending jury trials until just recently, namely, August 3, 2020—some five months after the president declared a national emergency on March 13, 2020. E.g., Fifth Amended Gen. Order 20-0012 (N.D. Ill. July 10, 2020). Indeed, although Illinois’s Northern District held a jury trial in August, it was significantly different, with face masks, hand sanitizers, and perpetual social distancing. See Jon Seidel, “Chicago’s first jury trial of pandemic ends with guilty verdict—and praise from jurors,” Chicago Sun Times (Aug. 6, 2020). And many other courts have not yet taken this step. To be sure, the orders suspending jury trials expressly “recognize[d] and respect[ed] the right of criminal defendants, particularly those in pretrial detention, to a speedy and public trial under the Sixth Amendment.” But the question still remains how much delay is too much for the speedy-trial right, even when dealing with a global pandemic and its risks and dangers. This article examines that question and provides some historical and other contexts for defense attorneys (and their clients) to consider as they weigh their speedy-trial options. In the right case (with the right facts), the criminal defendant might be pleasantly surprised to find his/her speedy-trial motion granted, notwithstanding the pandemic and the presumption of excludable delay it seems to create. From online commerce to home deliveries to shuttered businesses, COVID-19 has created winners and losers in all aspects of everyday life. There is no reason to think the same is not (and will not) be true for violations of the constitutional and statutory right to a speedy trial.
The Sixth Amendment
The Sixth Amendment to the US Constitution provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The right to a speedy trial is a fundamental one that predates even the birth of our nation, dating back to the Magna Carta in England and even beyond. See Ch. 40 of the 1215 Magna Carta; Klopfer v. North Carolina, 386 U.S. 213, 223–24 (1967). The right protects individuals by “prevent[ing] undue and oppressive incarceration prior to trial, . . . minimiz[ing] anxiety and concern accompanying public accusation and . . . limiting the possibility that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U.S. 116, 120 (1966). At the same time, it benefits society as a whole by avoiding backlogs in the judicial system and maximizing the deterrent and rehabilitative effects of the criminal law. See Barker v. Wingo, 407 U.S. 514, 519 (1972).
Not all delays leading up to a criminal trial implicate the speedy trial guarantee. Generally, whether a delay violates a defendant’s right to a speedy trial depends on four distinct inquiries: (1) whether the delay before trial was “uncommonly long,” (2) whether the government or defendant is “more to blame for that delay,” (3) whether the defendant asserted the speedy-trial right in due course, and (4) whether the defendant suffered prejudice as a result of the delay. Doggett v. United States, 505 U.S. 647, 651 (1992). No single factor is “necessary or sufficient,” and the length of the delay is not alone dispositive for Sixth Amendment purposes. United States v. Bettis, 589 F.3d 673, 678 (3d Cir. 2009); see also Barker, 407 U.S. at 522. Nor must a defendant prove actual prejudice from the delay. United States v. Marion, 404 U.S. 307, 320 (1971). As the Supreme Court has observed, the protections of the speedy-trial right are agnostic as to guilt or innocence— and perhaps even “unsatisfactorily severe”—because “it means that a defendant who may be guilty of a serious crime will go free, without having been tried.” Barker, 407 U.S. at 522.
The Speedy Trial Act
Because the Constitution does not specifically define what it means for a trial to be “speedy,” different states codified different timelines for a speedy trial. See, e.g., Cal. Penal Code § 1382 (West 1970); Ill. Rev. Stat. ch. 38, par. 103-5(a) (1973). In 1974, Congress passed the Speedy Trial Act to promote uniformity within the federal system. 18 U.S.C. §3161 et seq. Interestingly, the Act’s proponents did not focus solely on the rights of individual defendants, but also on a perceived need to obtain convictions quickly to reduce the risks of recidivism. 1974 House Comm. Rep. 8, 11. The major force behind the Senate bill, Senator Samuel Ervin, emphasized that it was necessary to create timelines for criminal trials to protect public safety; a defendant may be “in no hurry for trial, because he wishes to delay his day of reckoning as long as possible” and “[t]he overworked courts, prosecutors, and defense attorneys depend on delay in order to cope with their heavy caseloads.” 120 Cong. Rec. 41618 (1974).
