BEE WHO OF AMER. JAMES A. PLAISTED: JAMES PLAY SID ON BHEE HALF OF ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS OF NEW JERSEY. MICHAEL C. MELLON: GOOD MORNING
MIKE WELL KEL MELLON ON BEHALF OF STATE. KEN KEN CALM MEES YAK ATTORNEY GENERAL APPEARING
ON BEE AVENUE. CHIEF JUSTICE RABNER: I'M GOING TO SKUG THAT YOU ALL TRY
TO FOCUS TO THE EXTENT YOU CAN WHETHER PENDING MOETHSS TOTALED THE WEREN'T 80-DAY CLOCK,
NOT RESTRICT ARGUE THE MENTS TO THAT ISSUE BUT I WOULD ASK YOU MA THAT PART OF YOUR
PRESENTATION. MR. AVIDAN. SHANE D. AVIDAN: GOOD MORNING, YOUR HONOR'S
AND MAY IT PLEASE THE COURT. I'D LIKE TO RESERVE 5 MINUTES FOR REBUTTAL, IF NECESSARY.
CHIEF JUSTICE RABNER: ALL RIGHT. SHAKEN SAN ALL DEFENDANTING ARE INTERSTATE
DETAINERS HAVE PARTICULAR FLEED FOR A SPEEDY TRIAL AND FOR REASONABLE CERTAINTY REGARDING
THE DATE OF THEIR RETURN, ARE THE PAINTERS CREATE UNIQUE PROBLEMS FOR PAROLE PRISON PROGRAMS,
SECURITY STATUS, CONCURRENT SENTENCING AND THE PRISONER IS BASIC ABILITY TO PLAN OR IMAGINE
FOR A FUTURE AFTER THEIR RELEASE. THE 10 TER STATE AGREEMENT ON DETAINERS P IAD REQUIRES
ARE THE DEFENDANTING "BROUGHT T TRIAL WITHIN 180 DAYS AFTER THE PROSECUTOR RECEIVES HIS
I.E. D DEMAND. TIME CAN BE EXTENDED IN ONLY THREE CIRCUMSTANCES: FIRST,
TIME IS AUTOMATICALLY TOLLED WHILE THE PRISON IS "UNABLE TO STAND TRIAL" SECOND THE COURT
MAY GRANT A DISCRETIONARY REASONABLE OF NECESSARY LENGTH FOR GOOD CAUSE SHOWN IN OPEN
COURT AND THE THIRD IS ESCAPE FRR CUSTODY. OF THE REMEDY FOR MIFTH I.E.
D DEADLINE IS DISMISSAL WITH PREJUDICE. IN THIS CASE, THE DEADLINE WAS AUGUST 22ND, 2018,
AND THAT DEADLINE WAS MISSED. THERE'S 4 POINTS THAT I WILL MAKE TODAY IF
THERE'S TIME BUT I WILL FOCUS FIRST AND THE MOTION TIECHL ISSUE. BUT THE CRUX OF THIS
CASE IS HOW TO INTERPRET THE COMPACT AND MOST IMPORTANTLY IT'S PHRASE UNABLE TO STAND
TRIAL. AND UNDER FEDERAL LAW, THE I.E. D'S MEANING IN 1957 WHEN THE I.E. D ENTERED INTO
FORCE IN THE FIRST TWO STATES. THOSE PHRASES WERE ALREADY OF ESTABLISHED LEGAL TERMS
OF ART WITH COMMON LAW MEANINGS THAT WERE CONTROLLING. THE TERM UNABLE TO STAND TRIAL
MEANT THE DEFENDANT LACKED THE ABILITY TO MAKE OR ASSIST WITH HIS DEFENSE GENERALLY DUE
TO A LACK OF MENTAL CAPACITY, BUT SOMETIMES ALSO DUE TO POOR PHYSICAL HEALTH. NEITHER
THE STATE NORT ATTORNEY GENERAL HAS CITED ANY CONTRARY EVIDENCE REGARDING THE ESTABLISHED
MEANING OF THE OF THESE FWRASZ, CIRCA 1957. RATHER, THEIR MAIN RESPONSE TO BE STABBED
MEANING IS ESTABLISHED MEANING IS IT IS TOO FAVORABLE TO DEFENDANTS IN THEIR VIEW, BASED
ON RESULTS ORIENTED POLICY ARGUE. THE, THEY ASK THIS COURT TO REWRITE THE I.E. D TO ADD
AT LEAST 16 NEW EXCEPTIONS FOUND IN THE FEDERAL SPEEDY TRIAL ACT OR S T A. 43 STATES
HAD ENACTED THE I.E. D FRYER 1975 AND CONGRESS PASSED THE S T A INCLUDING THIS STATE IN
1958. F T A TO NOT AM THE I.E. D WITHOUT THEIR COULDN'T SEN AND DID NOT PURCHASE POURT
TO. IT ONLY REGULATES CRIMINAL CASES IN THE FEDERAL COURTS. THE I.E. D COEXISTS STATUTE
IN EVERY JURISDICTION, WHETHER THE S T A FEDERAL COURT OR THE C J R A IN NEW JERSEY, AS
THE SUPREME COURT EXPLAINED IN MAURER ROW, IF THE I.E. D AND MOTHER SPEEDY TRIAL STATUTE
APPLIED TO THE STAM CASE THE COURT SHOULD SIMPLY COMPLY WITH BOTH. EACH SPEEDY TRIAL
STATUTE REFLECTS DIFFERENT LEGISLATIVE CHOIVENSZED AING EXCEPTIONS TO THE UNDERMINE
ITS PURPOSE, THAT CONCLUDES MY OPEN LONGING STATEMENT. UNLESS THAT ARE QUESTIONS I'LL
TURN RIGHT TO THE MEANING OF THE 48 APHRASE THE PRISONER IS UNABLE TO STAND TRIAL.
LIKE THES ESCAPE EXCEPTION ARTICLE VI(A) ADDRESSES A SPECIFIC ISSUE THAT DOES
NOT ARISE IN EVERY CASE. NF THE EXCEPTION IS, YOU KNOW, IS THE, THERE ARE EXCEPTIONS
TO THE CONTINUOUS DEPARTMENT THAT REQUIRES AN OPEN COURT CONTINUANCE. IN 1957, THE PHRASE
MEN THE DEFENDANT WAS UNABLE TO MAKE OR A CYST WITH HIS DEFENSE. WE'VE CITED DOZENS OF
CASES IN SOL LARLY ARTICLES PUBLISHED PRIOR TO 1957 THAT USED THE PHRASE IN THAT WAY.
THE COMMON LAW RIGHT WAS LONG-STANDING AND IT WAS AN ESTABLISHED REASON FO DELAYING A
TRIAL. IT MAKES GOOD SENSE THAT THE I.E. D WOULD HAVE PROVIDED FOR THIS EXCEPTION.
JUDGE SABATINO: I'LL HOLD YOU THERE FOR A MOMENT. LOOKING AT THIS HISTORICALLY,
I AM AS OLD AS THE IAD BY THE WAY, DOES THE EXPOSURE AND DEVELOPMENT OF FEDERAL COULDN'T
CONSTITUTIONAL RIGHTS IN THE 1960s BY THE UNITED STATES SUPREME COURT, MATT VERSUS OH
IO INCORPORATION TO THE STATES, DOES THAT CONSTITUTIONAL DEVELOPMENT ALTER THE
LANDSCAPE FROM WHAT EXISTED WAY BACK IN 1957, 1958 IN TERMS OF THE ANTICIPATION OF THAT
DEFENDANTS MORE POST MATT V OHIO AND THE MIRANDA DECISION AND SO ON WERE MORE LIKELY TO
BRING MOTIONS SEEBING RELIEF THAN THEY MAY HAVE BEEN WAY BACK WHEN? SHANE D.
AVIDAN: THAT'S A GREAT QUESTION, YOUR HONOR, AND OBVIOUSLY A LOT HAS CHANGED SINCE 1957,
BOTH IN TERMS OF PROCEDURE AND TECHNOLOGY, MAYBE THAT CUTS IN THE OTHER DIRECTION MAKING
IT EASIER TO PROSECUTE CASES BUT THE ONE THING THAT HAS NOT CHAFRMGED IS THE MEEVENING
OF THE IAD WHICH IS PIKSED IN 1957, IT'S NEVER BEEN AMENDED. THERE IS A PROCEDURE UNLIKE
SOME COMPACTS FOR STATES TO WITHDRAW FROM THE COMPACT, IT'S NEVER PEN, NO STATE HAS TRIED
TO LEAVE. AND I THINK WHILE A LOT HAS CHAFRMGED, YOU KNOW, THE SUPPRESSION
MOTIONS WERE A KNOWN PHENOMENON IN 1957, THEY WERE MADE NOT ONLY UNDER FEDERAL LAW, BUT
ALSO UNDER STATE LAW, AND JURY SELECTION AS WELL, ALSO A KNOWN PHENOMENON. THERE ARE
NO QUESTION SGS A ZOOM PROCEEDING IN OPEN COURT? AND I THINK IT'S FAIR TO TRY TOE ANSWER
THOSE BASED OPERATE CHANGED CIRCUMSTANCE BUT WE'RE ACH APPLYING WRIT HERE THAT WAS
ABSOLUTELY IN EXISTENCE AT THE TIME AND I THINK THERE'S JUST NO BASIS. CHIEF
JUSTICE RABNER: HELP US UNDER THE PRACTICAL IMPLICATIONS OF YOUR ARGUE. THAT THE PHRASE
BE NARROWLY CONSTRUED TO APPLY TO ONLY FITDZ CAN YOU TELL P MENTAL CONDITIONS.
WOULD UNAVAILABILITY OF DEFENSE COUNSEL BE A BASIS TO TOLD THE 180-DAY CLOCK?
SHANE D. AVIDAN: THAT ISSUE IS NOT PRESENTED IN THIS CASE, I'M HAPPY TO GIVE YOU MY VIEW
EVEN THOUGH IT DOESN'T AFFECT MY CLIENT. SO IN 1957, THERE WAS NO MUCH FEDERAL RIGHT
TO COUNSEL IN THE STATE COURTS JEVEN RUL OTHER THAN IN SPECIAL CIRCUMSTANCES. SO I BELIEVE
THAT THE VAST MAJORITY OF DEFENDANTS WOULD HAVE GONE TO TRIAL WITHOUT COUNSEL AT THAT TIME.
AND I JUST DON'T THINK ANYONE WOULD HAVE UNDERSTOOD THAT THEY WERE UNABLE TO STAND
TRIAL WITHOUT COUNSEL. SO I THINK IF YOU LOOK AT THE HISTORICAL USAGE, YOU'RE
TALKING ABOUT A JACK OFFED JEW CAN I HAVE DPAS AT THE. PASS. JUSTICE PATTERSON:
YOU'RE SAYING THAT TODAY OF THE UNAVAILABILITY OF DEFENSE COUNSEL WOULD TOLL THE TIME?
SHANE D. AVIDAN: I DON'T BELIEVE SO. I THINK IT'S LIMITED TO A LACK OF
CAPACITY. CHIEF JUSTICE RABNER: SUPPOSING A DEFENDANT SEEKS A SPEEDY TRIAL,
CLOCK STARTS TICKING ON DAY 1, IS THERE ANYTHING WRONG WID THAT PERSON SEEKING OUT A VERY
OF GIFTED, BUSY DEFENSE ATTORNEY WHO HAS TRIALS LINED UP FOR THE NEXT SIX MONTHS AND WOULD
THAT EFFECTIVELY RUN OUT THE CLOCK? SHANE D. AVIDAN: OH, ABSOLUTELY NOT.
AND I THINK. CHIEF JUSTICE RABNER: WHY NOT. SHANE D. AVIDAN:
IN TERMS OF THE TOLLING PRO SIGS, YOU CAN LEAVE IT OPEN, THE HE A R MORE SIMILAR TO PENDING
MOTION BUT I THINK THE CONTINUANCE PROVISION IS THERE AS WELL AS THE DOCTRINE OF WAIVER.
JUSTICE PATTERSON: WHAT WOULD BE THE BASIS IF IN FACT WE ARE TO VIEW THIS
PHRASE SO LIMITED TO DEAL WITH THE HEALTH MENTAL AND PHYSICAL HEALTH OF THE DEFENDANT,
WHAT WOULD BE THE BASIS FOR ALLOWING THE CLOCK NOT TO RUN OUT BECAUSE THE LAWYER IS OVEN
TRIAL, ILL, ON A TRIP AROUND THE WORLD, WHATEVER. SHANE D. AVIDAN: AS WITH
THE VAST MAJORITY OF THE IRS THAT COULD ARISE, THE PRIMARY MEK NIM IN THE AIA D IS THE
CONTINUES PROVISION, A NUMBER OF PROBLEMS INCLUDING THIS ONE BUT IT DOES REQUIRE A
CERTAIN PROCEDURE TO BE FOLLOWED. SO I THINK IF THE DEFENDANT'S KOUN SL IS NOT AVAILABLE,
THAT'S GOING TO PROBABLY BE GOOD CAUSE FOR A CONTINUANCE AND IT COULD BE DONE. I THINK
YOU MIGHT ALSO THINK ABOUT IT AS A WAIVER, IF THE DEFENDANT IS INSISTING ON A PARTICULAR
LAWYER THAT'S NOT AVAILABLE AT ANY TIME WITHIN THE 180 DAYS, BUT THE BEST PROCEDURE FOR
THE STATE AND FOR THE TRIAL COURT IS GOING TO BE TO GRANT THE CONTINUANCE IF THERE IS
-- JUSTICE PATTERSON: THAT WOULD BE A DEFENSE WAIVER OF THEIR RIGHT UNDER
THE IAD IF THEY HAPPEN TO PICK A LAWYER WHO IS NOT AVAILABLE DURING, WELL, I SUPPOSE IT
DOESN'T MATTER IF THEY PICK A LAWYER WHO IS AVAILABLE IN THE FIRST 2 WEEKS AFTER THE OF
NOTES IS GIVEN BUT THERE IS NOT AVAILABLE IN THE LATTER PART OF THAT 180-DAY PERIOD?
SHANE D. AVIDAN: I THINK IT COULD POTENTIALLY BE A FAVOR, WOULD YOU HAVE
TO LOOK AT THE SUPREME COURT CASES, HILL VERSUS NEW YORK, UFTD TO LOOK AT WHETHER THERE'S
AN AFFIRMATIVE INDICATION THAT THIS PERSON IS AGREEING TO TREATMENT INCONSISTENT WITH
THE IAD. SO I DO THINK THE CONTINUANCE IS GOING FOB THE CLEEVEN NR WAY TO ADDRESS IT
IN MOST CASES. BUT THE WAIVER DOCTRINE IS ALSO THERE IF THE ITS ELEMENTS ARE MET.
