Speedy Trial—No Forever Waiver

The United States Supreme Court reversed a 2nd Circuit Court of Appeals ruling yesterday, holding that a court may not compel or allow a criminal defendant to “prospectively” waive the right to a speedy trial for ever and all purposes.^[1] The case is Zedner v. U.S. (05-5992).

In evaluating the portion of the Speedy Trial Act of 1974 (Act), the Court focused on the section that states that the “[f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section.”^[2] Writing for the majority, Justice Samuel Alito stated that “[i]nstead of granting broad opt‑out rights, §3162(a)(2) serves two unrelated purposes[:]”

1. To assign the “role of spotting violations” to the defendant; and
2. To prevent undue defense gamesmanship and limit the effects of a dismissal without prejudice.^[3]

The majority reasoned that if a broad opt‑out was intended, the extensive list of factors in the Act for which a defendant may seek an “ends‑of‑justice” continuance in the Act would be without purpose.^[4] Moreover, the importance of serving the public interest—part of the statutory requirement in the court’s consideration—would go unserved.

Moving then to the question of what level of review is required on appeal to the grant of a continuance or delay in going to trial under the Act, the Court rendered a very plain language reading of the statute that “[t]he relevant provisions of the Act are unequivocal.”

Based on this interpretive stance toward the provision in § 3161(h)(8)(A) that “[n]o such period of delay…shall be excludable under this subsection unless the court sets forth, in the record of this case…its reasons for finding that the ends of justice…outweigh the best interests of the public and the defendant in a speedy trial,” Justice Alito concluded that a court’s failure to enter its ends‑of‑justice findings in the record granting a continuance clearly merits dismissal of the case upon the defendant’s motion and without a harmless error analysis on review.^[5]

Finally, in a bit of stump‑thumping, Justice Antonin Scalia made a wildly castigating statement in his concurring opinion. Writing for himself, Justice Scalia attributed his disagreement with the majority’s analysis of the legislative history in this case to his belief that “the use of legislative history is illegitimate and ill advised in the interpretation of any statute—and especially a statute that is clear on its face.”^[6]

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[1] Zedner v. U.S., 547 U.S. ____ (2006) (Scalia, J., concurring). See also Speedy Trial Act of 1974, 18 U.S.C. §§ 3161‑3174.
[2] Zedner at 11-12. See also 18 U.S.C. §§ 3162(a)(2).
[3] Zedner at 11-12.
[4] 18 U.S.C. §§ 3161(h). Factors include the need for time to obtain counsel and to effectively prepare counsel.
[5] Zedner at 18. See also 18 U.S.C. § 3161(h)(8)(A).
[6] Zedner at concurrence.