Saturday, March 28, 2020

GateHouse: DOJ seeks to curtail rights during health emergency

Matthew T. Mangino
GateHouse Media
March 27, 2020
In the face of a surging COVID-19 pandemic, the U.S. Department of Justice has asked Congress for the ability to detain people indefinitely without trial, to extend the statute of limitations in criminal cases and limit the constitutional right to confrontation.
There is no question that the nation is facing an unprecedented emergency, but now, especially now, is not the time to ignore the U.S. Constitution.
At stake are three fundamental rights that are afforded all persons accused of a crime - the right to a speedy trial, the government’s responsibility to file charges within a reasonable, statutorily established, period of time, and the right to confront one’s accuser.
A defendant’s right to a speedy trial has constitutional and statutory underpinnings. The Sixth Amendment provides, through the Speedy Trial Clause, that an accused formally charged or detrained pretrial is entitled to have his case heard with reasonable diligence. Rule 48 of the Federal Rules of Criminal Procedure grants trial courts discretion to dismiss cases that are not brought to trial promptly.
The reason for a speedy trial rule is to prevent the government from arresting an accused and letting him or her languish in jail without being proven guilty. During this health emergency it is important to bring pretrial detainees to trial as quickly as possible or let them out of jail until trial.
The Constitution grants people habeas corpus which gives the accused the right to appear in front of a judge and ask to be released before trial. Adopting Attorney General William Barr’s recommendations would essentially suspend habeas corpus indefinitely until the emergency ended. However, Article I, Section 9, Clause 2 of the U.S. Constitution provides, “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion ...” A national health emergency is not listed as a reason to suspend habeas corpus.
Federal statutes of limitations provide a time frame within which charges must be filed. For instance, in state court the statute of limitations might be two years for a misdemeanor theft. If charges are not filed within two years of the date of the crime the charges are forever barred.
Such limitations are a product of the Fifth Amendment Due Process Clause. The purpose and effect of a statute of limitations is to protect defendants. The statute is based on the premise that if the government has a case they should pursue it with reasonable diligence. A delay could result in the defendant losing evidence necessary to disprove the claim; and litigation of a long-dormant accusation may result in an injustice.
The justification for extending the statute of limitations is that due to the health emergency the police are too busy and the courts may be closed - so the statute should be extended to pursue untimely cases. If those cases were butting up against the statute before the emergency, they have already been delayed for nearly two years or five years or longer depending on the alleged criminal conduct.
Instead of a blanket extension, the court should conduct a hearing to determine if prosecutors used due diligence to bring the case to trial before the health emergency and then, as swiftly as possible, after the emergency.
Finally, the Sixth Amendment guarantees the right to confront the witnesses against the accused. This right is known as the Confrontation Clause. This clause guarantees criminal defendants the opportunity to face the prosecution’s witnesses in the case against them and dispute the witnesses’ testimony.
The right to confront witnesses face-to-face is a fundamental right for those accused of a crime. The DOJ wants to use videoconferencing to permit a defendant in jail to participate in a proceeding remotely. Remote hearings are already being utilized for bail and extradition, but not for “critical stage” proceedings.
The idea of conducting a critical stage hearing without the defendant being present is extreme. In fact, some states had to amend their state constitutions to permit child victims to testify by video conferencing - outside the presence of the defendant.
Congress needs to proceed with caution. Setting aside fundamental constitutional rights for any reason is dangerous.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
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