BUT I REALLY THINK IF WE TALK ABOUT 6 A OF THE COMPACT SHTHS THE A DEAL WITH
ONE ISSUE, A VERY SPECIFIC ISSUE AND THAT'S ALL IT DOES. SO THARTS A HAR AVARIETY OF
OTHER PROBLEMS THAT CAN ARISE VEN THEY DO REQUIRE ACTIVE CASE MANAGEMENT BY THE TRIAL
COURTS BUT THIS PROVISION SIMPLY NOT THE SOLUTION TO THAT PROBLEM. THE HIS
TORICAL MEANING IS CONTROLLING, EVEN IF IT CONFLICTS WITH THE PLANNED MEANING, BUT I
DON'T THINK IT DOES IN THIS CASE. I THINK IT'S UNNATURAL TO SAY THAT THE DEFENDANT IS
UNABLE TO STAND TRIAL BECAUSE A MOTION IS PENDING. AND I THINK THAT USAGE, IT'S A
OVERSTATEMENT -- JUSTICE PATTERSON: WHAT DO YOU MEAN UNNATURAL. IF THERE'S
A MOTION TO SUPPRESS, THE KEY EVIDENCE IN THE CASE, VEN IT'S UNDECIDED, THEN THE TRIAL
WOULD GO FORWARD IF IT WENT FORWARD AT ALL, WITH NO ONE KNOWING WHAT THE EVIDENCE IS ABOUT.
SO WHY IS IT UNNATURAL TO VIEW THE SHTHS THAT CIRCUMSTANCE AS AN INABILITY TO GO TO TRIAL?
SHANE D. AVIDAN: IN THAT CIRCUMSTANCE THE DEFENDANT IS ABLE TO STAND
TRIAL, BUT THERE'S A VARIETY OF REASONS WHY THE COURT OR THE STATE MAY NOT WANT TO GO
TO TRIAL AND WE DO SOMETIMES, YOU KNOW, USE THE PHRASE SAY I'M UNABLE TO DO SOMETHING YOU
JUST DON'T WANT TO DO. R. JUSTICE PIERRE-LOUIS: IF YOU HAVE A DISPOSITIVE
MOTION PENDING, YOU WOULD BE FINE GOING FORWARD WITH TRIAL WITHOUT KNOWING THE RESOLUTION
OF THAT MOTION? SHANE D. AVIDAN: I THINK THE BETTER PRACTICE DECIDED AND
USUALLY IT IS DECIDED PRETRIAL BUT THE FACT REMAINS IT CAN BE DEFERRED UNTIL TRIAL AND
THE DEFENDANT ABSOLUTELY HAS THE CAPACITY TO BE ADJUDICATED WHILE THE MOTION IS PENDING.
JUSTICE FASCIALE: PER DEFER THE MOTION TO SUPPRESS THE TRIAL, SHAVEN SHAKEN
THE BETTER PRACTICE IS TO DECIDE THE BEFORE TRIAL, THE MAIN REASON WE DECIDE IT BEFORE
TRIAL IS REALLY FOR THE STATE'S BENEFIT AS THE ATTORNEY GENERAL LAYS OUT IN THEIR BRIEF
THE CHOICE THAT THE STATE WOULD BE PUT IN TO EITHER USE THE DISPUTED EVIDENCE AND RISK
A NEW TRIAL IF IT'S FOUND TO BE ILLEGAL OR FOREGO THE EVIDENCE AND RISK AN ACQUITTAL BUT
FROM THE DEFENDANT TS PERSPECTIVE IT REALLY DOESN'T COMPLICATE THE STRIEL STRACH
ASTRATEGY AT ALL. CHIEF JUSTICE RABNER: CONSIDERATIONS OF WHETHER TO PLEAD
OUT 1'S CASE WHETHER FO NEGOTIATE WITH THE STATE? SHANE D. AVIDAN: THAT'S
TRUE. CHIEF JUSTICE RABNER: WHICH ENCOMPASSES 98 PERIODS OF TIME OF OUR
CASES. SHANE D. AVIDAN: THERE ARE BENEFITS TO BEE APLEA BARGAINING BUT
THE DEFENDANT IS ABLE TO STAND TRIAL. THERE MAY BE REASON HAD SOME CASE THE DEFENDANT
WANT THE MOWING BUT THE FACT REMAINS THEY'RE ABLE TO STAND TRIAL, NOT WITHSTANDING THE
MOTION. OF. JUSTICE PATTERSON: THE DEFENDANT FILES A MOTION TO SUPPRESS,
ISN'T THE DEFENDANT SAYING TO THE COURT I WANT THE THIS STIEDED NOW PRETRIAL, THAT'S OF
THE MESSAGE, PRETRIAL MOTION AND THE IT'S DEFENDANT'S REQUEST THAT THE COURT RULE ON IT
BEFORE THE CASE GOES TO TRIAL. SHANE D. AVIDAN: I THINK GENERALLY THAT'S
RIGHT BUT THIS REALLY GETS TO THE HEART 69 MATTER WHICH IS THE 180 DAYS ARE THERE TO PREPARE
FOR TRIAL AND BOTH SIDES ARE ENTITLED TO PREPARE FOR TRIEM. DEFENDANT PREPARES FOR TRIAL WITH
THE MOTIONS THE STATE MAYBE TRACKS DOWN ADDITIONAL WITNESSES AND EVIDENCE BUT TO USE THE
180 DAYS TO GET THE CASE READY FOR TRIAL AND IT'S NOT 180 DAYS, 180 WASTED DAYS IN DOIGS
WHATEVER DAYS MAY BE CONSUME BY TRIAL PREP RATHS, IT'S NOT LOIK A CHESS CLOCK WHERE YOU
GET LIKE 10 WASTED DAYS PLUS WHATEVER TIME IS USED USEFULLY. SO IT REALLY
IS INTENDED TO BE AN ALL IN DEADLINE THAT SHOULD BE MET AND I THINK GENERALLY SPEAKING
180 DAYS IS GOING TO BE SUFFICIENT FOR PRETRIAL MOTION WITH CASE MANAGEMENT. AND THAT'S
BY THE WAY, THAT'S EXACTLY WHAT HAPPENED HERE. WHERE JUDGE SMITH SET A SCHEDULING ORDER
AND SAID IF YOU WANT TO MOVE TO SUPPRESS, DO IT BY THIS DAY, IECHL GEING TO DECIDE IT
IN JUNE, YOU KNOW, TWO MONTHS IN ADVANCE OF THE IAD DEAD LIEP. I THINK THAT WOULD BE
REASONABLE FOR A TRIAL COURT IN AN IAD CASE TO SIGH IF YOU FILE THE MOTION LATE I'M JUST
NOT GOING TO CONSIDER IT BECAUSE OF MY SCHEDULING ORDERS AND I NEED TO, YOU KNOW, GET
THE CASE READY FOR TRIAL ON THE SCHEDULE. SO THAT MOTION SHOULD BE DONE,
I THINK ET CAN BE DONE IN THE VAST MAJORITY OF CASE AND IF FOR SOME REASON THERE'S CASE
SPECIFIC REASONS, LATE BREAKING ISSUES, THAT'S WHY THE CONTINUANCE PROVISION IS THERE.
JUDGE SABATINO: HOW PREDICT AB IS THAT, THOUGH, TWO ALL TERP TIFS, ONE IS
TO COUNT OR USE DEFENSE MOTION TO TOLL THE CLOCK AND JUST SAY AS A MATTER OF PRINCIPLE,
THE CLOCK STOPS AND EVERYBODY KNOWS WHAT WHEN IT WILL RESUME AGAIN ONCE THE JUDGE DECIDES
THE MOTION. VERTSZ YOUR SUGGESTION ABOUT SECTION 3 AND GOOD CONTINUANCE FOR GOOD CAUSE,
WELL, HOW DO WE KNOW WHAT THE JUDGE MAY CONSIDER GOOD CAUSE OR NOT AND YOU MAY HAVE A
DEFENSE ATTORNEY WHO COULD BE WORRIED ABOUT STRICT LAND 6TH AMENDMENT OBLIGATIONS SEEING
THE CLOCK IS RUNNING OUT, I WOULD LIKE TO MAKE THIS MOTION. THE SUPREME COURT HAS SAID
THERE'S NO AUTOMATIC TOLLING, WILL THE JUDGE SFIEPD GOOD CAUSE FOR ME TO DO THIS OR MANY
A I A I GOODING TO END UP HARMING MY CLIENT'S IAD RIGHTS. WOULDN'T IT BE BETTER
TO HAVE THE PREDICTABLE STANDARD RATHER THAN A HADZ SEE GOOD CAUSE STANDARD CONTROL SHE'S
SAN NAR YOES. Z. SHANE D. AVIDAN: I DON'T BELIEVE THAT'S A SIGNIFICANT
PROBLEM. YOU KNOW, THE DEFENSE ATTORNEY'S OBLIGATION IS TO OF GET THEIR CLIENT, TO DO
THE BET FOR THEIR CLIENT BUT THE' NOT T TRY TO GAME THE SYSTEM AND CAUSE IT, A SPEEDY
TRIAL DISMISSAL. THEY SHOULD RAISE THE ISSUE AND THEY SHOULD TRY TO MOVE IT FORWARD T
TO RYE TO MANUFACTURE A SITUATION WHERE THERE'S A DISMISSAL. I THINK THAT WOULD BE INEFFECTIVE
ASSISTANCE. SO WE'RE NOT HERE TO WRITE THE COMPACT, WE'RE HERE TO ENFORCE
IT. I DO THINK THE WORDS MATTER AND HOW THEY WERE UNDERSTOOD IN 1957 MATTERS AND THAT
WAS ULTIMATE THE CONTROLLING ISSUE. BUT ATS A MATTER OF POLICY I DON'T THINK IT'S A SUICIDE
PACT, I DON'T THINK IT'S IRRATIONAL AT ALL TO SAY DIRECT ALL OF THIS TO THE CONTINUANCE
AND OTHER THAN THAT PROCESS WE DON'T WANT TO NICKEL AND DIME THE DEFENDANT EVERY TIME
#245IRS A MOTION OR SOME OTHER LITIGATION ACTIVITY BECAUSE AGAIN THE GOAL WAS TO GET
THEM BACK -- JUSTICE PATTERSON: THE DEFENDANT FILES 3 DIFFERENT SUPPRESS
MOTIONS IN SUCCESS, DOES THE COURT HAVE AN OBLIGATION TO SAY THAT'S GOOD CAUSE FOR A
CONTINUANCE? SHANE D. AVIDAN: YEAH, IF THERE'S GOING TO BE A CONTINUANCE,
I THINK THE COURT TO ESHOULD MAKE AUM THE FINDINGS. JUSTICE PATTERSON:
MY KWETHS ASK A LITTLE DIFFERENT, THIERS THREE SUCCESSIVE MOTION, AT THIS POINT THE CLOCK
IS GOING DO RUN OUT ON THIS SO THERE MAY BE SOME STRATEGY BEHIND THIS FROM THE DECHT TS
PERSPECTIVE. YOU'RE SARING THE COURT'S ONLY WAY OUT OF THIS UNDER THE
COMPACT IS TO SAY THIS IS GOOD CAUSE FOR A CONTINUANCE? SHANE D. AVIDAN:
I THINK THAT'S THE BEST WAY OUT OF IT AND THAT'S GO FOG APPLY IN THE VAST MAJORITY OF THE
CASES. JUSTICE PATTERSON: IS THE THIRD MOTION GOOD CAUSE FOR A CONTINUANCE?
SHAVEN SHAKEN HERE I DON'T THINK SO, BECAUSE THE THERE WERE ADDITIONAL SUPPRESSION MOTIONS,
THEY WERE ALL DECIDED JUNE 29TH AS SCHEDULED. THERE'S ABSOLUTELY NO DELAY.
JUSTICE PATTERSON: YOUR PRINCIPLE AS IT WOULD APPLY TO OTHER CASES. SHANE D.
AVIDAN: 11TH OUR THERE'S NEW MOTIONS AND IT'S NOT GOING TO BE AT ALL PRACTICAL TO DECIDE
THEM BY THE DEAD LIEP. I THINK THE COURT COULD EITHER, IF IT PUT IN PLACE A SCHEDULING
ORDER, IT COULD EVEN FORCE THE SCHEDULING ORDER AND SAY THIS MOTION IS FORFEITED OR SAY
I AM GOING TO DECIDE THE MOTION BUT YOU'VE WAIVED THE TIME LIMIT BY FILING THIS LATE MOTION.
JUSTICE PATTERSON: THAT WOULDN'T BE CONTINUANCE, THAT WOULD BE A WAIVER.
SHANE D. AVIDAN: THE WAIVER DOCK PRIN TRIN MUTT BE AVAILABLE BUT THE BEST
PRACTICE WOULD BE FOR THE COURT TO USE THE CONTINUANCE PROVISION IF IT'S POSSIBLE AND
IT GENERALLY IT WILL BE. MAT PAT IF THE COURT DOESN'T FIND GOOD CAUSE IN THAT THIRD
SUPPRESSION MOTION WHEN THEY, IT COULD HAVE BEEN BROUGHT WITH THE OTHER TWO, WHAT HAPPENS?
