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Speedy Trial: Justices Consider Whether Pretrial Motion Must Delay Trial to Halt Speedy Trial Clock

Publication Date: 
March 01, 2011
Criminal Law Reporter - BNA
David McAuley

The Justice Department asked the U.S. Supreme Court at oral argument Feb. 22 to interpret the Speedy Trial Act in line with the majority of circuit courts that have held that the filing of a pretrial motion stops the speedy trial clock regardless of whether it affects the start of trial. The debate centers on what it means for a delay to "result[ ] from" a motion. (United States v. Tinklenberg, U.S., No. 09-1498, argued previous hit2next hit/22/11)

The act, 18 U.S.C. §§ 3161-74, generally requires that the trial of a defendant who pleads not guilty begin within 70 days of the filing of charges or an initial appearance before a judge, whichever comes later. Various periods of time are excludable from the 70 days, including "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion" under Section 3161(h)(1)(D).

The defendant in this case argued that his indictment should have been dismissed because his statutory speedy-trial rights were violated. One facet of his challenge concerned how to count certain days in the two weeks immediately prior to trial, when three motions were filed. Each motion was disposed of without any movement of the trial date, and neither the judge nor the parties sought to delay trial due to the motions. Nonetheless, the district court excluded from the speedy-trial calculation the period during which the motions were filed, pending, and resolved. Had it not done so, the trial would have commenced beyond the 70-day window.


Counsel for the defendant, Jeffrey L. Fisher, of the Stanford Law School Supreme Court Litigation Clinic, took issue with this interpretation, saying, "I think the ordinary meaning, in fact, the only meaning, of "delay" is a hindrance to progress or a postponement."

According to Fisher, "Our argument is there's two ways you can have delay: One is by the trial date simply being moved to accommodate the motion. The other … delay can also, in the ordinary English language, mean that the trial date was originally set to accommodate the motions." The government was proposing something much more dramatic: the exclusion of the time even if trial date was set without regard to the motions, Fisher argued.

Justice Sonya Sotomayor questioned Fisher's definition, saying, "It's not talking about the delay of the trial. It's talking about the computation of the start date for the trial. … Isn't only the Solicitor General's position consistent with that? It's telling you to take the periods of delay and compute the date the trial must start by excluding those. That's the language."

Fisher disagreed. "I think starting with the very title of the Act we're talking about, the Speedy Trial Act, and the idea of the words 'delay resulting from' can only sensibly mean delay resulting from trial," he insisted. "The only way to give meaning to the operative words in the statute" is to say that delay results "if the trial itself is postponed, or if the trial is set in a way that accommodates the motion," he maintained.


Seeking to ease concerns regarding the complexity of what he was suggesting, Fisher noted, "I think our rule is not as difficult to administer as you think it might be." This has been the previous law in the Sixth Circuit for 17 months, yet prosecutors "haven't pointed to a single dismissal as a result of it," he said.

Workability Cuts Both Ways

Fisher also made the point that "the Solicitor General's rule isn't so easy, either, unless you simply cease caring at all about the Act. You could have a perfectly administrable rule that says every single motion, no matter what the circumstances, tolls the clock."

He used the facts of this case to illustrate the problem: "There were 14 days before the trial was going to happen. Yet there were only ... 10 days left on the clock. So if no motions had been filed, unquestionably we would have a Speedy Trial Act violation. So the government's whole case hinges on the fact that because it filed this purely administrative motion to bring a gun into the courtroom, a motion I might add that … the judge had already told the government was going to be granted, ... and one other administrative motion, then the Speedy Trial Act isn't violated."


Fisher replied, "I think that might be an argument for writing the Speedy Trial Act a different way."


Matthew Roberts urged the court to ignore that argument and to base its decision on the question on which the circuits are split, saying, “The reason that this issue is not of any ongoing importance is that the rules have been amended." Fisher countered that the issue was preserved and that he could give many examples from the U.S. Code making the point that "when Congress wanted to exclude weekends and holidays consistent with the traditional rule, it felt duty bound to say so in the U.S. Code, and when it hasn't, it wants simply calendar days," as provided in the Speedy Trial Act.

Transcript of oral argument at