In United States v. Ferreira today, the Sixth Circuit held that a 35 month delay caused by gross government negligence in the face of the defendant’s pro se assertion of his speedy trial rights violated the defendant’s speedy trial rights and necessitated dismissing the indictment with prejudice. A previous published opinion said that 5 years was enough, a previous unpublished opinion said that 3 and a half years was enough and a previous published opinion said that 2 years was not enough. So the line is moving in the right direction.
The issue in this case was whether to apply a presumption of prejudice to a 35 month government delay. Speedy trial analysis is easy when the government acts in bad faith or the delay causes identifiable prejudice to the defendant (e.g. a key defense witness dies or exculpatory evidence is lost or destroyed). The problem is that in the real world, cases rarely involve such easy determinations. Instead, cases most often seem to involve government negligence combined with a fear of unidentifiable prejudice. As the Supreme Court put it, “time’s erosion of exculpatory evidence and testimony can rarely be shown.” In other words, how do you prove what a witness would have remembered had the trial happened five years ago? How do you prove what evidence the defense team might have turned up? The answer is that you have to presume prejudice when the delay is long enough, and in this Circuit, 35 months is apparently long enough, at least when the delay is solely the government’s fault.
The dissent takes issue with this test, correctly pointing out that it has turned into a numbers game where various circuits require anywhere from 2 to 5 years for the presumption. The dissent would require that “before applying the presumption, we should at least ask whether there is reason to believe that the defendant has suffered significant, albeit unidentifiable, prejudice as a result of the government’s delay in bringing him to trial.” What the dissent fails to explain is how a defendant could possibly present evidence of an unidentifiable fact.