SHANE D. AVIDAN: IF THE COURT DOESN'T FIND GOOD CAUSE IT CAN'T GRANT THE
CONTINUANCE. BUT I THINK, UNLESS THERE'S A WAIVER, BUT I DO THINK THAT IF THERE'S 11TH
HOUR KRES SUPPRESSION MOTION THE VAST MAJORITY OF JUDGES ARE GOING TO FIND THAT IS GOOD
CAUSE FOR A CONTINUANCE. CHIEF JUSTICE RABNER: THE IAD IS FED WUL LAW
SUBJECT TO FEDERAL INTERPRETATION. YOU'RE ASKING US NOT TO FOLLOW THE MAJORITY OF FEDERAL
CIRCUITS THAT HAVE TERP PRITD THE LAW DIFFERENTLY FROM WHAT YOU'RE ADVANCING TODAY. WHAT
DO YOU MAKE OF THAT LAW. SHANE D. AVIDAN: THAT'S HAD A FAIR STIEMENT. I THINK
THE MAJORITY OF THEM ARE AGAINST IT. THE 5TH AND 6TH CERTIFICATE DO AGREE WITH THE OUR
POSITION AND YOU HAVE TO GO AGAINST AT LEAST FEDERAL COURT HOWEVER YOU DO IT SO I THINK
YOU SHOULD FORM YOUR OWN VIEW VEN YOU SHOULD THINK ABOUT HOW WOULD THE U.S. SUPREME COURT
DECIDE IT IF PRESENTED WITH THIS SPLIT OF AUTHORITY AND I THINK THE KEY FOR THAT IS THE
INTERPRET TIFF METHOD BECAUSE THE CONTRA CASES JUST DO NOT FILE THE RIGHT METHOD. THE
PARTIES MAY NOT ADVISE THEM OF THE HISTORY BUT THEY CERTAINLY DO NOT LOOK AT THE MEANING
OF THESE WORDS IN 1957. THE 5TH CERTIFICATE DID EXACT SER CIRCUIT P WEST LAW THAT I HAD
WHEN DOING THE SEARCH SO THEY DIDN'T FIND JUST AS MANY CASES AS WE DID, BUT THAT'S EXACTLY
THE METHOD THAT THEY FOLLOWED AND THAT'S RIGHT ONE. SO I THINK THAT THE
MAIN REASON COMINGING AGAINST US IN THOSE CASES IS THE I AM PARTY ARE CAN AND IN A, I
DONT WHAT NT TO ADDRESS THE I THINK IT'S JUST VERY VERY WRONG TO APPLY THAT CANNON IN THIS
SITUATION. AND THE COURT EXPLAINED THE REASONS BETTER THAN I COULD THE MARINE NO, SIR
DECISION IN SO I THINK NUMBER 1, IF THE STATUTE SF NOT AMBIGUOUS, YOU DON'T USE THIS CAN
NAN AT ALL AND I THINK IN THE CASE OF THIS STATUTE IT HAS A PRINCIPLE OF THAT IT'S
CONSTRUED IN FAVOR OF THE PRISONER WHICH ASK A BETTER WAY TO RESOLVE AMBIGUITIES THAN THIS
CAN NAN. UN-UH B BUT ALSO AS YOU EXPLAINED IN MARINE THE CAN NAN REEL REQUIRES
THE TWO STATUTES HAVE THE SAME PURPOSE P NOT JUST THE "SIMILAR PURPOSE" AND IN THIS CASE
THIS COURT HEAD THE DISINTER MANT STATUTE WAS THE INTER MAVENT BROADLY SPEAKING THEY BOTH
DEAL WITH WHETHER HUMAN REMAINS WILL BE IN THE GROUND BUT THERE'S A DIFFERENCE, YOU KNOW
THE SURVIVING SPOUSE HAS A RIGHT TO DECIDE INTERMENT OVER THE OBJECTIONS OF THE CHILDREN
BUT NOT DISINTERMENT AND THE COURT HAS FELD THE LOWER COURT ERRED IN TRYING TO IMPORT
THAT FRAMEWORK FROM THE INTER MEANT THE TO DISINTERMENT STATUTE. I THINK UFR STATUTES
THAT APPLY TO DIFFERENT CLASSES OF DEFENDANTS AND WHEN THERE'S APPLYING FEWER THAN ALL
CASES, YOU CAN BE A LITTLE MORE GENEROUS WITH AT SPEEDY TRIAL STATUTE BECAUSE THE CASE
MANAGEMENT PROBLEMS ARE NOT AS SEVERE IS THE STATUTE THAT IS GOING TO APPLY IN EVERY
SINGLE CASE AND OF COURSE THERE'S THE UNIQUE PROBLEMS THAT INTERSTATE DETAINERS CREATE
THAT HAVE TO BE CONSIDERED IN THE IAD BUT NOT THE S T A. SO I THINK THAT
THAT IS A VERY SIGNIFICANT REASON WHY THE CAN NAN SHOULD NOT BE APPLIED. AND PT SO DIFFERENT
SUBJECT MATTERS, DIFFERENT PURPOSES, IT'S NOT AMBIGUOUS BUT ALSO JUST APPLYING THAT CAN
NAN IS OVERRIDING THE WILL OF THE 43 STATES THAT ADOPTED THE STATUTE PRIOR TO THE S T
A, THEY HAD NO NOTICE OR KNOWLEDGE OF WHAT EXCEPTIONS WERE GOING TO BE IN THE S T A IN
1975 AND THAT YOU FOLLOW THE STATE ATTORNEY JENS POSITION, IT'S JUST NOT THE 1975 S T
A, THEY SAID EVERY TIME CONGRESS ACHLDS THAT STATUTE AND PUTS NEW EXCEPTIONS IN IT THOSE
ARE GOING TO APPLY TO THE IAD AS WELL SO YOU ENTIRELY LOST ARE THE PRINCIPLE OF DI MACK
ACCURACY, THE DIE DEAR DLOFRPTDZ IT'S NOT JUST AN ORDINARY STACHTS' SUPPOSED TO BE CONSTRUED
AS AN AGREEMENT AMONG THE STATES SO YOU REALLY DO NEED THEIR CONSENT AND OTHER THAN THESE
IAD CASE WHICH I ACKNOWLEDGE THERE'S SOME OF THEM AGAINST US, THERE'S NO OTHER CONTEXT
WHERE COURTS HAVE SAID THAT AN INTERSTATE COMPACT ON THE ONE HAND AND A SINGLE INJURES
DIKDZ STATUTE AND THAT'S A VERY SURPRISING APPLICATION BECAUSE A SING COMPANY INJURES
DIKSZ STATUTE CAN ONLY TELL YOU WHAT CONGRESS INTENDED, IT CAN'T TILL THE INTENT OF ALL
OF THE STATES LET ALONE WHAT I THINK THE MOST IMPORTANT WHICH IS THE STIRS VR FIRST 2
OF #2W0 STATES TO EN FACT THE COMPACT IN 1957. I THINK THE PROJECT.
JUSTICE PATTERSON: WHY ARE THOSE TWO STATES ENTITLED TO THEIR INTENT, WHY IS THAT
PARAMOUNT. SHANE D. AVIDAN: P FROM THE TEXT OF THE COMPACT SO EVERY STATE
EQUALLY HAS ATLANTIC CITY SAYS TO THE TEXT. BUT I THINK THAT'S WHEN THE FIRST TWO STATES
AGREED TO IT AND ARE TERD INTO FORCE AND THE SUBSEQUENT STATES ENTERED ON EQUAL FOOTING
TO THE FIRST TWO STATES, TO THE SAME AGREEMENT AND STOW I MEAN NEW JERSEY IS JUST A YEAR
LATER, I DON'T THINK THARTS ANY DIFFERENCE. JUSTICE PATTERSON: WAS NEW JERSEY
BOUND BY WHATEVER INTERPRETATION THE TWO STATES MAY HAVE MADE WHICH THERE ISN'T A LOT
OF EVIDENCE AS TO WHAT THAT LANGUAGE MEANT? SHANE D. AVIDAN: I DON'T THINK
SO. I THINK THE MEANING OF IT IS FIXED WHEN IT ENTERS INTO FORCE SO YOU'RE NOT NECESSARILY
BOUND BY CONNECTICUT OR A NEW YORK DECISION AFTER THE ENACTMENT. YOU HAVE AN ACTUAL
RIGHT TO INTERPRET THE KWAKT BUT THE STATES ARE TEMP PRITING ITS MEANING AS OF 1957 AND
IT HATS TO HAVE A UNIFORM NATIONAL MEANING UNDER THESE FEDERAL PRINCIPLES. AND IT CAN'T
VARY FROM P STATE TO STATE TO STATE BECAUSE IT'S NOT JUST NEW JERSEY INTERESTS THE HE
A ALSO THE STIET THAT HAS CUSTODY THE PRISONER THAT HAS AN INTEREST AS WELL.
JUSTICE PATTERSON: IN THE ABSENCE OF A UNITED STATES SUPREME COURT DECISION WE LOOK TO
CIRCUITS, CORRECT? SHANE D. AVIDAN: YOU CAN LOOK FO IT, IT'S NOT BINDING
ON YOU WHEN THERE'S NO SUPREME COURT DECISION, NOT WHEN NARS A SPLIT. SO I THINK YOU'VE
JUST GOT TO SEE WHO DOES IT RIGHT. SOME WORK TO BE BUN BUT I THINK THIS COURT CAN SORT
IT OUT. CHIEF JUSTICE RABNER: NOT BINDING BUT WE'RE SUGGESTS WE GIVE IT
NO WEIGHT AND GO THE BEST DECISION WE CAN WITHOUT REGARD T THEY SAY CONSIDERATIONS.
SHANE D. AVIDAN: GIVE 8 FAIR CONSIDERATION BUT YOU'VE GOT TO WEIGH THE OPINIONS, NOT
JUST COUNT THEM AND I KNOW THAT YOU WILL. BUT THIS PROJECT IN PRY TIER YA
THE PROJECTS THESE ARE JUST THE TWO SAME STATUTES IT'S NOT REEL, THAT'S REALLY NOT WHAT
IT IS BECAUSE IT'S NOT POSSIBLE TO FULLY HARMONIZE THEM ESPECIALLY NOT YOU'RE GOING TO
DO IT WITH ALL 50 SPEEDY TRIAL STATUTES. AND THERE'S REALLY NO EFFORT TO DO SO, THERE'S
THE 70-DAY CLOCK ON THE S T A AND THE 180 CLOCK ON THE IAD. I HAVEN'T HEAR THE STATES
SAY THEY'RE GOING AK SEP THE 70-DAY S T A CLOOK IN ITS PLACE, THE REALLY IS LIEKS A MIX
AND MAX STATUTE SITUATION WHERE THEY'RE GOING TO TAKE THE 180 CLOCK ON IAD AND COMPLIEN
IT WITH 16 EXCEPTIONS AND YOU END UP WITH SOMETHING THAT'S MUCH CLOER OSLOWER THAN
EITHER STATUTE ON ITS OWN WHICH IS A VERY PERVERSE RESULT WHEN THIS IS SUPPOSED TO BE A
STATUTE THAT ACTS WITH PARTICULAR SPEED. AND JUST TO CUT T THERE'S A LOT
OF CASE AGAINST ME, JUST TO CUT GHENS FOR A SECOND, I DO THING, THE 1ST CIRCUIT AND THE
4TH CIRCUIT HAVE MADE CLEAR IF THERE'S AN IAD OBJECTION THEY'RE NOT GOING TO PARTY THE
I AM PAR CAN NAN IT'S REALLY JUST A RULE OF CONVENIENCE FOR THE FEDERAL COURT WHERE IF
THERE'S NO IAD OBJECTION THEY'RE GOING TO ASSUME THAT WHATEVER TOLLS TIME UNDER THE S
T A TOLLS THE IAD BUT NAR NOT GOING TO DO IT OVER THE DEFENDANT TS OBJECTION AND HERE
THERE WAS AN OBJECTION AND SO I THINK PT MR. AMER IS ENTITLED TO HAVE THE IAD CORRECT
APPLIED TO HIS CASE. CHIEF JUSTICE RABNER: IF THE COURT WERE NOT TO ACCEPT
YOUR ARGUMENT, WOULD THE TIEMENT LIMITATIONS IN THE COURT'S LOCAL WITH RESPECT TO THE
STATE'S SPEEDY TRIAL ACT BE A SPENS SENSIBLE PLACE TO LOOK. SHANE D. AVIDAN:
I DIDN'T HAVE TO CHANCE TO ADDRESS IT IN THE BRIEFS. I DON'T THINK THE C G R A WOULD
APPLY IN MR. AMER'S CASE BECAUSE HE'S NOT A PRETRIAL DETAINEE, HE'S PENNSYLVANIA CUSTODY
ON A SENTENCE AS A RESULT OF HIS GUILTY PLEA THERE. SO I HAVEN'T SEEN A CASE THAT SAYS
THIS EXPLICITLY BUT THAT'S MY UPDZING THAT THAT STATUTE WOULDN'T EVEN APPLY TO HIM AT
ALL. AND I THINK TO TRY TO SAY THAT THE C J R LACHLT ISN'T BINDING WITH THE IAD FACES
EVEN MORE PROBLEMS THAN THE S T A IT'S MUCH MORE FARTHER AWAY IN TIME. CHIEF
JUSTICE RABNER: I THINK YOU'RE GOING TO STEP FURTHER WHAT I'M WONDERING ABOUT IS WHETHER
THAT TIME LIMIT TATHS, NOT THE ENTIRETY OF THE SPEEDY TRIAL ACT, OF THE R RC G R A KT
ACT MIGHT BE A SPENS ABL PLACE TO LOOK IN ORDER TO AVOID THE CONCERNS YOU'VE JUST EXPRESSED
ABOUT RUNNING WITHOUT END. SHANE D. AVIDAN: I THINK IT'S BETTER THAN NOTHING
BUT I THINK WHAT HE IS ENTITLED TO IS THE IAD AND ITS OWN TEXT AND, YOU KNOW, THE STATE HAS
TO CONFORM ITS CONDUCT TO THE COMPACT AND NOT TRY TO CONFORM THE COMPACT TO SOME OTHER
STATUTE. SO IF IT'S THE C J R A APPLIES AS WELL THE COURT HAS TO COMPLY WITH BOTH AND
THAT'S JUST A PROBLEM EVERY JURISDICTION FACES THAT THERE MIGHT BE TWO SPEEDY TRIAL CLOCKS
IN THE SAME CASE. CHIEF JUSTICE RABNER: LET ME ACCIDENT DIFFERENTLY. IF
THE THIS COURT A DOCHTS THE MAJORITY VIEW OF THE CIRCUITS, SHOULD THERE BE A TIME LIMITATION
FOR HOW LONG MOTIONS CAN REMAIN PENDING? SHANE D. AVIDAN: OH, I GUESS SO.