As enacted, the Speedy Trial Act establishes concrete time limits for completing various stages of a federal criminal prosecution. For instance, absent court-approved extensions, the period between arrest and indictment cannot ordinarily exceed 30 days, and the period between arraignment and trial cannot ordinarily exceed 70 days. 18 U.S.C. § 3161(b)–(c). If these time constraints are violated—and unless a recognized exclusion of time applies—the complaint may be dismissed with or without prejudice depending upon the seriousness of the offense, the facts and circumstances that led to the dismissal, and the impact of re-prosecution. 18 U.S.C. § 3162(a)(1)–(2).
Of course, certain pretrial delays are automatically excluded from the Act’s time limits, such as delays caused by pretrial motions, delays caused by the unavailability of the defendant or an essential witness, delays attributable to a co-defendant, and delays attributable to the defendant’s involvement in other proceedings, including delay resulting from an interlocutory appeal. 18 U.S.C. § 3161(h)(1)(E), (1)(F), (3), (7). Additionally, pursuant to an infrequently used statute first enacted in 1975 and later amended in 1979, entitled “Judicial emergency and implementation,” the chief judge of any judicial district may seek from the judicial council of the circuit up to a one-year suspension of the Speedy Trial Act on the grounds that the court is “unable to comply with” it “due to the status of its court calendars.” 18 U.S.C. § 3174(a). “During such period of suspension, the time limits from arrest to indictment, set forth in section 3161(b), shall not be reduced, nor shall the sanctions set forth in section 3162 be suspended; but such time limits from indictment to trial shall not be increased to exceed one hundred and eighty days.” Id. § 3174(b). And the “time limits for the trial of cases of detained persons who are being detained solely because they are awaiting trial shall not be affected by the provisions of this section.” Id. Although what exactly constitutes this sort of “judicial emergency” has never been clearly defined, the Ninth Circuit relied on this statute in approving COVID-19 continuances imposed by three of the four California federal districts, with the last (the Northern District of California) declaring its own judicial emergency that has yet to be reviewed or approved by the Ninth Circuit. See In re Approval of the Judicial Emergency Declared in the S. Dist. of Cal., Judicial Council of the Ninth Circuit (Apr. 2, 2020) (extended through April 17, 2021); In re Approval of the Judicial Emergency Declared in the Cent. Dist. of Cal. (Apr. 9, 2020) (extended through April 13, 2021); In re Approval of the Judicial Emergency Declared in the E. Dist. of Cal. (Apr. 16, 2020) (extended through May 2, 2021). The Northern District of California also declared a judicial emergency on July 23, 2020, although the Ninth Circuit has yet to weigh in on that declaration. Gen. Order No. 72-5 (N.D. Cal. July 23, 2020).
The most frequently invoked basis for the government (and defense) to exclude time from the Speedy Trial Act is that a continuance would serve the “ends of justice.” 18 U.S.C. § 3161(h)(7)(A). When employing section 3161(h)(7)(A) to grant a continuance and exclude time from the speedy-trial clock, a court must explicitly provide its justifications for doing so. And the Act sets forth factors the court must consider, including (1) whether the failure to grant such a continuance would likely be to make a continuation of such proceeding impossible, or result in a miscarriage of justice; (2) whether the case is so unusual or complex that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the ordinary time limits; and (3) whether the failure to grant a continuance would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the government continuity of counsel, or would deny counsel the reasonable time necessary for effective preparation. Id. § 3161(h)(7)(A). A continuance may not be granted “because of general congestion of the court’s calendar, or lack of diligent preparation or failure to obtain available witnesses on the part of the attorney for the Government.” Id. § 3161(h)(8).
Against this backdrop, the Coronavirus Aid, Relief, and Economic Security Act (or CARES Act), enacted on March 27, 2020, does not provide instructions, much less guidance, on defendants’ right to a speedy trial. Instead, pursuant to section 15002, the CARES Act provides courts with the power to conduct certain criminal proceedings by video or telephonic conferencing.
Delay: How Long Is Too Long?
Because the Speedy Trial Act sets strict timelines for the phases of a criminal trial, the question of whether a delay violates the Act would, at first blush, seem fairly straightforward. If the trial does not occur within 70 days of arraignment, dismissal is appropriate. 18 U.S.C. § 3161(c). But as set forth above, courts have considerable leeway to exclude time from that 70 days for the “ends of justice,” id. § 3161(h)(7)(A), and other enumerated grounds. And when a court excludes time on that basis, its fact findings will not be disturbed on appeal unless clearly erroneous. See United States v. Lattany, 982 F.2d 866, 870 (2d Cir. 1992). Similarly, appellate courts review the application of the law to those facts for an abuse of discretion. See id. at 870.
