Tuesday’s second case is Zedner v. United States, No. 05-5992. The Court granted certiorari in Zedner to decide two questions about the Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq.: First, whether a criminal defendant may challenge an impermissibly long continuance when she requested the continuance herself. Second, whether a violation of the Act can be harmless error.
Edward Zas of the Federal Defenders of New York, Inc. (formerly the Federal Defender Division of the Legal Aid Society of New York) will argue for petitioner Jacob Zedner. (Disclosure: this writer worked with Mr. Zas last summer as a legal intern). Assistant to the Solicitor General Daryl Joseffer will argue for the United States.
The Speedy Trial Act provides in relevant part that the trial of a criminal defendant “shall commence†within 70 days of the defendant’s indictment or first appearance, whichever happens later. Violations of the Act result in dismissal, on motion of the defendant, with or without prejudice. A defendant can always waive his statutory speedy trial rights by not moving to dismiss. Relevant exceptions to the 70-day delay limit include an “advisement†provision allowing an additional 30 days for the time in which a proceeding is under advisement by the court, an “ends of justice†provision allowing a continuance over the 70-day limit so long as the judge makes findings (by reference to various enumerated factors) that the continuance serves the ends of justice, and an “incompetency†provision allowing delay resulting from mental incompetence.
Jacob Zedner ran afoul of the federal government by trying to get various banks to accept a forged $10 million “U.S. Dollar Bond.†The banks declined the document over Mr. Zedner’s protestations that its errata (references to institutions like the “Onited States,†“Thunted States,†“Cgicago,†and the “Ministry of Finance of U.S.A.â€) were a “secret code†proving the bond was authentic.
Mr. Zedner challenges two periods of delay that occurred between his indictment in the Eastern District of New York on April 4, 1996 and his trial on April 7, 2003. The first occurred in 1997 between January 31 and May 2 – a period of 90 days. The court granted this continuance on motion of Zedner’s defense counsel, but Zedner argues that because the court made no “ends of justice†findings, the delay is not excludable under that provision. The second period occurred between August 23, 2000 and March 6, 2001 – a period of 195 days. Mr. Zedner argues that this delay, which was taken while the court had Mr. Zedner’s competency proceedings under advisement, is not excludable under the advisement provision, because the period was longer than the 30 extra days allowed under that provision.
The district court found no Speedy Trial Act violation for either delay, ruling that Mr. Zedner had previously waived his statutory right to a speedy trial “for all time.†The Second Circuit disagreed, holding that the Act prohibits waivers “for all time.†The court of appeals affirmed on independent grounds, however, holding in relevant part that (1) Mr. Zedner implicitly waived the statutory 70-day limit when he himself requested the continuance; and (2) the 195-day advisement period was harmless error because (a) Mr. Zedner failed to show that the delay prejudiced his trial, and (b) Mr. Zedner was ultimately found incompetent to stand trial in any case. The Supreme Court granted certiorari to review both holdings.
The parties appear to agree that the Act does not countenance waiver “for all time.†Mr. Zedner argues, and the United States does not dispute, that the district court’s waiver rationale for excluding both contested periods of delay was erroneous. Zedner contends that speedy trials benefit the public, not (usually) defendants, and thus that defendants may not nullify that benefit with routine waivers. Zedner also contends that a general waiver rule would compromise efficiency and Congress’s intent – as manifested in the structure and history of the statute – to limit defendants’ abilities to waive.
The parties disagree, first, about whether a defendant can challenge a continuance above 70 days that he himself requested when the district court fails to make an explicit “ends of justice†finding. Mr. Zedner argues that the Second Circuit’s implicit waiver rationale for excluding the 90-day continuance was erroneous. Even accepting the Second Circuit’s ex post determination that the continuance served the ends of justice, he contends that the text of the Act requires an explicit ex ante “ends of justice†finding by the district court. Zedner also disputes that the continuance served the ends of justice just because defense counsel requested it, in large part because such an exception would swallow the speedy trial rule. Zedner denies that the lack of an exception would allow defendants to sand-bag trials by repeatedly inviting delays, explaining that district courts can always insure against violations by making explicit ends-of-justice findings.
The United States defends the 90-day continuance primarily on judicial-estoppel grounds (though it briefly argues that a defendant’s continuance is a permissible implicit waiver), arguing that the defendant’s express waiver “for all time†induced the district court to grant the motion without an explicit “ends of justice†finding and that Mr. Zedner cannot now turn around and challenge the absence of a finding. The government contends that Congress did not intend to preclude judicial estoppel, and that the absence of judicial-estoppel protection will encourage defendants to manufacture violations of the Act. The government argues that there was no violation of the Act because the district court in this case made an implicit ends-of-justice finding—which is implied by the grant of a lesser period of delay than that requested by Mr. Zedner. In the alternative, the government asks for remand so the district court can enter an explicit finding on the record. (That the Court has called for the record in this case may indicate its willingness to investigate the ends-of-justice merits of the district court’s grant of the continuance.)
The parties disagree, second, on the harmless error issue. For his part, Mr. Zedner argues primarily that the Second Circuit erred in excluding the 195-day delay period as harmless error because harmless error analysis does not apply to the Speedy Trial Act. Mr. Zedner again points to the text of the Act, arguing that the provision that the “indictment shall be dismissed†upon defendant’s motion, even when no harm results, rules out the application of harmless error. Zedner argues that applying harmless error doctrine to the Act amounts to a presumption that the indictment shall not be dismissed unless there is harm. He argues that such a presumption is contrary to the text, pointing to the Court’s 2001 opinion in Alabama v. Bozeman, which interpreted similar language in a different speedy trial statute to preclude harmless error. Zedner argues further that applying harmless error is inconsistent with the remedial provisions of the statute, which specify an analysis of the harm to the defendant only in considering whether dismissal should be with or without prejudice. Finally, Zedner contends that harmless error would undermine Congress’s intent to deter delay.
In the alternative, Mr. Zedner argues very briefly that even if harmless error applies, such harm exists: although he was found incompetent to stand trial after the 195-day period, he subsequently became competent after testing and treatment. Zedner contends that if the court had timely found him competent within the 30-day advisement period, his treatment and trial would have been able to proceed sooner.
The United States argues that there was no error in the delay itself, that the district court’s error in not mentioning that the 195-day delay resulted from a finding of incompetence was harmless, and that harmless error applies that omission. In the first place, the government argues no error: the 195-day delay was excludable under the Act’s incompetency provision because Mr. Zedner was found mentally incompetent to stand trial and that finding encompassed the entire 195-day period. The government argues second that there was no harm even if Zedner would have been able to stand trial earlier because Zedner cannot show that that fact would necessarily have resulted in an earlier trial. Third, the United States argues that harmless error analysis applies to the court’s failure to find that the 195-day delay resulted from incompetency. In arguing that error applies, the government distinguishes between violations of the 70-day limit—the focus of Mr. Zedner’s lack-of-harmless-error argument—and the inadequacy of a district court’s findings that the incompetency caused the delay. Such technical errors, for the government, are paradigmatic harmless errors that nothing in the statute contradicts.
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