Friday, March 19, 2010

Today's Summary---DNA and Speedy (or Not) Trial

Some interesting movement today in the Circuit. Thanks, as always, to our AFPDs for their summaries.


Direct appeal of SRV case. Published.

The Circuit Court affirmed the district court’s finding of a violation despite never making such a finding on the record. More importantly, they found that providing a DNA sample under 42 U.S.C. § 14135a(d) does not violate Ex Post Facto standards. This is consistent with other Circuits, but represents the first published opinion here in this Circuit.



Direct appeal. Published.

In a follow up to the Circuit’s Tinklenberg opinion from last fall, the Court finds the Speedy Trial Act violated when the government failed to timely indict the defendant. Much of the delay was caused by delay in transporting the defendant for his forensic psychiatric evaluation (almost two months where the statute limits transportation time to 10 days generally).

Two counts of the indictment were required to be dismissed, but the Court leaves it to the district court to decide if it is with or without prejudice.

As a result of the dismissals, the case was also sent back for re-sentencing of the defendant, who had received 382 months (in a complicated guidelines case as well). The Circuit Court left it to the trial court to decide what, if any, effect the reversal might have on the sentence.

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