Recently in Washington D.C. four defendants’ lawyers made a motion seeking postponement of the date by which defendants were directed to present motions. Washington D.C. is notorious for its delays. The lawyers claimed that the prosecutor had not furnished the defendants with certain evidence seized in Colombia, as required. Thus the defense lawyers had not had the opportunity to review the evidence and determine whether or not to file motions.
In requesting a postponement the defense lawyers played right into the government’s hands. The only people to suffer from the delay are the defendants, who await trial in jail. The rule is that if one defendant makes a motion, the speedy trial clock is stopped for all defendants.
If a prosecutor does not make evidence available when he is supposed to, it is the prosecutor who should be sanctioned. The judge may reprimand him. The judge could even preclude that evidence from being presented, though such a drastic sanction would be rare. But here, no sanction is even sought by the lawyers. Instead the lawyers simply ask for time because the prosecutor did not comply.
The prosecutor is not adversely affected. Indeed, he is helped because it relieves him of having to act sooner rather than later, allowing him to attend to his other cases. A prosecutor is affected by pressure to go to trial, to answer motions and to work out deals. Seeking a delay is to relieve that pressure. The lawyers involved in the case should simply state, “We are ready for trial or for a reasonable plea bargain.”
The judge is also satisfied with the delay because the judge has a busy calendar and thus is relieved from acting upon motions, for the time being.
And yet if the evidence is in Colombia and pertains to seizures in Colombia, there are no motions to be made. Motions generally have to do with suppressing or precluding evidence from being introduced at trial. Such motions are based on illegal searches and other violations of the U.S. constitution. But the U.S. constitution does not apply to actions taken by foreign agents in a foreign country. In fact, the U.S. constitution in some cases does not even apply to actions taken by U.S. agents in foreign countries
For example, in the case of U.S. v. Ventura DEA agents went into a doctor’s home in Mexico and seized evidence. The court conceded that the U.S. agents performed the search and even conceded that the search was illegal. Nevertheless, the court held that the fourth amendment of the United States constitution guaranteeing the right to be free from unreasonable search and seizure did not apply to foreign searches of foreign nationals, no matter who did the searching, unless the conduct of the police “shocked the conscience.”
Even if some of the evidence could trigger motions, they should be made when and if the evidence ever surfaces. The judge is a reasonable man and would hardly allow for the receipt of late evidence to be considered without giving the defendants an opportunity to challenge it. So what has the defense accomplished except to delay the proceedings unnecessarily?
Some of you may not be aware of the speedy trial rule. The speedy trial rule states that a trial must be commenced within 70 days from the date of arrest. This rule is subject to exceptions, the most common one being the filing of motions. If a defense lawyer or prosecutor makes a motion, the speedy trial clock is stopped (“tolled”). Once the motion is decided, the clock resumes ticking its way to seventy days. So if a defense lawyer does not make any motions and the prosecutor does not make any motions, the seventy day clock just keeps on ticking.
Some motions must be made to ensure effective representation, but it is a cardinal sin to unnecessarily stop the clock from ticking when there is no basis to do so. It favors the prosecutor who needs time to prepare his case and almost always results in having defendants, tired of constant delays, cooperate. So for those of you who are waiting to have your cases heard as scheduled, forget it. Your time has been wasted.