Some of those who lost limbs as punishment for not killing their own families and joining Taylor's army.

We started yet another trial this week, and it’s looking like it will continue into the first week of April.  Not our longest trial ever, but fairly lengthy for a state case.  But at least it’ll be over before the trial of Raj Rajaratnam, which also began this week, and which is expected to last through the beginning of May.

But these are nothing compared to the trial of Charles Taylor, former head of Liberia.  This is the same guy who ran for election with the campaign slogan (not making this up): “He killed my ma / He killed my pa /But I will vote for him.”  Probably a thinly-veiled threat that those who didn’t vote for him would get the same treatment.

Taylor first came to prominence in 1980, when he took part in the coup led by Samuel Doe.  Whose government he soon ripped off in a massive embezzlement scheme.  He fled to the U.S., got picked up and thrown in prison, and made a daring prison escape before he could be extradited in 1985.  He high-tailed it to Libya and the protection of Muammar Gaddaffi, and went through some terrorist training camps.

With funding from Gaddaffi, he organized a rebellion against the Liberian government in 1989.  The civil war would rage for seven years, utterly destroying the country.  Slaughter, fear and lawlessness made Liberia the classic “failed state.”  There was no government, only destruction.  (A State Department official we knew at the time said it was no good trying to reach anyone in charge there.  ”The phone’s just going to ring and ring, because there’s probably bullets flying through the office and they’re hiding under their desks.”)  The word “horrifying” doesn’t begin to describe what was going on throughout the ’90s there.

In 1997, Liberians elected him president in the vain hopes that this would avoid any more civil war.  But within two years, it was raging again.

But none of this is what he got in trouble for.

Apparently, Liberia wasn’t exciting enough, so he got involved in the horrors over in Sierra Leone.   During his own civil war, Taylor took advantage of Sierra Leone’s instability to found a rebel group (funded with Sierra Leone diamonds, and manned with conscripted children) to launch a civil war in Sierra Leone.  Because the government there was so corrupt, it had no real resources, and there was pretty much no economy.  So they couldn’t really fight back.  Still, they wound up having their own brutal civil war throughout the 90s.  A large Nigerian-led UN force finally intervened and restored peace, finally disarming the rebels in 2004.

Meanwhile, the Special Court for Sierra Leone managed to file an indictment against Charles Taylor for war crimes and crimes against humanity, based on what he did in Sierra Leone.

He was indicted in 2003.

His trial just ended today.

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Even if you take into account the fact that he hid out in Nigeria until finally being arraigned in 2006, and the fact that the trial proceedings themselves didn’t really begin until 2007, we’re still talking a four-year trial.  That’s a long time to hear a case.

And the trial isn’t really technically over, anyway.  Just the evidentiary part is over.  The judges are going to take the next several months before rendering their verdict.

This thing ain’t ever going to end.

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Whether he’s guilty or not — and we haven’t seen the actual evidence that was admitted — this kind of delay does not serve justice.  If he’s innocent they can’t prove him guilty, then this excessively long process amounts to an unjust incarceration.  And if he’s guilty, then the process only serves to delay justice to the people of Sierra Leone, and the vast separation between the act and the punishment severely dilutes any purpose such punishment is expected to achieve.  (And it’s not like the European court is going to execute him — he’d just serve his time in a British prison.)

These are a couple of the policies underlying the U.S. guarantee to a speedy trial under the Sixth Amendment.  ”Justice delayed is justice denied” may be a worn-out phrase, but it’s no less true for being trite.  Nobody’s interests are served by an extended proceeding like this.  Forget the fact that many of the delays were caused by Taylor himself being a buffoon, boycotting the court, and the like.  The vast majority of the delay was systemic, and that’s just wrong.

The fact that the SCSL indicted him presumes that they had enough evidence to convict him at trial.  One does not indict a case without some certainty of victory in court (unless one is either a blithering idiot or a scoundrel).  There is little reason to suspect that the fine folks at the SCSL are either blithering idiots or scoundrels.  So one must presume they were ready to prosecute Taylor for war crimes back in 2003.  There is no reason on Earth why they couldn’t have presented their case promptly and thoroughly when the trial began in earnest back in 2007.  The prosecution’s case took two years.  Then there was a lengthy delay.  Then Taylor’s case lasted a full year.  His own testimony lasted half a year.

We’re sorry, but no witness needs six months to testify about anything.  No subject is so complex or voluminous that it takes six months to spell it out.  That’s just too long.