From a constitutional perspective, the U.S. Supreme Court has recognized lower-court jurisprudence holding that delay in bringing a criminal defendant to trial is “presumptively prejudicial” as it approaches one year. Doggett, 505 U.S. at 652 n.1. This does not, however, mean that the speedy trial right has been violated after a year; it just means “courts deem the delay unreasonable enough to trigger” the speedy trial inquiry. Id. And the Court has acknowledged that the size and complexity of a criminal case factor into the analysis, stating that “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker, 407 U.S. at 531. Accordingly, in complex cases, federal appellate courts have declined to find speedy trial violations based on even lengthy delays that span many years. See, e.g., United States v. Perez-Cubertier, 958 F.3d 81, 90 (1st Cir. 2020) (four-and-a-half-year delay); United States v. Federick, 789 F. App’x 123, 127 (11th Cir. 2019) (six-year delay); United States v. Patterson, 872 F.3d 426, 435 (7th Cir. 2017) (more-than-four-year delay).
However, courts have found delays excessive where a lengthy delay is coupled with another factor, such as fault on the part of the government. For example, in United States v. Black, there were nearly five years and eight months of delay, and the government made “no effort to resolve the death-penalty question for two years,” waited until the last minute to file a superseding indictment, and failed to produce the defendants for court appearances multiple times. 918 F.3d 243, 266 (2d Cir. 2019). Similarly, in United States v. Velazquez, the government’s “negligible effort” to locate the defendant contributed five years to the delay. 749 F.3d 161, 180 (3d Cir. 2014). As the Supreme Court has put it, “different weights should be assigned to different reasons” for the delay, with “more neutral reason[s] such as negligence or overcrowded courts” being “weighted less heavily” against the government, but “nevertheless considered.” Barker, 407 U.S. at 531.
It may also make a difference for speedy-trial purposes if a defendant is on bail or in custody during the period of delay. See In re Robinson, 713 F. App’x 764, 767 (10th Cir. 2017). Indeed, one of the purposes underlying the Constitution’s Speedy Trial Clause is to protect against “undue and oppressive incarceration prior to trial.” Jauch v. Choctaw Cnty., 874 F.3d 425, 432 (5thCir. 2017). Although the clause also seeks to avoid the “lesser . . . impairment of liberty imposed on an accused while released on bail,” Brown v. Romanowski, 845 F.3d 703, 713 (6th Cir. 2017), trial delays are more problematic for the incarcerated.
Speedy Trials, Public Emergencies, and Health Issues
Due to the (fortunate) rarity of public emergencies like the current COVID-19 pandemic, there is no clear rule for when a public emergency provides grounds to exclude time under the Speedy Trial Act. In 1981, following the eruption of Mount St. Helens in the State of Washington, the Ninth Circuit held that an extended delay (ultimately 72 days) caused in part by the eruption was appropriate. Furlow v. United States, 644 F.2d 764, 768 (9th Cir. 1981). In that case, the court applied the Speedy Trial Act and noted that the record “contains an acknowledgement of the appreciable difficulty expected with an incident/accident of earth-shaking effect, although the various impacts are not detailed.” Id. Courts also excluded time under the Speedy Trial Act following the terrorist attacks of September 11, 2001. See United States v. Correa, 182 F. Supp. 2d 326, 329 (S.D.N.Y. 2001).
Courts have also addressed extensions due to individual health concerns with mixed results. In United States v. Reding, for example, the court allowed four trial-date continuances because the defendant was too ill to travel and stand trial due to complications arising from a previous heart surgery. 557 F. Supp. 88 (D. Nev. 1982). By contrast, the court in United States v. Goldstein refused to grant a continuance for a defendant suffering from coronary artery disease and diabetes despite the alleged increased risk of heart problems if trial commenced. 633 F. Supp. 424, 426–27 (S.D. Fla. 1986). The court noted (among other things) that the defendant allegedly committed his criminal acts under the same circumstances, the court was making “every reasonable accommodation” to minimize discomfort, the defendant’s medical conditions appeared permanent, and the crimes alleged were very serious. Id.
Coronavirus Delays
All this leads to the coronavirus. The COVID-19 pandemic bears some similarities—but also major differences—to the situations courts have previously addressed for speedy-trial purposes. But the coronavirus is also more widespread than any individual health condition, and likely to have a more lasting impact than any single geological or even man- made crisis. Take, for example, the U.S. District Courts for the Eastern, Central, Northern, and Southern Districts of California: All of them have declared judicial emergencies and, with the Ninth Circuit’s approval (excepting the Northern District of California, upon which the Ninth Circuit has not ruled), suspended the time limits of section 3161(c) for one year. E.g., In re Approval of Judicial Emergency Declared in E. Dist. of Cal., 956 F.3d 1175 (9th Cir. Jud. Council 2020). Similarly, the Southern District of New York has continued all civil and criminal trials indefinitely, with deadlines subject to the discretion of presiding judges.
