Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided. I’m Alan Mygatt-Tauber.
This week we’re discussing United States v. Tigano, a Second Circuit case about the Sixth Amendment right to a speedy trial.
Joseph Tigano III and his father were arrested on charges related to a marijuana growing operation in July 2008. Nearly five years later, on November 25, 2013, Tigano’s father pled guilty to one count of manufacturing 50 or more marijuana plants. Tigano refused to plead and proceeded to trial on May 4, 2015, nearly 7 years after his initial arrest. He was imprisoned during the entirety of the pre-trial proceedings. Following his conviction, he filed an appeal, arguing that his Sixth Amendment right to a speedy trial was denied.
As the court noted at the outset, the pretrial detention experienced by Tigano appears to be the longest ever experienced by a defendant in a speedy trial case in the Second Circuit. What makes it all the more remarkable is that it was not the result of any extraordinary factor – merely a confluence of numerous small choices and neglects, which, added together, resulted in this miscarriage of justice.
The Court broke down Tigano’s detention into eight periods, beginning with his arrest, arraignment, and eventual hunger strike, from July 8, 2008 to April 8, 2009.
Tigano was arrested on July 8, 2008. He was not arraigned until October 20 of that year. At his arraignment, he told the court that he would not accept a plea and wished to preserve his speedy trial rights, the first of many times he would do so. His next court date was originally scheduled for March 19, 2009, but was rescheduled on a motion by his father, who asked for a delay. However, this request was never conveyed to Tigano, so he stopped eating in protest of being denied his court date.
On April 9, 2009, Tigano finally got his court date. At the end of this court date, Tigano would be referred for a competency exam, to determine if he was fit to stand trial. According to the transcript, the driving motivation for this exam was Tigano’s repeated demand for a speedy trial.
The parties next met on August 12, 2009 after Tigano’s evaluation was completed. The exam found that he was competent to stand trial and was able to assist in his own defense. Tigano asked to represent himself, in large part because of conflicts with his counsel over his desire to proceed directly to trial. The magistrate judge indicated that Tigano’s desire to represent himself and go to trial made the judge think Tigano needed to be re-evaluated. He denied the request to proceed pro se and appointed standby counsel to explain the risks of trial to Tigano. Two days later, the parties met again and Tigano reiterated his request to proceed pro se. The judge granted his request nearly a month later.
During this phase of the proceedings, Tigano’s statements in court became increasingly desperate as he pleaded to move the case forward, repeatedly raising his right to a speedy trial and making numerous requests to sever his trail from his father’s. Tigano’s father had repeatedly moved to delay proceedings. Despite this, the Court told Tigano that his father had caused no delay in his case at all.
On January 21, 2010, the Court postponed a scheduled trial date at the request of both Tigano’s father’s attorney and the Assistant United States Attorney, who both had other cases on their calendars. Tigano’s standby counsel reiterated his desire for severance and a speedy trial – but she also questioned his ability to understand the charges against him and to represent himself. This led the magistrate judge to order a second competency exam, despite the fact there was no allegation that the first exam was flawed, or that Tigano’s behavior had changed. Again, the Court of Appeals noted that this second exam also appeared to be prompted largely by his invocation of his speedy trial rights. The AUSA prosecuting the case acknowledged as much at a hearing on March 31, 2010. 83 days after ordering it, the second competency exam was returned, indicating that Tigano was competent to stand trial.
The next period examined by the Court covered May 17, 2010 to April 4, 2012 – this nearly two year period of delay primarily resulted from confusion among magistrate judges regarding overlapping motions and an erroneous referral order from the federal judge in charge of the case. Two separate magistrates held in abeyance two separate sets of evidentiary motions until the federal judge decided appeals regarding portions of a suppression motion, the decision on which was not issued until January 19, 2011, six months after orally ruling on them. Other small delays occurred, as the government failed to produce discovery delays for 40 days, a court reporter failed to produce a transcript of a one day hearing for nearly 4 months and the main magistrate judge handling the case issued his report and recommendation on December 15, 2011, nearly seven months after the hearing and more than a year and half after Tigano had filed his motion.
Tigano then entered another nearly two year delay period as the result of unsuccessful plea negotiations. A large part of this delay was that the Government waited nearly a year to present Tigano with a written plea offer. This was in part because the AUSA prosecuting his case was involved in a major criminal trial and Tigano’s case had taken a back seat with the office. As the AUSA standing in acknowledged, this was definitely not the defense’s issue.
