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 www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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 www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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