I MEAN YOU KNOW, IF YOU WANT TO AVENUE DOPT. S T A, IT'S RIGHT THERE IN THE STATUTE DEFINES
EXACTLY HOW LONG THE TOLLING IS, IT'S UNTIL THE DECISION AND I THINK THERE IS A PRESUMPTIVE
TIME LIMIT THERE SO IT'S SPELLED OUT IN THE STATUTE AS IT COULD BE. IF THE EXCEPTION
IS WRITTEN IN BUT I THINK THAT JUST ILLUSTRATES HOW THIS REALLY IS A MATTER OF LOIF TIFF
CHOICE AND EVEN BEFORE THE C J R. AND THE S T A THERE'S DIFFERENCES IN HOW MOTIONS ARE
HANDLED AND WHETHER, S T A, FOR INSTANCE, THE ENGS SEPGS AP EMPLOYING TO MOTIONS FILED
BY THE GOVERNMENT AS WELL SO IF THESE STACHS ARE REALLY I AM PAR TEE MA TIER YA IT'S NO
THE DEFENDANT'S I AM IT'S THE STATE'S MOTION AS WELL SO I THINK THAT YOU'RE SIGNING UP
FOR A LOT MORE THAN MOTION TIME, THERE'S 16 EXCEPTIONS, THAT HAVE NOTHING THO DO WITH
THE DEFENDANT'S CAPACITY TO BE TRIED THAT ARE GOING TO COME IN. I THINK
IT'S JUST NOT NEEDED. 180 DAYS IS ENOUGH. JUDGE SABATINO: WHAT ABOUT MOTIONS
FOR LEAVE TO APPEAL, THE LOSING PARTY ON A SUPPRESSION MOTION SEEKS INTERLOCUTORY
APPELLATE REVIEW, AND IN THE STATE'S CASES IT MIGHT BE THEIR ONLY OPPORTUNITY TO SEEK
REVIEW BECAUSE OF DOUBLE JEOPARDY, SHOULD THE PURSUING INTERLOCUTORY REVIEW TOLL THE CLOCK
OR NOT, VEN IF SO, WHY NOT. SHANE D. AVIDAN: I THINK IF THE APPELLATE
COURT AS THE DECIDE STOD PERIOD OF TIME THE INTERLOCUTORY REVIEW I THINK THAT'S A SLAM
DUNK CASE FOR CONTINUANCE, OBVIOUSLY IT IS AN IMPORTANT ISSUE TO BE RESOLVED AND I THINK
THE COURTS WILL HAVE NO TROUBLE LOCKING IT. IF IT'S THE DEFENDANT TS APPEAL, MAYBE WAIVER
COMES INTO PLAY AS WELL BUT AGAIN I THINK CONTINUANCE IS THE SAFER ROUTE.
JUSTICE SOLOMON: CONTINUATION FOR GOOD CAUSE. SHANE D. AVIDAN: I THINK
IT WOULD BE. JUSTICE SOLOMON: RATHER THAN AUTOMATIC TOELG OF THE CLOCK.
SHANE D. AVIDAN: HAVE TO BE ADDRESSED THAT WAY BECAUSE THE OTHER TWO
PRISONER ESCAPES OR THANK ARE PRETTY RARE AND AS ISHTS OF ADD JUDE TIFF CAPACITIES OH
THERE'S 2 EXCEPTIONS VERY GOOD REASONS THAT DON'T REQUIRE THE CONTINUANCE PROVISION BUT
OTHERWISE THAT'S THE DESIGN OF THE STATUTE AND IT'S REALLY FOR THE REASON WHICH IS TO
GIVE THE DEFENDANT'S NOTICE AND OPPORTUNITY TO BE HEARD ON THE KOONT WANS TO REALLY KNOW
THAT THEY HAVE TO MAKE THE RECORD AND ALSO IF THEY KNOW THAT THERE'S GOING TO BE A KOVENT
WANS, MAYBE THEY DECIDE WHAT YOU KNOW WHAT, I DON'T NEED THIS MOTION IT'S MORE IMPORTANT
TO HAVE A SPEEDY TRIAL P I'M GOING TO WITHDRAW THE MOTION. JUSTICE SOLOMON:
ULTIMATELY WE'RE GOING TO HAVE TO INTERPRET IN THIS REGARD UNABLE TO PROCEED AND THAT'S
GOING TO DRIVE THE OUTCOME OF THIS CASE. AND IN DOING SO ONE OF YOUR CONTENTIONS IS THAT
AS THE DHEEF CHIEF IMPLICATE IN HIS QUESTION MUCH EARLIER YOU INTERPRET IN THE FAVOR OF THE
DEFENDANT BECAUSE THIS IS A STATUTE INTENDED TO PROTECT THE DEFENDANT'S RIGHT TO A SPEEDY
TRIAL, CORRECT? SHANE D. AVIDAN: THAT'S TRUE. JUSTICE SOLOMON:
WHAT ABOUT THE FACT THAT THESE MOTION IF'S THAT THEY'RE ADDITION POSITIVE MOTIONS, MAY
RAISE, OFTEN DO RAISE AND CERTAINLY IN A CASE IN A MOTION TO SUPPRESS SUBSTANTIAL
CONSTITUTIONAL QUESTIONS WHICH WILL DETERMINE THE OUTCOME OF THE CASE AND TO SUGGEST SOMEHOW
THAT THE KOPT WANS PROCESS THE APPLY, SEEMS TO BE USING THE ACT AGAINST THE INTEREST OF
THE DEFENDANT AND I POINT OUT AGAIN AS THE CHIEF RAISED, IF YOU DELAY A RESOLUTION OF THOSE
MOTIONS OR SOMEHOW DO NOT FACTOR THEM IN, THE VAST MAJORITY OF DEFENDANTS WHO WILL PLEAD
ARE DEPRIVED OF AN OPPORTUNITY TO A FAVORABLE PLEA AGREEMENT BECAUSE THE MOETHS MOTION
IS NOT RESOLVED BECAUSE THE MOTION IS STILL PENDING, IN OTHER WORDS, YOU'RE ASKING US
TO INTERPRET THE STATUTE WHICH IF WE DO IT AS YOU SUGGEST, IN MANY CASES, WILL INURE TO THE
DETRIMENT OF DEFENDANT WHO IS INTENDED TO BE PROTECTED BY THE IAD. HOW DO YOU ANSWER
THAT? SHANE D. AVIDAN: YEAH, DEFENSE COUNSEL IS IN A POSITION TO BALANCE
THE INTEREST OF THE DEFENDANT IN THE MOTION VERTSDZ THE ADDITIONAL TIME. IT MIGHT TAKE
EVEN SETTING ASIDE THE POSSIBILITY OF A SPEEDY TRIAL DECISION, THAT'S SOMETHING THAT DEFENSE
COUNSEL IS GOING TO THINK THROUGH FOR THEIR CLIENT, YOU KNOW, EVEN, YOU KNOW IN, A CIVIL
CASE IF YOU MAKE THE MOETHS' GOING TO SLOW DOWN THE TIME TO ADJUDICATION. SO I THINK
THEY CAN MAKE AN INFORMED DECISION AND I DON'T THINK IT'S HARMFUL. JUSTICE
SOLOMON: POTENTIALLY WAIVE A CONSTITUTIONAL RIGHT, A CONSTITUTIONAL ARGUMENT WITH RESPECT
TO A MOTION TO SUPPRESS SUCH AS THIS AND SAY, WELL, YOU KNOW, WE'RE GOING TO, WE'RE NOT
GOING TO WAIVE, WE'RE GOING TO FOR GET ABOUT THAT MOTION THAT MAY DISPOSE OF THE CASE
IN FAVOR OF MY CLIENT AND SET HIM LOOSE? THEY'RE GOING TO AL, IT SOUND LIKE THE TAIL
IS BAG WAGS THE DOG IN THAT KATS, THE STATUTE IP TIPPEDED TO PROTECT THE DEFENDANT IS IN
FACT PUTTING THE DEFENDANT IN A VERY DISADVANTAGEOUS POSITION THAT MIGHT
ULTIMATELY GRALTLY HARM THEM. SHANE D. AVIDAN: YEAH I THINK IN THE VAST
MAJORITY OF CASE YOU'RE NOT GOING TO BE PUT TO ANY KIND OF CHOICE LIKE THAT BECAUSE 180
DAYS IS PLENTY OF TIME FOR MOTION. I DO THINKING YOU'RE ENTITLED TO A TRIAL IN 100 DAYS
AND A FAIR TRIAL. THERE SHOULDN'T BE AN EXTRA CHARGE FOR LIKE YOU KNOW 180 DAYS IS FOR
KIND OF UNFAIR TRIAL BUT IF YOU WANT A FAIR TRIELTS' GOING TO TAKE LONGER. THE DEFENDANT
IS TIENLTED TO ENTITLE LD TO BONY AND IT CAN BE DONE, IF THERE IS A TRADE-OFF BETWEEN
THE TWO I THINK THAT'S ONE FOR THE DEFENDANT OR THEIR COUNSEL TO MAKE AND I DON'T THINK
THE DEFENDANT'S HELPED BY A RULE WHERE THERE'S GOING TO BE ALL OF THESE EXCEPTIONS WHERE
IT'S GOING TOK 180 DAYS PLUS YOU'RE GOING TO GET NICKELLED AND DIMED FOR EVERY DIFFERENT
LITIGATION EVENT. IT'S GOING TO BE A SITUATION. JUSTICE SOLOMON: REAR
TO THE TALKING ABOUT UP WE'RE TALKING BO DISPOSITIVE MOTIONS, THESE ARE NOT NICKEL AND
DIMING FOR EVERY TRIEM EVENT, THARTS A LOT OF TRIAL EVENTS, MOAT OF THEY ARE NOT
DISPOSITIVE MOTIONS. SHANE D. AVIDAN: I GUESS, I DON'T THINK IT WOULD MAK
E A DECISION WET THE MOTION IS DISPOSITIVE OR NOT, IN YOU TRUE SENSE THE DISPOSITIVE WOULD BE
A MOTION TO DISMISS NOT A MOTION REGARDING EVIDENCE BUT I TAKE THE POINT ABOUT THE
IMPORTANCE OF THE SUPPRESSION MOTION AND I JUST THINK IT CAN, SUPPRESSION IS GENERALLY
AN ISSUES RELATING TO, YOU KNOW, ENTIRETY OF EVENTS BEFORE THE CASE WAS FILED AND THARTS
NO REASON IT CAN'T BE FILE RIGHT AT THE GIPING OF THE CASE AND RESOLVED VERY EARLY AS
IT WAS HERE AND ESPECIALLY RIGHT IN NEW JERSEY THE PROCEDURE IS THAT THE DEFENDANT'S MOTION
IS BASICALLY JUST A NOTICE OF MOTION AND THEN THEIR BRIEF FOLLOWS THE STATE TS BRIEF.
THERE'S REALLY NO TIME. FAS FATS' A LITTLE BIT MORE THAN THAT. WE HAVE TESTIMONIAL MOTIONS,
R. JUSTICE FASCIALE: WE HAVE SCHEDULING, IT'S NOT EASY TO JUST RIP THROUGH
THESE MOELGSS TO SUPPRESS LIKE YOU'RE SUGGESTING. SHANE D. AVIDAN: I TRULY
DON'T MEAN TO SUGGEST THAT THERE'S NOT HARD WORK ON ALL SIDES IN THESE CASES. I'M JUST
SAYING THERE'S NOT IN MOST CASES A TIME CRUNCH WHERE THE MOTION CAN'T BE REVOLVED AND
EVEN JUDGE SMITH HERE SAID IT'S NOT VERY FREQUENT THAT THE CASE CAN'T BE RESOLVED IN 180
DAYS. HE SAID IT HATCHES OCCASIONALLY BUT IN THE RUN OF CASES IT CAN BE RESOLVED IN 180
DAYS VEN I THINK THAT'S WHAT SHOULD HAPPEN FSHTHS' POSSIBLE TO FULFILL THE COMPACT'S
PURPOSE AND PROVIDE A RESOLUTION IN 180 DAYS, THAT SHOULD BE DONE. AND FRANKLY 180 DAYS
IS THE LONGEST CLOCK IECHL AWARE OF IN A SPEEDY TRIAL. THE S T A IS 70 DAYS.
JUSTICE WAINER APTER: WHERE ARE YOU GOATING AN IDEA IT HAS TO BE A RESOLUTION IN 180 DAYS,
DOESN'T THE COMPACT SAY THE DEFENDANT HAS TO BE BROUGHT TO FLIEL 180 DAYS?
SHANE D. AVIDAN: ABSOLUTELY. OUR POSITION IS THAT JEOPARDY MUST ATTACH WITH THE 180TH
DAY AND THE YOU'RE TRIAL THAT'S GOING TO MEAN THE JURY IS SWORN. I MEAN THAT WAS THE
ESTABLISHED MEANING OF BROUGHT TO TRIAL IN 1957. THE CALIFORNIA ARIZONA SUPREME COURTS
HAD HELD THAT. JUSTICE WAINER APTER: DID YOU RAISE THAT BEFORE THE TRIAL
COURT HERE AND ASK SPECIFICALLY THAT THE JURY BE SWORN BECAUSE I THINK THAT THERE WAS
A BUNCH OF CONVERSATION ON THE RECORD AND THAT COUNSEL FOR YOUR CLIENT DID NOT SAY THE
JURY SHOULD BE SWORN BEFORE AUGUST 22ND? SHANE D. AVIDAN: I APPRECIATE
THE OPPORTUNITY TO ADD DWRES THAT, IT HAS THE ISSUE OF WAIVER HAS BEEN RAISED, IN A LATE
BREAKING WAY. IAD OBJECTION IS MADE ON THE MORNING OF JULY 25TH. THE COUNSEL MAKES THE
IAD OBJECTION HE SAYS I'M AVAILABLE IN AUGUST, I WAVENT TO HAVE THE TRIAL START IN AUGUST, I OBJECT TO THE DELAY, THE STATE RESPONDS THE JUDGE RULES, HE SAYS THE OBJECTION IS
SELECTION, THEY DO A FULL DAY OF JURY SELECTION AND AFTER JURY SELECTION THIS ISSUES COMES
UP. AND THE STATE SAYS SHOULD I HAVE WITNESSES ON THE 31ST AND THE JUDGE SAYS NO, AND
DEFENSE COUNSEL ADMITS THAT THE TRIAL IS NOT GOING TO FINISH IN ONE DAY IT'S A MULTIDAY
TRIAL. THAT'S ALL HE'S CONCEDING, HE SAID I CONCEDE WE CAN'T FINISH THE TRIAL IN ONE
DAY. VEN THEN THE STATE SAYS WE REQUEST THAT THE JURY NOT BE SWORN AND IT'S TRUE THAT
THE DEFENDANT DOESN'T OBJECT TO IT, BUT IT DOESN'T AFFIRMATIVELY CONSENT TO IT, IT
WASN'T THE DWENT'S REQUEST. SO I THINK THE STATE WAS ON NOTICE OF THE IAD OBJECTION AND
THAT IT WAS OVERRULED AND PRESERVE WHEN IT MADE THAT REQUEST FO NOT SWEAR THE JURY. I
MEEP THEY KNEW THE STAKES, THEY TOOK THIS POSITION, THEY THOUGHT THAT STARTING JURY
SLEKDZ WAS RIGHT AND IF THEY'RE WRONG ABOUT THAT, I THINK THEY JUST HAVE TO BEAR THE
CONSEQUENCES OF THAT DECISION. IT'S NOT THE DEFENDANT'S JOB TO BRING HIMSELF TO TRIAL.
ULTIMATELY IT IS THE STATE AND THE COURT THAT HAVE THAT OBLIGATION UNDER THE COMPACT.
