United States District Court, D. Nevada
KENT J. DAWSON, District Judge.
Before the Court is Defendant Markette Tillman's ("Defendant") Motion to Dismiss for Violations of Defendant's Speedy Trial Rights (#977). The Government responded (#979) and Defendant replied (#981). Defendant also filed an errata to his reply (#985).
Defendant was indicted in late October, 2008 (#1). As all parties freely (and frequently) admit, this is a complex case. Defendant stands indicted on 19 counts including Conspiracy to Engage in Racketeer Influenced Corrupt Organization, Violent Crime in Aid of Racketeering, Use of Firearm During a Crime of Violence, Conspiracy to Engage in Drug Trafficking, and Possession with Intent to Distribute Controlled Substance (#652). A review of the docket in this case reveals that Defendant stipulated or moved to continue the date of trial on at least seven (7) prior occasions, not including oral motions for a continuance made during hearings (##112, 182, 204, 503, 640, 951, 963). It must also be noted that these motions both immediately preceded and continued after Defendant's first motion to dismiss for violation of speedy trial rights (#956). Defendant further moved or stipulated to at least thirteen other extensions of time for various pretrial matters (##502, 587, 596, 635, 637, 643, 646, 685, 691, 696, 698, 710, 731). Defendant has also filed more than 35 substantive pre-trial motions in this matter. It should also be noted that according to Defendant, "the first two years of this case" were spent "engaged in an intensive death penalty mitigation investigation." (#977 at 3 ll. 9-11).
Near the end of February, 2013, former Chief Judge Robert C. Jones disappointed Defendant's long-time attorney John R. Grele for various unethical practices including: extorting the court (#810 at 55), attempting to stage a § 2255 challenge (#810 at 55), and delay (#810 at 58). Mr. Grele has appealed these actions to the Ninth Circuit (#824), however no judgment has issued. It is undisputed that this disappointment forced Defendant to choose between proceeding to trial with likely under-prepared counsel and seeking another continuance.
Defendant began asserting his right to a speedy trial on February 27, 2013. When faced with the disappointement of Mr. Grele and the appointment of a new attorney, Defendant asked that Mr. Grele be kept on; "I don't want to have to sit in this detention center for another year and a half." (#801 at 48). Defendant much more strongly asserted this right in June of 2013. "I'm ready to go to trial. I don't even want to wait until November. I was ready to go in April. I'm ready to go in September. I don't want to waive my speedy trial right. I'm ready to go to trial." (#932 at 20-21). The Court also notes that the present motion is Defendant's second motion to dismiss based on speedy trial rights. (##956, 977).
Lastly, the Court acknowledges the death of potential witness Amelia McCurdy. Both sides allege that their case has been harmed as a result of her death (#979 at 13 ll. 21-22; #981 at 9 ll.3-4).
A. Legal Standard
The Court is required to use a "balancing test, " weighing the conduct of both the prosecution and the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). As noted by the Supreme Court, such an approach compels courts to adjudicate speedy trial issues "on an ad hoc basis" centered on four factors. Id . at 530. These factors are 1) length of delay, 2) reasons for the delay, 3) defendant's assertion of his right, and 4) prejudice to the defendant. Id . at 530.
Length of delay is a "triggering mechanism", but is a soft standard as "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Id . at 530. As for the reasons for the delay, deliberate delays to hamper the defense are weighted heavily against the government, while "neutral" reasons such as negligence or overcrowded courts are of less weight but count against the government. Id . at 531. Valid reasons "justify appropriate delay." Id . at 531. As for a defendant's assertion of his speedy trial right, it is "entitled to strong evidentiary weight [but].... failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Id . at 531-32. Prejudice is assessed in light of a defendant's interests in 1) preventing oppressive pretrial incarceration, 2) minimizing anxiety and concern of the accused, and 3) limiting the possibility that the defense will be impaired. Id . at 532. Of these three, the last is the most serious. Id . at 532. However, claims of prejudice must be accompanied by nonspeculative proof. United States v. Corona-Verbera, 509 F.3d 1105, 1113 (9th Cir. 2007).
Lastly, the Supreme Court has emphasized the difficult and holistic nature of the task before the Court:
We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be ...