When the agreement was finally offered, it was presented as a two-for-one deal – both defendants had to agree to the plea in order for either of them to receive the deal.
Tigano rejected the deal. On August 1, 2013, Tigano’s attorney asked for an adjournment so she could try and convince him to take the plea. On September 20, the parties met to set a trial date. Both the court and the AUSA raised scheduling challenges due to congested calendars. On December 16, 2013, the parties met for a final pretrial conference for the trial scheduled the next day. The Court then delayed the trial again, in part to give Tigano time to consider a plea, noting that since he’d already spent some time in jail, waiting until January wasn’t going to materially affect anything.
On January 10, 2014, Tigano’s attorney filed a sealed motion for another competency evaluation of Tigano. Her reason was that Tigano was acting imprudently and not in his best interest by rejecting the plea deal and insisting on his right to a trial. She included a letter from a private psychologist who evaluated Tigano and concluded he was competent to stand trial and explicitly concurred with the two previous evaluations. The Government supported this motion. The Court granted the request, acknowledging that the basis for the exam was Tigano’s refusal to accept a plea.
As of March 4, 2014, the Marshall’s Service still had not transported Tigano for an exam. Another 15 day delay was approved at the request of the jail where Tigano was held. The Marshall’s Service appears to have lost track of Tigano for a while, and he next appeared in Court on July 30, 2014, where the third exam AGAIN held that Tigano was competent to stand trial.
During this period of limbo, Tigano filed a pro se motion for habeas corpus. 15 weeks later, the Federal Judge overseeing Tigano’s case denied the motion, because he refused to consider a pro se motion filed by a represented defendant.
On September 3, 2014, the parties convened for a pretrial conference, where it was determined Tigano would represent himself, with standby counsel. At an October 23, 2014 status conference, it was determined that his standby counsel would represent him after all.
On January 27, 2015, anticipating his retirement in March, the federal judge overseeing his case transferred Tigano’s case to another federal judge. Tigano’s trial finally began on May 4, 2015, 6 years, 9 months, and 26 days after his arrest. He was convicted four days later.
After reciting these facts, the Court turned to the history of the Speedy Trial right. It noted that the right has been recognized since at least the 12th Century and is incorporated in the Magna Carta. It was also included in the constitutions of the states before the ratification of the Constitution. It is so important; the courts have held that the Constitutional right to a speedy trial may not be waived.
It then turned to the 1972 Supreme Court case of Barker v. Wingo, which lays out a four part balancing test for determining if the right to a speedy trial has been violated.
The Courts look to the length of the delay, the reason for the delay, the defendant’s assertion of his right and prejudice to the defendant. These factors, the Court held, have no talismanic qualities – each case must be balanced individually.
The Court then examined each of these factors in turn. It noted that the length of the delay serves as a triggering mechanism, since there must be some delay before any balancing is necessary. Once a delay is established, the burden is on the government to prove that the delay was justified and that the right to a speedy trial was not violated. As noted earlier, Tigano’s nearly seven years of pretrial detention was the longest delay in the Circuit that the Court was aware of. In fact, the Government conceded that the length of delay cut in Tigano’s favor.
The Court then turned to the reasons for the delay. The Supreme Court instructed that different weights should be assigned to different reasons. Deliberate attempts to delay trial weight most heavily against the government, valid delays do not weigh in at all, and reasons of negligence or overcrowded documents are somewhere in the middle, because the ultimate responsibility for such circumstances must rest with the Government rather than the defendant. The Government has an affirmative duty to bring cases to trial and cannot delay for institutional reasons.
In this case, the Government contends that none of the delay is attributable to the Government, an assertion the court described as “incredible.”
The Court held that the reasons for the delay were largely due to 1) the needlessly repetitive competency exams, all of which found Tigano competent; 2) administrative delays; 3) the government’s failure to produce a written plea offer for nearly a year and its insistence on consolidating the case and plea bargain with Tigano’s father; 4) the court’s congested docket and failure to give this case priority; 5) the use of multiple magistrate judges resulting in confusion; and 6) defense counsel’s desire to delay the trial, in direct opposition to Tigano’s express wishes.
The Court charged the delay caused by the competency exams to the Government. It noted the truly remarkable fact that for both of the last two exams, the government acknowledged in open court that at least part of the motivation was Tigano’s assertion of his right to a speedy trial and his refusal to accept a plea. Given the lack of any problems with the first two exams, the Court determined it was error to send Tigano out for a third exam for refusing to accept a plea and charged those delays against the Government.