SO I THINK IT'S NOT A SITUATION WHERE THE DEFENDANT, YOU KNOW, COULD AFFIRMATIVELY
INVITE THE THE ERROR AND SUGGESTED LET'S NOT SWEAR THE JURY, THAT'S A DIFFERENT WAYS CASE
BUT I THINK THE LACK OF OBJECTION ALONE HAS NEVER BEEN NUF FOR A WAIVER UNDER THE IEFRMENT
A D, THERE HAS TO BE AN AFFIRMATIVE ACCEPTANCE OF TREATMENT THAT'S INCONSISTENT. EVEN
IF YOU DON'T SWEAR THE JURY ON JULY 31ST, THERE'S STILL PLENTY OF TIME BETWEEN THEN AND
AUGUST 22ND. SO I DON'T THINK THAT JUST THAT LACK OF OBJECTION IS INCONSISTENT WITH THE
DEMAND. CONSISTENT DEMAND FOR A TRIAL WITHIN 180 DAYS. THAT THE DEFENDANT MADE.
JUSTICE WAINER APTER: SO IN YOUR BRIEF YOU ALSO SAID THE JUDGE SHOULD HAVE FOUND SOMEONE
ELSE TO RESCHEDULE AND SHOULD HAVE HAD SOMEONE ELSE PRESIDE OVER THE TRIAL IN AUGUST.
THAT'S ALSO NOT SOMETHING THAT YOU EVER SAID BEFORE THE TRIAL COURT JUDGE, CORRECT? DID
YOU EVER ASK THE TRIAL COURT JUDGE OR EVEN SAY CLEARLY, YOU KNOW, AUGUST 22ND IS THE
DEADLINE IF THE JURY IS NOT SWORN BEFORE SUGGEST 22ND, MIED CLIENT WILL NOT BE ABLE TO BE
CONVICTED OF THIS P CHARGE AND GET THIS CHARGE WILL JUST BE DISMISSED AND THEREFORE THE
JURY HAS TO BE SWORN BY AUGUST 22ND OR THIS SHOULD BE TRANSFERRED TO ANOTHER JUDGE.
SHANE D. AVIDAN: I THINK THE CONTINUANCE ISSUE THAT HAD THE STATE REQUESTED
CONTINUANCE MAYBE THAT WOULD HAVE BEEN A LOGICAL THING FOR THE DEFENDANT TO SAY BUT WHAT
WE'RE DEALING WITH HERE IS REALLY KIND OF A HYPOTHETICAL RETROACTIVE CONTINUANCE ON MALE
WHERE THE STATE HAS GONE BACK AND SAID I CAN FIND GOOD CAUSE IN THE APPELLATE DIVISION
IN THE RECORD SO IT'S ALMOST LIKE THERE WAS A CONTINUANCE. BUT I THINK
WITHOUT -- JUSTICE PATTERSON: SO THAT, HAPT AT I WASN'T REFERRING TO A KOVENT
WANS, I WAS REFERRING TO WHETHER OR NOT THE DEFENDANT WAS BROUGHT TO TRIAL WHEN JURY
SELECTION STARTED IN JULY AND WHEN THIS WHOLE CONVERSATION, I'D AGREE THAT THE APPELLATE
DIVISION, YOU KNOW, HAD THAT SECOND WHERE THEY ACCIDENTALLY MISQUOTED SOMETHING TO THE
DEFENDANT WHEN IT WAS ACTUALLY THE COURT HAD SAID THAT BUT READING THROUGH THE TRANTS
SCRIPT I DIDN'T SEE ANYTHING WHERE THE DEFENDANT SAID AUGUST 22ND IS THE DATE THE JURY
HAS TO BE SWORN BY THERNGS I REQUEST THAT THIS CASE BE TRANSFERRED TO A DIFFERENT JUDGE,
IF YOU ARE NO AVAILABLE IN AUGUST, JUDGE. ORIGINALLY IT WAS MS THAT DEFENSE COUNSEL WAS
UNAVAILABLE IN AUGUST RIGHT AND THEN DEFENSE COUNSEL COMES BACK AND SAYS OH, I DO HAVE
A FEW DAYS OF AVAILABILITY IN AUGUST. BUT DID THE DEFENSE COUNSEL EVER SAY ONTD RECORD
EITHER TRANSFER TO ANOTHER JUDGE OR THE JURY HAS TO BE SWORN BY AUGUST 22ND? SHAKEN SHAEN
YEAH SHTHS WELL, DEFINITELY THE DEFENSE COUNSEL DID NOT ASK FOR A, I DON'T THINK THERE WAS
AN OBLIGATION TO DO SO. IF THEY JUDGE SAID I'M GOING TO GRANT A CONTINUANCE BECAUSE OF
MY PERSONAL CONFLICT, I THINK IT WOULD HAVE BEEN A LOGICAL RESPONSE TO THAT TO REQUEST
THE CASE BE TRANSFERRED BUT I DON'T THINK THE DEFENDANT HAS TO DO THAT ON ITS OWN WITH
NO CONTINUANCE HAS BEEN SUGGESTED BY THE COURT OR STATE. IN TERMS OF AVAILABILITY
IN AUGUST, THE DEFENSE COUNSEL, THERE'S NOTHING IN THE RECORD THAT DEFENSE COUNSEL WAS
UNAVAILABLE NO AUGUST, HIS VACATION WAS IN SEPTEMBER WHICH IS AFTER THE DEADLINE SO IT
JUST PLAYED NO ROLE IN WHETHER THE DEAD LIEVEN WAS MISSED. IT'S TRUE THAT THE HE CUFF
MISSED THE DEADLINE BY A LITTLE LESS IF DEFENSE COUNSEL HADN'T GONE 0 VACATION IN SEPTEMBER,
BUT THAT REALLY PLAY KNOWS ROLL IN THE AUGUST TWEKD P DEADLINE NOT BEING MET.
I THINK IT'S IMPORTANT -- JUSTICE PATTERSON: THE OVERALL IMPRESSION TO THE
JUDGE DEFENSE COUNSEL WAS IN IN ANY RUSH TO GET DONE AND HAD SOME SORT OF ISSUE AT THAT
STAGE. SHANE D. AVIDAN: I CAN'T JUST AGREE WITH THAT, BACKING UP THE CASE
STARTS WITH MR. AMER'S IAD DEMAND, AUK 22ND DEADLINE. JUSTICE PATTERSON:
TAKE TO US JULY, AT THIS POIPTS WE'RE THE GETTING CLOSE AND THE LAWYER IS TALKING ABOUT
P VACATION, I VLS A VACATION IN AUGUST, TOO, JUDGE. OF. SHANE D. AVIDAN:
IN SEPTEMBER. JUSTICE PATTERSON: BUT ALSO AUGUST WASN'T GOOD FOR THE LAWYER.
SHANE D. AVIDAN: I DON'T AGREE THAT AUGUST WASN'T GOOD. BUT IN JULY WITH
THE MOTIONS HAVE BEEN DECIDED, THE JUDGE IS REAFFIRMED HITS COMMITMENT TO THE AUGUST 22ND
DEADLINE SHTHS EVEN AFTER THE MOTIONS ARE DECIDED, AND WE'RE TALKING K ABOUT WHEN IS
THE TRIAL GOING TO OCCUR AND THE IAD OBJECTION WASN'T MADE. HE REMINDS THE COURT OF THE
AUGUST 22ND DEADLINE, HE SAYS I HAVE THE DAYS IN AUGUST TO GET THE DONE, EVEN TO GET THE
DONE EVEN BEFORE THE DEADLINE NOT JUST TO GET IT STARTED, AND I OBJECT TO GEING PAST THEP
AND HE CITES INTO A SUPREME COURT CASE THAT'S NOT PERFECTLY ON POENT BUT THE SAYS A DELAY
KIND OF MATTERS THROUGHOUT THE PROCEEDINGS, AND WHAT HE REALLY OBJECTED TO IS THIS 44-DAY
ADJOURNMENT WHICH IS I THINK IT'S ABNORMAL AND UNUSUAL BY ANY STANDARD JUST TO TAKE 44
DAYS OFF BETWEEN JURY SLENGZ THE START OF TRIAL PROPER. THAT'S NOT SOMETHING YOU WOULD
ORDINARILY DO. YOU'RE NOT GOING TO SELECT A JURY IN JULY FOR TRIAL THAT'S GOING TO START
IN SEPTEMBER UNLESS THERE'S SOME SPEEDY TRIAL PROBLEM THAT YOU'RE TRYING TO GET AROUND.
I THINK EVEN IF YOU ADOPT THE SPEEDY TRIAL, THE STAND TAR THES FEDERAL COURTS HAVE SAID
USUALLY TRIAL STARTS WITH THE START OF JURY SLEK BUT NOT WHEN THERE'S SOME WEIRD THING
LIKE THIS WHERE THATS THE JUMP KNOWS THAT THEY'RE NOT AVAILABLE AND INEVITABLE THAT THERE'S
GOING TO BE A LARGE DELAY LIKE THIS. SO JUST THINK IT WAS NOT -- ACHT APARTMENT WHY
NOT THE IAD CASE THAT HOLDS SDEFT BROUGHT TO TRIAL WHEN JURY SELECTION STARTS?
SHANE D. AVIDAN: THERE ARE TWO OF THOSE, BOTH FROM THE STATE COURTS, I THINK THEY'RE
UNFORTUNATELY INCORRECT. THEY'RE NOT BINDING AND THEY'RE JUST NOT FOLLOWING THIS
INTERPRETATIVE METHODOLOGY OF WHAT THE PHRASE MEAN IN 1957. IF THE KWAS OF NEW HAMPSHIRE
ONE, THE MORE RECENT I AM PAR RECAN NAN AND THAT HAS ALL THE SAME PROBLEMS, SO THE SPEEDY
TRIAL ACT IT DOESN'T USE THE PHRASE BROUGHT TO TRIAL. YOU KNOW, IT CAN'T HELP YOU INTERPRET
THAT PHRASE SO THAT'S THE RESULT THAT THE FEDERAL COURTS HAVE LANDED ON BUT THAT'S ON
THE BASIS THAT, YOU KNOW, THE SPEEDY TRIAL ACT COMMENCES, THERE'S NO THERE'S NO CLEAR
WOO IT MEANS SO THE FEDERAL COURTS HAVE TRIED TO BALANCE THE POLICIES, THEY SAY DEFENDANT
INTEREST IN THE SPEEDY TRIAL BUT WE HAVE AN INTEREST IN EFFICIENCY AND THAT'S KIND OF
WHAT THEY'VE LANDED ON. BUT THERE'S EVEN THEN THERE'S A HUVEN ASTERISK, A HUGE EXCEPTION
TO THAT RULE. SO DEFINITELY IF YOU ADOPT THAT RULE YOU SHOULD BRING WITH
IT THAT EXCEPTION BUT I THINK IT'S JUST MUCH CLEANER AND BETTER SOLUTION TO GO WITH THE
HISTORY WHICH IS THE ATTACHMENT OF JEOPARDY AND THAT'S GOING TO BE A MUCH MORE ADD MIN
ISTER ABL RULE AND IT'S GOING TO PROTECT THE DEFENDANT'S INTEREST. JUSTICE
WAINER APTER: HAVE THERE BEEN ANY KWORTS THAT HAVE HEAD THE UPT IAD. SHANE D.
AVIDAN: UNDER THE PRESIDENT SCISSOR STATUTE ARIZONA AND CALIFORNIA HAD SAID THAT, I THINK
THE LIPG KICH IS DOUBLE JEOPARDY PREVENTS TWRO OR MORE TRIALS, IF THERE'S MULTIPLE TRIALS
THAT'S GOING TO TAKE MG ERR THAN A SINGLE TRIAL. SO IF YOU WANT THE SPEEDY TRIAL RIGHT
TO MEAN SOMETHING IT CAN'T BE THAT THE STATE CAN JUST DISMISS IT WITHOUT PREJUDICE, UP
UNTIL THE VERY END AND THEN THERE'S REALLY JUST NOTHING SETHING THE SUBSEQUENT TIME.
HAPT APARTMENT SINCE 1957 THERE HAVEN'T BEEN ANY CASE THAT HELD THE ATTACH PT FOR ACHLT
OOCHLT D PURPOSES P THERE'S TWO CASE THAT GO THE OTHER WAY AND THAT'S IT. SHANE
D. AVIDAN: I THINK THIS ISSUE SHOULDN'T ARISE BECAUSE YOU KNOW JURY SELECTION SHOULD
TAKE NO MORE THAN 1 TO 3 DAYS IN MOST CASES, IT SHOULDN'T BE STARTING ON THE 180TH DAY
AND THE VAST MAJORITY OF CASE YOU DON'T RUN IN THIS ISSUE OF TRYING, YOU KNOW, START THE
JURY SLEKDZ JUST TO GET IT IN BEFORE THE DPAED LIEP AND PUT THE OFF UNTIL AFTER, IT'S
JEP RL REGARDED -- JUSTICE PATTERSON: I'D WOULD THINK IT WOULD HAPPEN A
LOT, GIVEN THE PRECIOUS ON COURTS, HE IS PRESSURE ON COURTS, ESPECIALLY NOW, MANY ISSUES
THAT CAN ARISE IN GETTING A CASE PREPARED FOR TRIAL. I WOULD THINK, IF WHAT YOU'RE
SIGNALLING IS THAT THE ABSENCE OF CASES SUPPORTING YOU DURING A LATER TIME FRAME IS EVIDENCE
THAT THE ISSUE DOESN'T COME UP, I JUST DO THAT SEE THAT. SHANE D. AVIDAN:
IT'S COME UP TWICE T I ADMIT THAT. JUSTICE PATTERSON: THE SAYING THIS A
RARE ISSUE, I WOULD THINK THIS IS AN ISSUE THAT WOULD COME NUP A LOT OF PLACES. SHAKEN HAN
IN THE EARLY 1970S THERE WAS KIND OF A REBELLIN OF THE FEDERAL COURTS AGAINST THE SPEEDY
TRIAL ACT, IN SOME CASE THEY WOULD DO 10 JURY SLEKS ON THE NEXT DAY AND THAT WOULD BE THE
NEXT 3 MONTHS AS THEY WOULD TRY THOSE CASES, IT WAS MOSTLY ADDRESSED BY LOCAL RULES SAYING
DON'T DO THAT AND MOSTLY STOPPED AND THAT'S KIND OF WITH THIS DOCTRINES COMES UP THE SMEED
DETRIAL ACT. IT'S RARED RAS AN EVASION OR CIRCUMVENTION OF STATUTE AND THAT'S WHAT THE
P FEDERAL COURTS HAVE SAID ESPECIALLY IN THE 6TH SIR DID IT KATSZ THEY CITE IN HOUR BRIEF,
EVEN 13 DAYS CAN BE TOO MUCH ACCORDING TO SOME OF THE SPEE DETRIAL ACT CASES, WHEREVER
YOU DRAW THE LINE I THINK 44 DAYS IS WAY TOO MUCH. JUSTICE FASCIALE: IF
THE MOTION SO SUPPRESS IS FILED LATE SHTHS YOU'RE SUGGESTING THAT THE JUDGE SWEAR IN THE
JURY AND DO THE MOTION. SHANE D. AVIDAN: I'M SLUL NOT SUGGESTING THAT YOU
HAVE CASE MANAGE. ORND SAW THITS MOTION IS LATE MAYBE HIECHL NOT GOING TO CONSIDER IT
OR YOU DO A KOVENT WANS AND SAY I WILL CONSIDER IT, BUT IT'S GOING TO TAKE MORE TIME AND
MAYBE EVEN CALL IT A WAIVER BUT I THINK THAT'S WHY RELY ON THAT WHEN YOU HAVE SUCH A CLEAR
SOLUTION TO IT IN THE CONTINUANCE PROVISION. JUSTICE WAINER APTER: HERE
DIDN'T THE JUDGE ALSO OFFER A TRIAL DATE OF JUNE BUT DEFENSE COUNSEL SAID NO.