Standing Order, In re: Coronavirus/COVID-19 Pandemic, No. 1:20-mc-00196-CM, ¶¶ 2–4 (S.D.N.Y. Apr. 20, 2020); see also In re: Coronavirus/COVID-19 Pandemic, No. 1:20-mc- 00196-CM, ¶¶ 4, 8–9 (S.D.N.Y. June 12, 2020) (extending deadlines, including the suspension of trial). Similar orders exist throughout the country. See, e.g., In re: Coronavirus/COVID-19 Pandemic, No. 2020-20, ¶¶ 4–6 (E.D.N.Y. June 15, 2020) (excluding the time period from June 15, 2020, to September 14, 2020, under the Speedy Trial Act for all matters in the Eastern District of New York); Fifth Amended Gen. Order 20-0012 (N.D. Ill. July 10, 2020) (excluding delays through September 14, 2020, under the Speedy Trial Act in the Northern District of Illinois).
To be sure, these orders are for good reason: The mere mechanics of maintaining social distancing pose significant challenges to conducting trials, although Chicago’s recent federal criminal trial also has demonstrated that it can be done. See generally COVID-19 Judicial Task Force, Report of the Jury Subgroup: Conducting Jury Trials and Convening Grand Juries During the Pandemic (June 4, 2020). For example, when gatherings are limited to 10 or fewer persons, how can courts empanel juries of 12 (or gather a venire of many dozen prospective jurors)? When maintaining distances of six feet or more is best practice, how can juries be seated in jury boxes inches apart from one another, or witnesses on
witness stands adjacent to judges and courtroom staff? Can court personnel, jurors, attorneys, and defendants practically get to and from a trial without being confined alongside others in small spaces? Are courtrooms technologically prepared to allow for trial participants to effectively communicate (and deliberate) while distancing? Although Northern District of Illinois has managed to successfully pull off a federal criminal trial, it remains to be seen whether the intense precautions taken there, which applied to every aspect of the juror’s experience from parking to security to deliberations, can be replicated on a widespread basis and if so, at what cost.
Because of the difference in scale presented by COVID-19, past decisions on the speedy-trial right provide an incomplete frame of reference for how courts will (or should) assess the current issues. It is likely that, as the impact of the coronavirus continues into the foreseeable future and different regions adopt different approaches, courts may begin to perform a refined balancing test of section 3161(h)(7)(A) to determine if a continuance is permissible under the Speedy Trial Act. As set forth above, section 3161(h)(7)(A) gives courts considerable latitude to grant continuances and exclude time under the Speedy Trial Act but requires an express finding that the “ends of justice . . . outweigh the best interests of the public and the defendant in a speedy trial.” This alone could serve as a basis for a challenge under the Speedy Trial Act, as many of the recent court orders extending deadlines have applied across the board, without the express, individualized findings the Act requires or the invocation of section 3174’s extraordinary judicial-emergency powers.
Indeed, in a recent unanimous ruling for criminal defendants, the Colorado Supreme Court reversed COVID-19 continuances under Colorado’s speedy-trial statute because they were granted “without making an adequate record.” In re Lucy & Meresa, No. 20SA120, at *16 (Colo. June 29, 2020). The court concluded that the applicable Colorado speedy-trial statute “authorizes a trial court to grant the prosecution a continuance with a tolling of the speedy trial period for up to six months,” only if the court establishes that “(a) as a result of a public health crisis, evidence material to its case is unavailable; (b) it has exercised due diligence to obtain that evidence; and (c) there are reasonable grounds to believe that the unavailable evidence will be available on the new trial date.” Id. at *3.
Whether In re Lucy & Meresa and its reasoning will set off similar decisions elsewhere remains to be seen. But the Colorado Supreme Court’s decision also shows that, as reality settles in that COVID-19 might be with us well into the foreseeable future, courts may be more willing to entertain the argument that speedy-trial concerns can outweigh the pandemic under the right facts and circumstances—and with the right record.