Taylor wrapped up his case in November.  Then nothing happened for a few months until closing arguments began in February.  Why anyone involved in this case needed three months to prepare closings, why they weren’t being prepared throughout the trial and ready to go a few days or a week later is astounding.

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Well, as of today, both sides are finished.  There’s nothing left now but to await the judges’ verdict.  We’re sure they’ll get around to it one of these days.

Extortion is a kind of threat.  A threat that’s so bad, it’s criminal.  For a threat to be criminal extortion, it needs to be of a kind to make someone do something against his will, that’s adverse to his own interests.

Threatening to kill a child if the parents don’t give you money, for example, would be extortion.  So too would be a civil lawyer’s threat to file criminal charges — even if such charges are warranted — if the other side doesn’t pony up with a settlement.  Another example is when a government official threatens to use his position to do something he’s perfectly entitled to do in the first place, unless the victim does him a favor first.

There are lots of examples of extortionate behavior.  But these last two examples demonstrate that the threatened action doesn’t itself have to be against the law.  The civil lawyer could go ahead and press criminal charges, but threatening to do so is against the law.  Ditto for the government official whose threat to merely do his job is a crime.  The point isn’t whether the threatened action is itself criminal, but whether the threat causes such fear as to override someone’s free will.

This is basic stuff.  Not exactly cutting-edge law here.

So how come nobody seems to have litigated the Queens (New York) District Attorney’s practice of extorting speedy trial waivers from defendants?

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In New York, there are a few different kinds of speedy trial rules.  One is the classic constitutional speedy trial rule, also embodied by statute in CPL §30.20.  It’s almost never used, because before any delay is likely to have impaired the defense in a typical case, CPL §30.30 will have kicked in.  That one, in a nutshell, calls for dismissal of a felony after roughly 183 days have counted against the People since the initial arraignment.  Delays asked for or consented to by the defense don’t count.  A third analogous rule is the “speedy indictment” rule of CPL §180.80, which says a defendant who hasn’t made bail must be indicted within 144 hours of his arrest, to the minute, or else he must be released from custody on his own recognizance.

CPL §§30.30 and 180.80 are there to make sure the prosecution does its job.  If a case has had more than 6 months of delay, and it’s the People’s fault, then the prosecution didn’t do its job, and the case gets dismissed.  If the People haven’t gotten their act together to secure an indictment against someone who’s sitting in jail, and this goes on for 6 days, then the prosecution didn’t do its job, and the defendant gets released for the rest of the case.

The policy is simple: we don’t want people rotting in jail while waiting to be formally accused of a crime, and we don’t want people’s lives on hold forever while awaiting trial.

The Queens DA’s office has come up with a workaround, to avoid having to play by these rules.

Their office policy is to require defendants to waive the CPL §§30.30 and 180.80 requirements, to enable the office to “investigate” the case more thoroughly before presenting it to the grand jury.  A defendant who does not waive these rules, the policy goes, will not be offered any plea bargain.

They’re threatening not to do their job right, unless the defendant first agrees they don’t have to do their job right.  How is this not extortion?

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Now, no defendant is entitled to a plea bargain.  It’s not a right, it’s not a guarantee, and it’s not even a privilege.  But the chance for a plea bargain — especially in the busy dockets of New York City — is certainly a fair expectation.  There is mutual benefit to all concerned: the prosecution doesn’t have to waste time and resources trying a case it didn’t need to; the courts can handle more cases without breaking the bank; and defendants get a disposition that satisfies the interests of justice without subjecting them to the higher sentence contemplated by the legislature.  The legislature countenances this practice, explicitly specifying what kinds of plea bargains are allowed in a given case.  Justice is served, all around.  And it’s the norm, the routine.  It’s a fair expectation, in almost every case.

There certainly are times when a plea bargain is not appropriate.  The most common example is when the hearings and trial have already begun.  Once the People have done all the preparation for trial and have started putting on witnesses, they don’t gain a whole lot from any plea deal. 

Another good reason not to offer a plea is when the defendant has testified in the grand jury and said he didn’t commit the crime.  There’s no reason to penalize a defendant who testified that he did do it, but threw himself on the mercy of the grand jury — that’s perfectly fine.  But a defendant who says he didn’t do it is either telling the truth — in which case he’s innocent, and it would be unethical for a prosecutor to induce an innocent person to plead guilty by offering a lighter sentence — or he perjured himself and is undeserving of any beneficial treatment.