SHANE D. AVIDAN: THANK YOU FOR RAISING THAT. SO THE U S, IN JUNE THIS CASE AND ANOTHER
KATE STATE VERSE CRUISE WERE BOTH KWESHLD FOR JUNE 9TH AND THERE'S A LETTER FROM THE JUDGE
IN THE RECORD THAT SAYS I WANT TO DISCUSS IT IN CONFERENCE AND I THINK BOTH THE STATE AND
THE ATTORNEY GENERAL ADMIT IN THE BRIEFS WE DON'T KNOW WHAT WAS SAID IN THE CONFERENCE,
THERE'S NO FRANCE TRANSCRIPT, SO I THINK IT'S FAIR TO ASSUME DEFENDANT SAYS LET'S TRY
CRUISE 1ST AND THAT'S WHY THE CASE WAS DELAYED. THAT'S A SILENT RECORD THAT'S CONSTRUED
AGAIN THE CASE, WE CITE CASE FOR THAT IN OUR REPLY BRIEF. YOU THINK ABOUT
THE POSITION DEFENSE COUNSEL IS, HE RETCHES TWO CLIENTS IN TWO DIFFERENT CASES, ACCOUNTS'
NOT HIS PLACE TO CHOOSE WHICH OF THEM IS GOING TO HAVE THEIR SPEEDY TRIAL RIGHT HONORED,
AND WHICH NOT, IT'S A BIT OF A CONFLICT OF INTEREST AND JUST AN IMPOSSIBLE CHOICE FOR
HIM TO MAKE. JUSTICE PATTERSON: YOU DON'T THINK THE DEFENSE LAWYER ANY OF
THE RECORD MAY HAVE SUGGESTED WHICH CASE SHOULD GO FIRST. SHANE D. AVIDAN:
CERTAINLY NOT IN THE ROAR. I THINK IT'S JUST AS PLAUSIBLE THAT THE STATE WOULD HAVE
REQUESTED IT, BECAUSE IF YOU REMEMBER ON THE DATE OF THE CONFERENCE, THE SUPPRESSION MOTION
HASN'T BEEN DECIDED AND AS THE ATTORNEY GENERAL AND STATE LAY OUT IT'S A VERY TOUGH DECISION
TORE THEM TO PROCEED TO A TRIAL WITHOUT MOIING THE KNOWING THE RESULTS OF THE MOTION.
AND THE JUDGE OFFERS I CAN MOVE THE CRUISE CASE EARLIER BECAUSE IT'S A SHORTER TRIAL BUT
HE SAYS LIKELY I CAN'T MOVE AMER TO THE EARLIER BECAUSE IT'S A LONGER TRIAL. SO I DON'T
THINK HE HAD IT'S FAIR TO SAY HE HAD THE OPTION OF AN EARLIER TRIAL. I JUST DON'T THING
THE HE A FAIR TO SPECULATE ONE WAY OR THE OTHER WHAT WAS SAID IN THAT CONFERENCE AND TRY
TO MRAM MR. AMER FOR WHAT HAPPENED, IT'S JUST NOT IN THE RECORD AND IF THE STATE WANTS
TO RELY ON SOME EXCEPTION, THEY'VE GOT TO MAKE A RECORD. CHIEF JUSTICE RABNER:
ARE THERE #09D POINTS YOU WANTED TO RAISE BEFORE DRAWING THIS PART OF THE ARGUMENT TO
A CLOSE. SHANE D. AVIDAN: NO. CHIEF JUSTICE RABNER: WE'LL
HAVE YOU BACK FOR REBUTTAL. MR. PLACE PLAISTED. JAMES A. PLAISTED: MR.
CHIEF JUSTICE MAY IT PLEASE THE COURT. OF FD RUL SMEED DETRIAL ACT SHOULDN'T HAVE ANY MRIK TO
THIS CASE. IT WAS AN ENACTED 20 TO 30 YEARS LATER. IT DOES NOT PURPORT TO AMEND THE
COMPACT, COMPACTS ARE KIND OF UNIQUE IN THAT REGARD, AND IN 1988, CONGRESS DID AMEND THEIR
PORTION OF THE COMPACT. THEY DID NOT AMEND IT TO INCLUDE EXCLUDABLE TIME. THEY AMENDED
IT TO INCLUDE ONE LITTLE PORTION OF THE FEDERAL SPEEDY TRIAL ACT AND THAT IS WE HAD YOU
DISMISS A FEDERAL CASE BECAUSE IT WAS ONLY APPLICABLE TO CASES WHERE THEY WERE SENT TO
THE FEDERAL COURT, WHETHER YOU DISMISS THE CASE WITH PREJUDICE OR WITHOUT. AND SO THAT
ACTION BY CONGRESS I WOULD SUGGEST STRONGSLY STANDS IN FAVOR OF THIS COURT NOT AMENDING
THE IAD TO INCLUDE EXCLUDABLE TIME PROVISIONS OF THE SPEEDY TRIAL ACT. THERE'S A MORE FOR
FULL REASON FOR NO DOING SO AND THIS IS A STATE PROSECUTION. THE FEDERAL SPEEDY TRIAL
ACT SDUFT DOESN'T APPLY TO A STATE PROSECUTION. AND. ALSO, AND LASTLY, I
WOULD REFER TO THE COURT TO NO, VERSUS HILL IT'S A SUPREME COURT CASE AND IN THAT CASE,
THAT SUPREME COURT AS PER JUSTICE ASK A LEAH SAID THARTS ONLY TWO KAY TO EX STEN THE TRIAL
DATE, 1 IS BY A CONTINUANCE AND ONE IS IF THE DEFENDANT IS UNRABL TO STAND TRIAL, BO OTWOR
WAYS, WHEN THE DEFENDANT IS NOT AGREEING TO IT AND THOSE T TWO WAYS. AND
SO I, IN THIS CASE, I UNDERSTAND ALL THE CONCERNS ABOUT THE HYPOTHETICALS. I THINK THE
CONTINUANCE PROVISION WAS CREATED FOR THAT. I DON'T HAVE AS MUCH TROUBLE SAYING YES,
THOSE ARE ALL GOOD REASONS FOR A CONTINUANCE. BUT THE IAD PROVIDES FOR THAT.
JUSTICE PATTERSON: SO IF A TRIAL COURT IS FACED WITH A SITUATION WHERE MOTION TO SUPPRESS
IS MADE, IT'S GOING TO INTERFERE WITH THE CLOCK, THE COURT THEP SAYS WE'RE GOING TO GRANT
THE KOPT WANS AND THE DEFENDANT OBJECTS AND SAYING WAIT A MINUTE, I'M ENTITLED TO BOTH
THE RIGHT TO FOIL A MOTION TO SUPPRESS AND MY RIGHTS UNDER THE COMPACT, IS THE TRIAL COURT
OH MRIECHD TO SAY THERE'S GOOD CAUSE FOR A CONTINUANCE? BECAUSE YOU'RE SAYING AS YOUR
COLLEAGUE IS, THE PANACEA IS THE CONTINUANCE. P. JAMES A. PLAISTED: I ALWAYS
SAY YOU TURN TO THE DEFENDANT AND ACTUALLY ASK HIM WHY ISN'T THIS ONE OF THOSE SITUATIONS
WHERE THE DEFENDANT IS PUT ON THE SPOT AND SAID, LOOK, DO YOU WANT TO FOLLOW YOUR ATTORNEY'S
ADVICE TO PURSUE THIS MOTION AND GIVE UP SOME TIME OR NOT? AND P THEN YOU HAVE IT ON
THE RECORD WHETHER HE HAS WAIVED OR NOT. THERE'S NO CONFUSION. JUSTICE
PATTERSON: SO A KOVENT WANS SHOULD BE GRANTED IN ANY IN, A DILEMMA LIKE THIS COURT WAS
FACED WITH. JAMES A. PLAISTED: YES. MAT PAT THE CONTINUANCE SHOULD BE THE
GRANTED ON GOOD CAUSE? JAMES A. PLAISTED: YES. BUT IT DOESN'T SAVE THIS
CASE AND MR. AMER. BECAUSE IN THIS CASE, NO ONE MOVED FOR A CONTINUANCE.
JUSTICE PATTERSON: WHAT IF THE DEFENDANT THEN SAYS, NO, I DON'T KNOW WHAT HE'S SAYING,
I WANT BOENL PURSUE MY RIGHTS UNDER THE CONSTITUTION AND I WANT TO ALSO, I UNDERSTAND
THERE'S A COMPACT THAT ALLOWS ME TO GET HOME, GET OUT OF HERE, I LIKE THAT, TOO.
JAMES A. PLAISTED: VERY TACTICAL. THE COURT CAN GRANT A CONTINUANCE ANY WAY.
JUSTICE PATTERSON: SHOULD GROONT THE CONTINUANCE. JAMES A. PLAISTED: SURE
IF IT'S A CONTINUE TUL MAGNITUDE I WOULD THINK SO IT'S NOR THE COURT TO DECIDE AND THE
DEFENDANT TO DECIDE WITH HIS COUNSEL AND YOU SHOULD GET A CLEAR ANSWER FROM THE DEFENDANT.
CHIEF JUSTICE RABNER: DO WE REALLY WANT TO PUT DEFENDANTS ON THE SPOT AND
SAY IF YOU WANT THE BENEFIT OF A STATUTORY RIGHT YOU UCH TO WAFB YOFRP TUL RIGHT. IS THAT
THE APPROPRIATE WAY TO ADDRESS THIS PROCEEDING? JAMES A. PLAISTED: I THINK
IT'S A WAY TO DEVELOP THE FULL RECORD. AND IT'S A WAY TO KNOW HOW IMPORTANT IT IS TO
THE DEFENDANT AND THE IF THE COURT IS PUT IN THAT POSITION, IT MAY WELL GRANT A CONTINUANCE
OVER HIS OBJECTION AND I THINK IT WOULD BE REL FOUNDED. JUDGE SABATINO:
I WAS GROIING TO ASK YOU DO YOU AGREE WITH MR. AVIDAN AGREE WITH THE MOVE TO APPEAL BECAUSE
THEY LOST THE MOTION, IS THAT GOOD CAUSE. APPLIES APPLIES P. JAMES A.
PLAISTED: I WOULD SAY I AT A. JUDGE SABATINO: IF THEY LOOSE IN THE APPELLATE
DIVISION AND COMELY TO SUPREME COURT OF NEW JERSEY IS THE CLOCK STILL TOLLED. AND THAT'S
EN XANSED IN THE LANGUAGE OF THE IAD, THESE INTERSTATE COMPACTS ARE KIND OF UNIQUE
ANIMALS AND SO BUT AGAIN I WOULD SIGH THAT DOESN'T SAVE MR. AMER PS CAUSE BECAUSE NO ONE
MOVED, NOT THE PROSECUTOR, NOT THE DEFENSE AND IT'S NOT A SYSTEM WHERE THE COURT SAYS
TWO MONTHS DOWN THE ROAD, SO, WELL, IF SOMEBODY HAD MOVED FOR A CONTINUANCE TWO MONTHS AGO,
I WOULD HAVE GRANTED IT. THAT ISN'T OUR SYSTEM AND IT SHOULDN'T BE AND I, WE'RE FOCUSING
ON WHETHER DEFENSE COUNSEL WAS ADEQUATELY DOING THE RIGHT THING WHS HE SAID, LOOK, I'M
AVAILABLE NO AUGUST, I THOUGHT HE WAS MAKING A APPROPRIATE RECORD LAT THAT POINT AND I
FAULT THE PROSECUTOR. IT IS THE PROSECUTOR'S BURDEN TO PROTECT HIS CASE. THAT'S IN MANY
CASES, AND IT'S THIS PROSECUTOR WAS WOEFULLY SILENT. HE HAD A VACATION SCHEDULE IN
AUGUST, TOOSHGS OR WHATEVER REASON, HE DIDN'T SAY, OKAY, WHEN THE DEFENSE ATTORNEY SAID
I CAN TRY IN IT AUGUST, HE DIDN'T SAY WELL WE CAN TRY IT IN AUGUST, TOO, HE DIDN'T SAY
WE CAN'T, HE JUST SAID NOTHING. AND SAID, THE TRIAL COURT CAME UP WITH I THOUGHT WAS
ERRONEOUS PATH TO DO SO. YOU KNOW, UNABLE TO STAND TRIAL IS, YOU KNOW, IT'S SPECIFIC
WORDS, THERE AREN'T RM PT P HYPOTHETICALS, ILLNESS THE DEFENDANT ESCAPED AND FLED, IF
HE'S ON TRIAL ELSEWHERE, AUM OF THOSE ARE UNAVAILABLE TO STAN TRIAL IN MY VIEW.
BUT I DON'T THINK UNABLE TO STAND TRIAL INCLUDES MOTIONS. MOTIONS ARE SOMETHING
WITHIN THE COURT'S CONTROL. MOTIONS ARE LIKE IN MANY CASES THEY SAY CONGESTION IS NOT
GOOD GROUNDS FOR KOPT WANS, COURT CONGESTION CAN BE HANDLED BY GOING TO AN ASSIGNMENT
JUDGE LIKE CHIEF JUSTICE RABNER WROTE IN I FORGOT THE NAME OF CASE, MECHANICAL ROY I THINK
IT WAS THAT GO TO THE ASSIGNMENT JUDGE, YOU CAN GOEF TO THE CRIMINAL A SIGN MENTS JUDGE,
HE COULD, YOU KNOW, THERE ARE THINGS THAT CAN BE DONE. THE PROSECUTOR COULD HAVE SUGGESTED
ANY NUMBER OF THOSE THINGS BUT WAS SILENT. AND SO HE FAILED, IN MY VIEW, TO PROTECT HIS
CASE AND IT OUGHT TO BE DISMISSED. UNFORTUNATELY FOR THE STATE. JUSTICE WAINER
APTER: WHY IS THE NEW JERSEY COURT KRIEL THAT SAYS TRIAL CAN'T PROCEED WHEN SIGNIFICANT
PRETRIAL MOTION ARE PENDZING. JAMES A. PLAISTED: THE SPLIT IN THE CIRCUITS
BECAUSE THE FACT THERE'S SO MANY WEIGHING ON ONE SIDE IS BECAUSE THE FEDERAL COURTS IN
THOSE CASES WERE COULDN'T TRUEING BOTH THE FEDERAL SPEEDY TRIAL ACT AND THE COMPACT.
