Central District chief judge seeks to suspend Speedy Trial Act deadlines for a year due

Chief Judge Virginia A. Phillips of the Central District of California asked the 9th Circuit Monday to allow her to suspend criminal trials for up to a year.

Phillips' letter to the 9th Circuit Judicial Council seeking to suspend Speedy Trial Act deadlines and extensions comes days after Chief Judge Larry A. Burns of the Southern District was granted a similar request.

Phillips cited, among other things, 10 judge vacancies on the Central District bench and an anticipation of case backlogs once the coronavirus crisis is over. President Donald J. Trump has nominated seven candidates to the Central District. Three have cleared the Senate Judiciary Committee and are awaiting a vote by the full Senate.

Last month, Phillips suspended jury service for all civil and criminal trials, first until April 13 and then, as the crisis wore on, until May 1.

Neither Phillips nor Judge Sidney R. Thomas, chief of the 9th U.S. Circuit Court of Appeals, could be reached Monday for comment.

The requests from Burns and Phillips were brought under 18 USC 3174 and appear not to apply to in-custody defendants.

"If Phillips is requesting this year-long suspension of the Speedy Trial Act, it means it only applies to defendants out on bail," said criminal defense attorney David S. McLane, partner at Kaye, McLane, Bednarski & Litt LLP.

McLane said Phillips' request is ambiguous about whether it would apply to those in custody who aren't yet convicted, which could lead to vigorous civil rights challenges.

"What if the pandemic resolves itself in the next month or so?" he said. "Why not do it piecemeal and assess the situation? But Judge Phillips has very solid reasons in her request.... The caseload of a Central district judge is twice the national average. "

The Northern and Eastern districts also suspended criminal and civil trials until May 1, but neither have declared judicial emergencies to extend those orders.

Last week, Burns was granted his judicial emergency extension pausing trials in the Southern District until April 17, 2021.

U.S. Attorney Robert S. Brewer of the Southern District said Friday he believes the 9th Circuit's order will have a limited impact on how the Southern District operates.

"The order does not extend the chief judge's temporary suspension of jury trials, but merely invokes an emergency provision of the Speedy Trial Act to extend the time period for bringing a case to trial from 70 days to 180 days," Brewer said. "All other Speedy Trial Act deadlines remain in place, and individual judges continue to retain discretion to extend those deadlines on a case-by-case basis, for the ends of justice."

Ultimately, it'll be up to Burns to decide when criminal trials will resume, Brewer said.

Such requests have only been approved on three occasions to avoid imminent dismissals of criminal cases as a sanction for non-compliance since the Speedy Trial Act was passed, according to the order approving Burns' request.

The 6th Circuit invoked the emergency provision for the Western District of Tennessee shortly after the act passed in 1981. The 2nd Circuit approved an emergency in 1981 for the Eastern District of New York, citing the district's burgeoning case load and calendar congestion. In 2011, the 9th Circuit declared an emergency for the District of Arizona.

Former federal prosecutor Neama Rahmani, who is now a civil litigator with West Coast Trial Lawyers, called the one-year suspension of the act "almost unprecedented," and might leave incarcerated defendants in custody, unable to claim their rights.

"Essentially, both Phillips' and Burns' requests don't really say that this suspension applies only to those awaiting trial, in custody versus out on bond," said Rahmani. "There's no language clarifying that. No trials are happening at all. If someone bonds out, they won't be going to trial in 70 days or up to a year, it doesn't matter who you are. Regardless of the language, this suspension pertains to everyone."

Rahmani also predicted the suspensions would be challenged in the Central and Southern districts by federal defenders or private defense counsel.

"Other jurisdictions in the 9th Circuit will seek to suspend trials too and we expect an outcry," Rahmani predicted. "Those that haven't been convicted should at least be released on bond. You can't detain them indefinitely, so courts should issue a notice to appear, then have them show up for their court dates until you're ready to resume trials."

Rahmani predicted this could lead to the suspension of civil trials, as well.

While the act doesn't pertain to civil matters, "this is the step to postpone any and all trials for a year in the future," he said.

"By getting this request and approval, the next step is civil," said Rahmani. "You don't ask for this emergency order unless you're ready to suspend civil trials too."

Kara L. Hartzler, attorney with the Federal Defenders of San Diego, said Friday the severity of the order and its implications for due process confirms the need for the U.S. attorney to halt the pretrial detention of new, non-violent arrestees, and urged prosecutors to issue notices to appear instead.

The U.S. attorney also should agree to the release of pretrial defendants on their own recognizance, and reconsider charging, sentencing and dismissal decisions in light of the public health risks associated with the continued detention of non-violent offenders, she said.