Similarly, from the constitutional perspective, if delays from COVID-19 begin to approach a year (or prove to be more than a year), courts can be expected to deem them presumptively unreasonable for speedy-trial purposes. Doggett, 505 U.S. at 652 n.1. But it would not be surprising if the government were to argue that the reason for these delays should be viewed as neutral or even valid, rather than something for which the government should be held responsible. See, e.g., Simms v. Bravo, 111 F. App’x 552, 555 (10thCir. 2004) (illness a neutral reason for delay). Generally, valid reasons for delays “weigh less heavily against the government or [do] not weigh against the government at all.” United States v. Myers, 930 F.3d 1113, 1119–20 (9th Cir. 2019).
It is thus doubly important for defendants raising speedy-trial challenges to assert their rights, especially when they can identify other contributing factors for delay, such as the government’s failure to take available steps such as producing discovery or filing necessary motions. See Black, 918 F.3d at 266. Defendants might also point to any deficits in the government’s efforts to mitigate the impact of the pandemic, such as requesting hearings by telephone or video (especially in light of the CARES Act), as signs the government contributed to the delay in an unacceptable manner. And the reality is that most criminal defendants were not arrested during the shutdown, but instead had their cases pending already when the shutdown went into effect. To the extent that defendants can emphasize pre-shutdown delays that have been exacerbated (and compounded) by the shutdown, the more likely courts may be willing to entertain a defendant’s pleas for speedy-trial dismissal. After all, the Bill of Rights exists to preserve individual liberty. And for defendants in custody, the unfairness of lengthy pre-trial detention (particularly in close quarters during a pandemic) will be worth stressing. See Robinson, 713 F. App’x at 767.
Thus, even if courts so far have seemed to treat litigation continuances—even in criminal cases—as presumptively valid during the pandemic, that does not mean the same will hold true three, six, nine, 12, 18, or 24 months from now. Much can change quickly, as we have all experienced in the last several months. Recognizing that, white-collar practitioners and criminal defense lawyers alike are reminded that the speedy-trial determination is meant to be an individualized one. In the right case, the defense may well be justified to challenge blanket continuances and force the government to make a showing that the “ends of justice” in a particular case outweigh the speedy-trial right, especially when there are other pre-virus delays the defense can effectively point to while discussing those delays caused by COVID-19.
Conclusion
Against the backdrop of the coronavirus, it remains to be seen just how much delay can be tolerated under the Sixth Amendment and the Speedy Trial Act. As the pandemic continues to ebb and flow throughout the United States and with some predicting (and planning for) a “second wave,” a “speedy” recovery appears increasingly unlikely, and with it, speedy trials
will likely be much more elusive. As seen in the nation’s most populous state, California, some extensions have already reached into 2021, and other jurisdictions have left their extensions pending indefinitely. Prior precedent suggests that courts may be inclined—at least early on—to exclude coronavirus delays from the speedy-trial clock by citing the interests of justice. But as the delay continues with no seeming end in sight—and especially if, Heaven forbid, a more widespread second wave were to descend on our nation—the courts’ early view may begin to shift. In fact, the Colorado Supreme Court has already recognized that blanket continuances without individualized fact-finding offend speedy-trial rules. And though that court did not go so far as to prohibit all COVID-19 delays, another court might—especially if the virus enters into extra innings that exceed a year, perhaps by a lot. Indeed, such a judicial finding could well prove to offer the opening that causes other courts to follow suit. This is especially true for those defendants who have been patiently waiting for their day in court for quite some time already—and all the more so if defense counsel can emphasize dilatory pre-shutdown adjournments that have been exacerbated by the coronavirus.
As this crisis continues, all defense attorneys need to be proactive about stressing their client’s speedy-trial rights and the need for solutions like videoconferencing to avoid delay, if doing so is in their clients’ interests. And if delay is inevitable, defense attorneys should be prepared to make appropriate speedy-trial challenges. After all, the right to a speedy trial is a core right that has been an integral part of the Constitution since 1791. As such, they should not be abandoned now, even in the face of a prolonged pandemic with no real end in sight.
Andrew S. Boutros is regional chair of Dechert LLP’s white-collar practice in Chicago and Washington, DC, and lecturer in law at The University of Chicago Law School.
Jay R. Schleppenbach is counsel in Dechert LLP’s white-collar practice in Chicago, where he has represented major corporations in complex international investigations and litigated matters.
Gregory T. Noorigian is an associate in Dechert LLP’s litigation practice. His practice focuses on securities class action litigation defense, derivative litigation, SEC and DOJ investigations, and other complex commercial litigation.