THIS COURT IS NOT DOING THAT. THIS IS A STATE PROSECUTION. ALMOST ALL OF THOSE, IF NOT
ALL OF THOSE, WHEN THEY WERE FORTSED TO COULDN'T TRUE BOTH ARE CASES THAT CAME OUT AND
THEN LOOKED TO THE SPEEDY TRIAL ACT FOR DIED NS GUIDANCE. THEY HAVE FEDERAL CASES, THEY
ARE FEDERAL PROSECUTIONS, THEY'RE NO FEDERAL COURTS. AND SO THAT'S WHY THE SPLIT IS
DIFFERENT THAN THIS CASE. JUSTICE PATTERSON: I MAY HAVE MISSED SOMETHING
BUT I DON'T THINK GL I DON'T SEE HOW THAT'S SPOS SIFS TO JUSTICE QUESTION ABOUT THE IMPACT
OF THE COURT RULE IN NEW JERSEY. PLACE MACE I WAS GETTING TO IT IN A ROUND ABOUT WAY.
JUSTICE PATTERSON: I MISUNDERSTOOD. JAMES A. PLAISTED: THAT
THOSE CASE THEY DO CONSIDER IT AND IN THIS CASE CAN'T IGNORE THE STATE LAW, IT EXISTS,
IT PROVIDES GUIDANCE. I DON'T THINK IT'S DETERMINATIVE BECAUSE THESE COMPACTS ARE
UNIQUE CREATIONS. AND JUS DISSAID THERE ARE TWO WAYS THAT YOU CAN EXTEND TIME, UNAVAILABILITY
OF THE DEFENDANT TO STAND TRIAL AND A CONTINUE WOONS. AND SO YOU MIGHT LOOK TO THE STATE
SPEEDY TRIAL ACT FOR DPIED DANCE ON WITHER THE KOPT WANS IS APPROPRIATE, BUT IT'S NOT,
IT'S NOT DETERMINATIVE. JUSTICE SOLOMON: IT'S NOT DETERMINATIVE BUT IS THE
NEW JERSEY COURT RULE A CONSIDERATION. JUSTICE WAINER APTER: I'M NOT REFERRING
TO THE STATE, SORRY, THE STATE SPEEDY TRIAL ACT, I'M JUST TALKING ABOUT THE RULE THAT
SAYS A TRIAL CANNOT PROCEED WHILE SIGNIFICANT PRETRIAL MOETHSS REMAY HAVE BEEN PENDING.
JAMES A. PLAISTED: I THINK THAT GAP COULD BE USED AS GUIDANCE FOR GRANTING
A CONTINUANCE AND PROBABLY SHOULD BE. BUT I DON'T THINK IT'S DETERMINATIVE IN THE COMPACT
SETTING BECAUSE IT WASN'T INTENDED TO AMEND THE RULE, ALTHOUGH I WASN'T A DRAFT FER OF
IT, I ASSUME AND IT DOES NOT ADDRESS THE COMPACT ITSELF. BUT, OF COURSE, THE COURT CAN
LOOK TO IT. CHIEF JUSTICE RABNER: WE HAVE CERTAIN PARTS OF THE COUNTRY
WHERE YOU CAN LOOK AT THE FEDERAL SPEEDY TRIAL ACT TO INFORM THE IAD AND IF YOU'RE IN
FEDERAL COURT, FOR EXAMPLE, FOR THE PROSECUTION AND 180-DAY CLOCK APPLIES, YOU WOULD LOOK
TO THE FEDERAL SPEEDY TRIAL ACT AND THE MOTIONS COULD BE DLEED UNDER THE 180 DAYS. BUT
IN THAT VERY SAME STATE IF YOU WERE ACROSS THE STREET IN STATE COURT ARE YOU SUGGESTING
YOU COULD NOT LOOK TO OF EITHER THE FEDERAL LAW OR A STATE, A COMPARABLE STATE LAW TO
AMEND PENDING MOTIONS? MRAGS MACE I'M NOT SAY. JAMES A. PLAISTED: I DON'T THINK
YOU SHOULD BE LOOK AT THE FEDERAL SPEEDY TRIAL ACT IN THIS COURT. CHIEF JUSTICE
RABNER: WHY NOT. JAMES A. PLAISTED: BECAUSE THIS A STATE PROSECUTION. MOST
OF THOSE CASES THAT COME OUT SAYING WE HAVE TO READ THEM IN PERI MA TIER YA, ALMOST ALL
OF THAT THEM ARE FEDERAL PROSECUTIONS WITH A FEDERAL PROSECUTOR IS RECEIVED THE CASE,
TE IS APPLYING FEDERAL LAW, HE ALSO AND THE COURT ALSO HAS TO APPLY IF YOU HAD RUL SPEEDY
TRIAL ACT SO LOGICALLY, THEY ARE LOOKING AT BOTH. AND SHOULD. IN THIS CASE --
CHIEF JUSTICE RABNER: MY QUESTION IS THIS AND PT YOU'VE ARGUED SFRONGLY THAT THE STATE
SPEEDY TRIAL ACT SHOULD NOT BE LOOKED AT. JAMES A. PLAISTED: JUST IN THE
COMPACT IT HAS JUDGE SAID THERE'S TWO WAYS YOU LOOK AT THESE WORDS AND YOU INTERPRET THESE
WORDS. I, OF COURSE, AGREE THAT OUR RULES SHOULD BE LOOKED AT FOR CONTEXT, BUT I DON'T
THINK THEY AMEND THE INTERSTATE COMPACT AND THE FEDERAL CONSTRUCTION OF THOSE TRUE TWO
PROVISIONS THAT ARE CONTROLLING IN THIS CASE. RAB RAN I UNDERSTAND YOU DON'T THINKING
THAT I AM PERI MA TIER YA APPLIES AND THAT THE FEDERAL SPEEDY TRIAL ACT ACT SHOULD NOT
BE LOOKED AT. JAMES A. PLAISTED: YES. CHIEF JUSTICE RABNER:
CERTAINLY SHOULDN'T LOOK AT THE STATE SPEEDY TRIAL ACT ACT, DID I UNDERSTAND THAT
CORRECTLY. APPLIES PLACE I'M TRY TO RESTATE IT. THE STATE'S SPEED TEE TRIAL STATUTE SHOULD BE
LOOKED AT FOR CONTEXT. BUT I DON'T THINK IT CAN BE READ TO AMEND THE INTERSTATE COMPACT.
CHIEF JUSTICE RABNER: FAIR ENOUGH. SO WHAT I'M WONDERING CAN A STATE COURT
JUDGE SAID ALL RIGHT MR. PLAISTED HAS MADE THIS FINE AGO MENT SO I KNOW I CAN'T LOOK AT THE
STATE SPEED DIE TRIAL ACT, I'M GOING TO LOOK AT THE PARALLEL PROVISION IN THE FEDERAL
SPEED TEE TIME ACT AND TOLL THE PERIOD FOR MOTIONS. JAMES A. PLAISTED:
I DON'T THINK A STATE COURT SHOULDN'T BE LOOKING TO THAT. IT SHOULD BE LOOKING TO OUR
RULE FOR CONTEXT. CHIEF JUSTICE RABNER: OUR RULE BEING? JAMES
A. PLAISTED: I FORGOT WHAT THE RULE IS THE STATE SPEEDY TRIAL ACT THAT FLUS JUS SIS SA
BATINO WAS REFERRING TO. THE SPEEDY TRIAL ACT. CHIEF JUSTICE RABNER: EAT
WAY, IF THIS COURT WOULD DETERMINE THAT ONE COULD LOOK AT COMPARABLE RULES, YOU COULD
LOOK AT, YOU COULD LOOK AT THE STATE. JAMES A. PLAISTED: OF COURSE. YOU'RE
ENTITLED TO LOOK AT ANYTHING YOU THINK IS APPROPRIATE, OF COURSE. AND I JUST DON'T
THINK IT'S APPROPRIATE TO BE CONSTRUING THE FEDERAL SPEEDY TRIAL ACT THAT'S GOVERNING
EITHER THE COMPACT IN THIS COURT OR READ INTO THE COMPACT BECAUSE, A, IT'S A STATE PROSECUTION,
THE FEDERAL SPEEDY TRIAL ABLTH DOES NOT XOORT TO APPLY TO IT IN ANY WAY; AND SEBLGDZ,
FOR THOSE CASES THAT DO APPLY, THEY'RE ALMOST ALL, IF NOT ALL, IN FEDERAL COURT WITH A
FEDERAL COURT MUST LOOK AT BOTH. AND SO I WOULD DISTINGUISH ALMOST ALL THE GO AGAINST
US ON THAT GROUND, THE TWO THAT GO, THAT SAY IT SHOULD BE DISMISSED ARE CASES THAT ARE
LIKE THIS CASE IN THAT THE COURT WAS AFTER THE FACT ANALYZING FROM THE PERSPECTIVE OF
STATE PROSECUTION AND SO THOSE TWO CASES 0 I THINK THEY'RE VERY APT BECAUSE IN THOSE CASES
THEY SAID THAT A START AND STOP PLAIN IS ISN'T APPROPRIATE UNDER THE INTERSTATE COMPACT
AND I THINK THOSE CASES ARE PROPERLY DECIDED. AND I THINK THE FRAMEWORK HAS TO START
WITH HILL. WHICH IS JUSTICE'S OPINION. RAB RACK THANK YOU COUNSEL.
MICHAEL C. MELLON: THANK YOU, YOUR HONORS. AS INDICATED, THIS CASE
REQUIRES THE COURT TO CONSIDER WHETHER DEFENDANT AMER WAS BROUGHT TO TRIAL
WITHIN 180 DAYS FOR THE PURPOSES OF THE IAD. THE STATE MAINTAINS THAT IT HE WAS.
FIRST, DEFENDANT AMER FILED VARIOUS MOTIONS IN THIS MATTER
WHICH THE STATE -- WHICH THIS COURT SHOULD FIND AUTOMATICALLY TOLL THE 180 DAY
CLOCK AS HE WAS UNABLE TO STAND TRIAL DURING THE PENDENCY OF THOSE MOTIONS.
SUCH REASONING THE GROUNDED IN BOTH THE LANGUAGE AND THE STRUCTURE
OF THE IAD. IT IS ALSO CONSISTENT WITH A READING OF THE IAD IN CONFORMITY WITH
THE ST. A, VARIOUS COURTS, INCLUDING THE APPELLATE COURT BELOW HAVE HELD
THAT SUCH A READING IS APPROPRIATE FOR THE REASONS SET OUT IN THE STATE'S BRIEF.
SECONDLY, JUDGE SMITH ACTED APPROPRIATELY IN FINDING THE MATTER
WAS ALSO TOLLED FOR GOOD CAUSE. SUCH A RULING IS IN ACCORDANCE WITH CASE LAW THAT
INDICATES WHEN THERE IS AN OBJECTION TO WHAT WOULD AMOUNT TO EXCLUDABLE
TIME UNDER THE S T A BUT IS IN THE CON TEGS OF THE IAD A COURT MUST FIND WHETHER
THERE IS STILL GOOD CAUSE FOR THE EXCLUSION. THIRD, WHILE
JUDGE SMITH MADE THE AFOREMENTIONED RULING VIA WRITTEN OPINION, IT IS CLEAR THAT
HE HEARD ARGUMENTS ON THE MATTER WITH THE STATE AND COUNSEL PRESENT IN OPEN COURT,
THUS ADHERING TO THE PROHIBITION ON EX PARTE APPLICATIONS FOR A CONTINUANCE.
THE FACT THAT THE COURT TOOK TIME TO DRAFT A WELL-REASONED OPINION SHOULD
NOT SERVE AS A MEANS TO UNDERMINE THE APPROPRIATENESS OF THE EXCLUSION OF TIME.
FOURTH, THE STATE ASSERTS THAT THE DEFENDANT AMER'S CONDUCT,
WHICH WAS INCONSISTENT WITH THE TIME CONSTRAINTS OF THE IAD SHOULD BE DEEMED TO BE
A WAIVER OF THE RIGHT TO CHALLENGE WHETHER TRIAL WAS PROPERLY COMMENCED
WITHIN THE ORIGINAL DEADLINE OF AUGUST 22ND, 2018. AS THE UNITED
STATES SUPREME COURT NOTED IN NEW YORK V HILL A DEFENDANT NEED NOT MAKE AN AFFIRM
ATIVE REQUEST IN ORDER TO WAIVE UNDER THE IAD. HERE THE DEFENSE FILED MOTIONS
WHICH IMPLICITLY ALLOWED THE COURT TIME TO CONSIDER THEM, ELECTED TO PROCEED FIRST
WITH ANOTHER TRIAL IN PLACE OF MR. AMANTIA'S AND ELECTED NOT TO SWEAR THE
JURY AND TO PROCEED WITH OPENINGS PRIOR TO THE EXPIRATION OF THE ORIGINAL 180 DAY
CLOCK. ALL OF THE AFOREMENTIONED ARE INCONSISTENT WITH
THE DEFENDANT SEEKING THE MOST EXPEDITIOUS TRIAL. ALL OF THE AFOREMENTIONED WERE
THE RESULT OF THE DEFENDANT'S ACTIONS. ACCORDINGLY, SUCH CONDUCT
SHOULD BE DEEMED A WAIVER OF THE ORIGINAL 18 # 0-DAY DEADLINE.
FINALLY, EVEN IF THE COURT FINDS THAT THIS MATTER SHOULD NOT HAVE BEEN TOLLED, THE
DEFENDANT AMER'S TRIAL BEGAN WITH JURY SELECTION, WHICH CONCLUDED AT THE END
OF JULY 2018 AN PRIOR TO THE EXPIRATION OF THE ORIGINAL 180 DAY CLOCK.