When a prosecutor tells a defendant that he will not get a plea offer if he testifies in the grand jury that he didn’t do it, that’s nothing more or less than a fair warning.  It’s not only appropriate, it’s practically required as a matter of professional ethics.

Telling a defendant that he will not get a plea offer unless he waives his statutory rights to speedy indictment and speedy trial, on the other hand… That’s extortion, pure and simple.

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So we’ve had some clients who had done this Queens waiver with prior counsel.  (Aside: The vast majority of our clients come to us mid-case, after losing faith in their original lawyers.  It’s nice, but it also makes us wonder why they didn’t just come to us first.  But that’s a topic for a whole ‘nother blog post.)  One is a strictly routine, run-of-the-mill case, yet it took the Queens DA’s office 15 months to get off their duff and take it to the grand jury. 

That struck us as excessive, so we analyzed whether there might be a speedy-trial violation here.  The waiver sure seemed extorted, so it seemed like an argument worth raising. 

But wait a second.  This has been the Queens DA’s policy for some time now.  One would think it had already been litigated.  We enjoy this stuff, but there’s no point wasting client dollars just to re-invent the wheel.

But no.  It doesn’t seem to have been litigated.  At least there aren’t any written decisions out there on this topic that we can find.  And nobody we’ve asked — including current Queens DA personnel — seems to be aware of any cases on point.

That’s just weird.  Sure, not every defendant is going to have a problem with this.  And defense lawyers who advise their clients to execute the waiver are not often going to claim their clients were extorted.  But even so, we can’t be the first to raise the issue.

Oh, we’ve raised it now.  And it wouldn’t be our first case of first impression, by a long shot.  But it’s just weird that nobody’s already called the DA’s office on this completely wrongheaded policy.

So we’ll ask our readers: What do you think about this?  Is the Queens DA doing anything wrong by conditioning plea negotiations on a waiver?  Or are we missing something here?

The Supreme Court ruled today that defense attorneys assigned by the state are not government actors, merely because the government assigns and pays them. They are attorneys for the defendant, and their actions are actions of the defense, not the government.

This seems like a no-brainer. Every defense attorney knows that his obligations are to his client, regardless of who is paying the bill. But apparently the Vermont Supreme Court needed to be reminded of this fact by a 7-2 decision of the Supreme Court.

Michael Brillon was arrested in 2001, and had at least six different lawyers over the next three years, before finally being convicted after a jury trial and sentenced to 12-20 years. Before trial, Brillon moved to dismiss for speedy trial violations.

The trial court said the delay was caused by Brillon, and denied the motion. The Vermont Supreme Court reversed, saying that at least two of the three years should be charged against the state, because those delays were caused court-appointed defense attorneys. The remaining year, where delays were caused by retained counsel for the defense, was not chargeable against the state.

Writing for the majority in Vermont v. Brillon, Justice Ginsburg stated that the Vermont Supreme Court’s error was in thinking that assigned counsel are state actors in the criminal justice system. Assigned counsel, just like retained counsel, act on behalf of their clients, so delays they seek are ordinarily attributable to the defense.

The Vermont court had tried to assess whether the delay was to be blamed more on the government or on the defense. Because assigned counsel were paid by the government, Vermont felt that they were government actors, so their delay should be charged to the government. But the Supreme Court was obliged to point out that an attorney is the defendant’s agent, regardless of whether the attorney is privately retained or publicly assigned.

This is such a fundamental point, it is amazing that it got this far. Justice Ginsburg took the time to explain that Vermont’s error was such a fundamental misapplication of Barker v. Wingo that the Supreme Court had to step in to correct it.

Justice Ginsburg did leave open the possibility for public defender delays to be chargeable against the state, but only when such delays are caused by a “systemic breakdown” in the public defender system, some sort of institutional problem actually attributable to the government. That wasn’t the case here.

Justices Breyer wrote a very interesting dissent, in which Justice Stevens joined, highlighting some of the unspoken realities of how the Supreme Court works. They did not disagree with the ruling itself, but rather believed that certiorari had been improvidently granted. The issues turned out to be not as clearly defined as originally presented, and there were ambiguities in the Vermont Supreme Court’s decision, so that it did not necessarily misapply Barker v. Wingo unless one wanted to read it that way. Justice Breyer basically said the Court accepted and decided this case because the majority justices wanted to, so very badly.