Argument recap: Speedy Trial Act, motion time, and “un-cert-worthy questions”

Yesterday, the Court heard oral argument in United States v. Tinklenberg (No. 09-1498). This case presents the question whether the federal Speedy Trial Act excludes from its trial deadline all time during which a district court resolves pretrial motions, even when a motion does not delay trial. The argument offered potential insight into the Justices’ views on this question, but the Court also pressed the advocates extensively on issues outside of the actual question presented.

Tinklenberg was charged with federal firearm and drug offenses. Before trial, he moved to dismiss under the Speedy Trial Act. The district court denied this motion, and Tinklenberg was convicted after trial. The Sixth Circuit reversed, holding that the district court should not have excluded pretrial motion time from the speedy trial clock when the motions did not delay trial.

The Government petitioned the Court for review solely on this “motion time” question. In response, Tinklenberg also argued that the Sixth Circuit incorrectly excluded other time periods, and that the Court should entertain these alternate arguments even if it were to rule against Tinklenberg on the “motion time” issue.

The Government’s argument yesterday remained focused on the “motion time” question only for ten pages of transcript before Justice Sonya Sotomayor said, “Counsel, I hope you won’t sit down without addressing [Tinklenberg’s alternate] issue and explain why we shouldn’t reach it.” The Government thus spent the rest of its opening argument time arguing why the Court should not address Tinklenberg’s alternate arguments. Counsel for Tinklenberg, in turn, started his own argument by stating, “Before turning to the substance, I would like to, if I may, start with the procedural question that Justice Sotomayor raised.”; Tinklenberg’s counsel spent the next ten pages of argument transcript on these issues rather than the motion time question.

With so much argument time dedicated to issues other than the motion time question, Justice Anthony Kennedy eventually interjected, “I can’t stand the suspense. I would like to hear about the delay point”— the actual question presented. Several Justices, however, inquired actively about the merits of Tinklenberg’s alternate arguments, particularly his argument that the Sixth Circuit incorrectly excluded weekends and holidays when calculating transportation delay in Tinklenberg’s pretrial competency examination.

Some Justices, however, expressed concern about reaching the merits of Tinklenberg’s alternate arguments. Justice Samuel Alito, for example, wondered whether this procedure would invite respondents to “ask[] to have the decision below affirmed on 15 other grounds.” Justice Alito queried, “[A]re [we] duty-bound to decide every one of those 15 grounds?” Justice Alito pointedly asked counsel for Tinklenberg to consider, if the cert. petition had raised one of Tinklenberg’s alternate claims, “How would you grade the chances of the Court taking cert on that?” Counsel acknowledged, “[T]hat kind of a question would be cert. denied,” But he nevertheless argued that the Court should address an “un-cert-worthy question” if that decision would result in an affirmance of the judgment below.

Justice Antonin Scalia questioned the value of the Court deciding the motion time question at all if it were to affirm the judgment on other grounds. The Government made clear that it wants the Court to decide the motion time question to resolve a split among the circuits, while counsel for Tinklenberg suggested that the Court instead simply could dismiss the petition as improvidently granted.

In one interesting exchange, Justice Stephen Breyer noted that a recent change to a federal rule may mean that Tinklenberg could win on his transport delay argument. Justice Breyer asked, “They’ve changed the rule. His case is still on appeal. Why shouldn’t he get the advantage of the new rule … it seems fair.” Justice Scalia countered: “May I suggest that perhaps the reason not to do it is, assuming this person was treated entirely fairly on the basis of the law that existed at the time, the consequences of what Justice Breyer proposes is to set free someone who has been duly convicted of a crime.” The Government was left to concur, “That’s right.”

The Court therefore may work through a variety of procedural options surrounding the actual question presented. On the merits of this question, the argument time did not leave counsel with too much opportunity to argue beyond what the briefs already asserted.

The Government and counsel for Tinklenberg both claimed that the text of the Speedy Trial Act supports their respective positions. The Government argued that “delay resulting from” in the statute speaks solely to the interval between the filing and disposition of any motion. Counsel for Tinklenberg linked that language to the trial itself, limiting the speedy trial clock exclusion solely to motions that delay trial.

Both sides pressed policy arguments, too. The Government argued that Tinklenberg’s rule would prove “unworkable” as courts attempt to divine whether and for how long a particular motion delayed the trial. Justices Alito and Breyer echoed this concern in their questions, and counsel for Tinklenberg acknowledged in response to a hypothetical from Justice Alito that Tinklenberg’s rule could permit either ten or thirty excludable days.Tinklenberg’s counsel responded, however, that the Government posed “difficult hypotheticals” when the practice in the Sixth Circuit has proved much more manageable. He also argued that the Speedy Trial Act promotes more efficient trials, which the Government could frustrate by filing numerous pretrial motions. Justice Kennedy observed, “[T]he whole point of the Act was to hold district judges to a pretty strict standard, and the concern is that there might be a very complex case the judge just really wants to put off as long as possible and will continue to accept motion after motion.” The Government assured the Court that it does not seek to delay trials through its motions practice, and that motion delays overall present no substantial problem.

In a bit of a capstone moment to the argument, Justice Sotomayor humorously noted, “I don’t believe I had a trial in my district court days where between the time I had the pretrial conference and the time trial started, there wasn’t a slew of motions, because that’s about the time counsel tends to wake up.” Justice Sotomayor asked, “Why should we not exclude those times, because those motions, whether they’re administrative or not, will cause the trial to go faster, because issues that would otherwise consume the time of the court during trial are being resolved before trial?”

In the end, both sides offered some “trust us” arguments to defend against potential problems with one construction of the Speedy Trial Act or another. The Court’s decision will reveal which construction it trusts more—or whether some other ground altogether will resolve this case.