The Court also charged administrative delays, such as the Marshall Service’s failure to locate Tigano for his third exam or the court reporters’ failure to timely produce transcripts against the Government. Since it is not the defendant’s responsibility to monitor the speed of court reporters or the Marshall’s service provision of court-ordered transportation, it would be unfair to hold Tigano responsible for these delays.
Relying on an earlier Second Circuit case, the Court held that plea negotiations must also be counted against the Government. Here, it was particularly appropriate because it took the Government nearly a year to actually present a written offer to Tigano. The Court believed the District Court was irresponsible in not putting a time limit on plea negotiations, especially when Tigano had made clear from the beginning that he had no interest in a plea. The Court noted that time spent in plea bargaining is a gamble taken by the government regarding the speedy trial rights and is properly counted against the Government.
As for delays caused by the court’s congested docket, those are always counted against the Government and they were clearly a contributing cause to the delay here.
The magistrate judge who had been handling this case properly recused himself from the suppression motion, because he had been the magistrate to issue the search warrant being challenged. But rather than the District Court deciding the motion itself, it split the motions and sent them to two different magistrates, despite the fact that they involved the same set of facts. This led to confusion and a delay of nearly 2 years. While the Government was not deliberately dilatory in handling these motions, the Supreme Court has made clear that such neutral delays must be considered since the ultimate responsibility for such circumstances rest with the Government rather than the defendant.
Finally, the Court turned to the delays attributable to Tigano’s appointed counsel. She requested multiple delays to convince Tigano to accept a plea, because she was uncomfortable with his trial strategy and acceded to several requests by Tigano’s father for delays. The Court noted that a bedrock rule of professional conduct is that the decision to accept or reject a plea is ultimately a decision to be made by the client, not the lawyer. Because Tigano’s lawyer was acting in direct contravention of Tigano’s wishes, the Court felt it would be improper to count these delays against Tigano and so it declined to do so, although it noted that the normal presumption is that a defense attorney is carrying out his or her client’s chosen trial strategy. But that was not the case here.
The third factor is the Defendant’s assertion of the right. Here, Tigano adamantly, consistently, and explicitly raised his speedy trial rights at nearly every opportunity. The Government even observed that such repeated demands were part of the reason for the district court’s decision to have Tigano’s competency evaluated. Yet here, incredibly, the government argued that Tigano made no formal assertion of his right for purposes of the Sixth Amendment analysis. The Court dismissed this argument as implausible.
The Court noted that “Tigano requested his speedy trial so frequently and vociferously that it is simply inconceivable the Government was not ‘put on notice’ that this issue would resurface” if his rights were not respected. Here, the Court held that a defendant’s assertion of his speedy trial right – even though ignored or contravened by his own counsel – is the relevant fact for a Sixth Amendment analysis – the right belongs to the defendant, not his counsel.
Finally, the Court examined the fourth factor – prejudice to the Defendant. The Sixth Amendment is designed to protect three interests – 1) to prevent oppressive pretrial incarceration; 2) to minimize anxiety and concern of the accused; and 3) to limit the possibility that the defense will be impaired. While the last factor is the most serious, it is only one of three interests protected by the right. The Court held that affirmative proof of impairment of the defense is not required to find a violation.
Here, the Court found that Tigano was severely prejudiced in terms of the first two factors. He spent the entire pre-trial period incarcerated and he was held in local jails, which are not designed for long-term confinement. This type of detention is precisely the type of prejudice contemplated by the right to a speedy trial.
Tigano was also prejudiced as to the second factor – he repeatedly expressed his anxiety to the court as the primary motivation for his desire for a speedy trial.
Weighing the four factors, the Court reached the “inescapable conclusion” that Tigano’s Sixth Amendment right to a speedy trial was violated by his nearly seven years of pretrial incarceration. The reasons for the delay fell largely on the court and the government – the only appropriate remedy was to dismiss the case with prejudice.
Of all the cases examined so far in this podcast, this is by far the clearest and easiest. What happened to Joseph Tigano is a travesty of justice. Having to wait nearly seven years for a trial, after clearly and unambiguously requesting one at your arraignment, is unacceptable. To have to serve that time in pretrial detention, as opposed to being out on bail, is inexcusable. For these reasons, the Second Circuit was absolutely correct to dismiss the charges against Tigano with prejudice.
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