ALTHOUGH THE OFFICE OF THE PUBLIC DEFENDER AND DEFENSE AMICUS COUNSEL FOCUS ON
THE SWEARING OF THE JURY AND THE ATTACHMENT OF DOUBLE JEOPARDY, IT CANNOT BE
DENIED THAT SUCH A MOMENT CONCERNS AN ENTIRELY DIFFERENT RIGHT THAN THAT
WHICH THE IAD SEEKS TO PROTECT. THE IAD CONSIDERS A DEFENDANT'S RIGHT
TO COMMENCE TRIAL EXPEDITIOUSLY. DOUBLE JEOPARDY CONCERNS A DEFENDANT'S
RIGHT TO FACE ONE JURY ON A GIVEN CHARGE. IN CONSIDERATION OF THIS
DISTINCTION, COURTS ARE CORRECTLY HELD THAT THE IAD TIME PERIOD TO COMMENCE
IS SATISFIED WHEN JURY SELECTION BEGINS. AND WITH THAT, I WELCOME ANY
QUESTIONS THE COURT MAY HAVE, THANK YOU. THE COURT: WHY DON'T
WE START WITH YOUR FIRST POINT AN IF YOU COULD, ADDRESS THE ARGUMENT THAT WE'VE
BEEN WRESTLING WITH. HOW DOES A LATER ENACTED STATUTE, THE FEDERAL
SPEEDY TRIAL ACT ADOPTED A GENERATION OF THE IAD INFORM THE MEANING OF THE IAD.
MICHAEL C. MELLON: THERE IS A NUMBER OF WAYS, YOUR HONOR
R. AND TO BEGIN, IT ESTABLISHES OR, EXCUSE ME, IT IS --
THERE ARE PRINCIPLES OF STATUTORY, STATUTORY INTERPRETATION WHICH INDICATE THIS
COURT CAN LOOK TO IT. IT IS A LATTER STATUTE AN IT IS A MORE
SPECIFIC STATUTE. AS CITED IN THE STATE'S BRIEF WHEN YOU HAVE A
LATTER STATUTE AN A MORE STAT STA TUT WHICH CONSIDERS THE SAME SUBJECT AREA AS
THE INITIAL STATUTE, IT CAN BE DEEMED AS GUIDANCE IN INTERPRETING THE ORIGINAL
ONE. JUSTICE WAINER APTER: BUT DOESN'T THE LATTER STATUTE
SUPERSEDE AN EARLIER STATUTE ONLY IF THEY CONFLICT AN HERE THERE IS NO CONFLICT
BECAUSE THE S T A JUST DOESN'T APPLY AT ALL. MICHAEL C. MELLON:
THERE ISN'T A CON FLIKS, BUT THERE IS THIS QUESTION OF WHAT DOES UNABLE TO STAND
TRIAL MEAN WHICH IS ONE OF THE FUNDAMENTAL REASONS WE'RE HERE ARGUING THIS.
WHAT THE S T A DOES AN BECAUSE THIS IS AN INTERSTATE COMPACT,
WE CAN LOOK TO AND SHOULD LOOK TO FEDERAL INTERPRETATION OF THESE STATUTES, WHAT
THE SPEEDY TRIAL ACT DOES IT IS IT SET FORTS SPECIFIC REASONS WHY A DEFENDANT
WOULD BE UNABLE TO STAND TRIAL. ONE OF THE REASONS THAT IS SPECIFICALLY
SET FORTH IN THE ST. A IS THAT THERE ARE PENDING MOTIONS SO IT IS CERTAINLY
A STATUTE WHICH THIS COURT CAN LOOK TO AND MULTIPLE JURISDICTIONS HAVE, TO INFORM
WHAT SHOULD BE DEEMED UNABLE TO STAND TRIAL UNDER THE IAD.
JUSTICE WAINER APTER: SO IF THE FEDERAL S T A USED THE SAME WORDS, UNABLE TO STAND
TRIAL AND THEY HAD BEEN INTERPRETED TO MEAN A DELAY RESULTING FROM A PRETRIAL
MOTION THEN I WOULD COMPLETELY UNDERSTAND BUT THE TEXT OF THE FEDERAL ST. A IS
JUST COMPLETELY DIFFERENT IT DOESN'T USE THE WORDS UNABLE TO STAND TRIAL.
IT HAS ONE PROVISION ABOUT ANY PERIOD RESULTING FROM THE DEFENDANT BEING MENTALLY
INCOMPETENT OR PHYSICALLY ABLE TO STAND TRIAL AN THEN A SEPARATE SPPT
PROVISION TALKING ABOUT THE DEFENDANT BEING, DELAYING FROM A PRETRIAL MOTION
THROUGH TO THE CONCLUSION OF THE HEARING. THE STATUTORY TUT
JUST READS COMPLETELY DIFFERENTLY. IT SEEMS LIKE YOU'RE SAYING A STATUTE WITH
DIFFERENT TEXT SHOULD INTERPRET THE IAD WHICH DOES NOT SHARE THAT TEXT.
HOW IS THAT WHAT WE TALK ABOUT WHEN WE'RE TALKING ABOUT
STATUTORY INTERPRETATION. MICHAEL C. MELLON: I THINK THAT GETS BACK
TO THE PRINCIPLE OF I'M PAR REMAT TEAR YEAH THAT HAS BEEN DISCUSSED
PREVIOUSLY THAT WE LOOK TO WHAT IS THE GOAL OF THESE STATUTES, WHAT IS THE AIM THAT
THEY ARE SEEKING TO ACHIEVE. IN BOTH INSTANCES, IT IS TO BRING
ABOUT A SPEEDY TRIAL FOR THE DEFENDANT AND I BELIEVE THAT STATE V. OWED
DOM DOES A VERY GOOD JOB OF PRESENTING HOW THESE STATUTES ARE IN FACT I'M PAR RE
MAT TEAR YEAH. THE COURT THERE COMMENTED ON THE FACT THAT BOTH
STATUTES SERVE THE PUBLIC AN THE DEFENDANT BY REQUIRING PROMPT DISPOSITION OF A
CHARGE, PROVIDE FOR PROMPT TRANSFER AND DETENTION OF AN INDIVIDUAL IN ANOTHER
JURISDICTION. THEY BOTH CONTAIN LIMITS ON TIME BEFORE TRIAL.
THEY BOTH PERMIT EXTENSIONS OF TIME TO BRING A DEFENDANT TO
TRIAL AND THEY BOTH HAVE THE SAME CONSEQUENCE, WHICH IS THAT IF THE DEFENDANT
IS NOT BROUGHT WITHIN THAT TIME LIMIT, THEN HIS INDICTMENT IS SUBJECT TO
DISMISSAL. CHIEF JUSTICE RABNER: SO IF THE FEDERAL SPEEDY
TRIAL ACT WERE TO BE AMENDED FIVE YEARS FROM NOW, WOULD THAT ALSO BE AN APPROPRIATE
SOURCE TO LOOK TO TO INTERPRET THE MEANING OF THE 1957 IAD?
MICHAEL C. MELLON: NOT NECESSARILY. I THINK IT WOULD DEPEND ON THE CONTEXT OF THE
AMENDMENT. I MEAN, WE DID SEE THAT THE SPEEDY TRIAL ACT WAS AMENDED, FOR
EXAMPLE, TO DEAL WITH FEDERAL SPECIFIC PROSECUTIONS, BUT IT STILL IS NONETHELESS
SOMETHING THAT THIS COURT CAN LOOK TO FOR GUIDANCE IN INTERPRETING THE STATUTE,
AGAIN, BECAUSE IT'S A MATTER OF INTERPRETING FEDERAL LAW. JUSTICE
WAINER APTER: EVEN IF A STATUTE HAS A SIMILAR PURPOSE, YOU ACKNOWLEDGE OF COURSE
THAT THE FEDERAL SPEEDY TRIAL ACT HAS MANY DITCH PROVISIONS THAT THE IAD
DOES NOT HAVE SUCH AS THE 70 DAYS VERSUS THE 180 DAYS, COULD A COURT SIMPLY READ
THAT THE IAD EVEN THOUGH IT SAYS 180 DAYS ACTUALLY ONLY ALOSE 70 DAYS BECAUSE
WE'RE READING IT I'M PAR REMAT TEAR YEAH WITH THE FEDERAL SPEEDY TRIAL ACT.
MICHAEL C. MELLON: THAT'S A GREAT POINT YOUR HONOR AN I THINK
THAT'S A POINT THAT DEFENSE COUNSEL MADE. WE'RE NOT ASKING
THAT THIS COURT FIND THAT THE IAD AND THE ST. A ARE IDENTICAL OR SHOULD BE -- JUST
READ THE ST. A IN PLACE OF THE IAD. WHAT WE ARE SAYING IS THERE ARE
CERTAIN AMBIGUITIES IN THE IAD, WE MAINTAIN THAT UNABLE TO STAND TRIAL IS
QUITE CLEAR BUT OBVIOUSLY THERE IS A QUESTION OF INTERPRETATION THAT BRINGS US
HERE. JUSTICE WAINER APTER: DO YOU WANT TO FOCUS ON THAT?
REGARDLESS OF THE ST. A WHAT IS YOUR INTERPRETATION OF THE
WORDS UNABLE TO STAND TRIAL? MICHAEL C. MELLON: EXACTLY AS IT READS,
UNABLE TO STAND TRIAL, MEANING, THAT FOR WHATEVER THE SPECIFIC REASON MAY
BE, THAT DEFENDANT CANNOT PROCEED TO TRIAL IN THAT MOMENT. SO,
IN THIS CASE, IT IS THAT THERE WERE DISPOSITIVE MOTIONS, THERE WERE MOTIONS TO
SUPPRESS DEALING WITH OOITSZ THAT WERE FOUND IN THE VEHICLE AS WELL AS THE
STATEMENT. THERE WERE ACTUALLY LATER MOTIONS IN LIMINE WHICH
WERE NOT TOLLED. BUT.... JUDGE SABATINO: WHAT IF A CASE
HYPOTHETICALLY IS ON TRACK TO START AND COMPLETE TRIAL WITHIN THE 180 DAYS AND LATE
IN THE PROCESS A DEFENSE MOTION IS PROVOKED OR CAUSED BY SOME ACTION BY THE
PROSECUTOR? SAY THE PROSECUTOR IDENTIFIES A LATE WITNESS
OR A WITNESS WHO HAS BEEN UNABLE TO IDENTIFY THE DEFENDANT AND NOW IS ABLE TO SO
THEY DISCLOSE THAT APPROPRIATELY TO THE DEFENSE AND EVEN THOUGH THE TRIAL WAS
ALL SET TO GO NEXT WEEK, NOW WE HAVE A MOTION THAT IS GOING TO SET THINGS BACK,
WE NEED AN EVIDENTIARY HEARING, BUT IT'S NOT THE DEFENDANT'S FAULT THAT ALL OF
THIS HAS OCCURRED, IN THAT SITUATION SHOULD A DEFENSE MOTION THAT HAS BEEN
PROVOKED BY LATE PROSECUTORIAL ACTION COUNT TO TOLL THE LIMIT IN THAT KIND OF S
CENARIO. MICHAEL C. MELLON: IT'S A GREAT QUESTION, YOUR HONOR.
IN THAT SPECIFIC EXAMPLE THE GENERAL PRACTICE IS THAT WITNESSES
ARE TO BE PROVIDED 30 DAYS IN ADVANCE OF TRIAL. SO THE FIRST
THING I WOULD NOTE IS THAT THE COURT COULD EXCLUDE THAT WITNESS, I BELIEVE MENT.
PARTICULARLY WHEN WE'RE DEALING WITH SUCH A NARROW TIME TO
BRING DEFENDANTS TO TRIAL, CERTAINLY THE STATE SHOULD HAVE IT'S DUCKS IN A ROW,
ABSOLUTELY. JUDGE SABATINO: BUT THINGS HAPPEN. SO IN MY
HYPOTHETICAL IT HAPPENED AND IT WASN'T THE DEFENDANT'S FAULT SO THAT MOTION THAT
THEY ARE COMPELLED TO MAKE WOULD THAT BE A BASIS FOR AUTOMATIC TOLLING?
MICHAEL C. MELLON: IF THE DEFENDANT FEELS THAT THEY NEED TO MAKE
THAT MOTION, THEN THE TRIAL COULD NOT PROCEED IN THAT MOMENT.
IF THEY FEEL IT IS DISPOSITIVE, IF THEY FEEL IT IS NECESSARY, WHICH I WOULD ASSUME
THEY WOULD BECAUSE OTHERWISE WHY WOULD THEY DELAY THIS CLOCK, THEN, YES, THE
STATE SUBMITS THAT IN THAT INSTANCE, AGAIN, THE MATTER CANNOT PROCEED TO TRIAL
SO THAT TIME SHOULD ALSO BE EXCLUDED. JUSTICE PIERRE-LOUIS:
COUNSEL, YOU MAKE THE ARGUMENT THAT THE TRIAL COURT PROEP POSED A JUN 2018
TRIAL DATE TAN AND THAT DEFENSE COUNSEL REJECTED THAT TRIAL DATE.
WHERE IS THAT IN IN THE RECORD THAT DEFENSE COUNSEL REJECTED THAT TRIAL DATE AND
WAS THE STATE PREPARED TO GO TO TRIAL AT THAT POINT BECAUSE MOTIONS WERE
STILL PENDING THEN? MICHAEL C. MELLON: THANK YOU, YOUR HONOR.
IT'S A GREAT QUESTION AN IT IS CONCEDED THAT THE RECORD IS LESS
THAN CLEAR ON THAT POINT IN TERMS OF WHAT WAS SAID IN COURT AND WHAT WAS SAID IN
CHAMBERS, BUT I THINK WHAT WE CAN GLEAN FROM THE LETTER THAT WAS SUBMITTED
BY -- BY THE DEFENSE AS AN EXHIBIT, I HAVE A COPY HERE AN IT READS: THE COURT IS
PREPARED TO HAVE ANOTHER JUDGE TRY ONE OF THE CASES. JUSTICE
PATTERSON: GIVE US A LITTLE MORE PRECISION AS TO WHAT IS THAT LETTER DATE, THE
RECORD CITATION PLEASE. MICHAEL C. MELLON: I APOLOGIZE, YOUR
HONOR, THE DATE OF THE LETTER IS JUNE 12TH, 2018. AND I BELIEVE IT IS --
I BELIEVE IT IS DA-33 TO DA-34. PATH PALT I'M SORRY, CONTINUE. I JUST WAS ASKING
-- YOU CAN GO AHEAD AND READ IT IF YOU WOULD LIKE. MICHAEL C.
MELLON: WHAT THAT LETTER INDICATES OR READS, THE COURT IS PREPARED TO HAVE
ANOTHER JUDGE TRY ONE OF THE CASES TO PRESERVE EACH DEFENDANT'S RIGHT, THE TRIAL
UNDER THE IAD TIME FRAME OR THE SPEEDY TRIAL TIME FRAME. THAT CAN ONLY BE
ACCOMPLISHED IF MR. KROOUZ OR MR. AMANTIA IS ASSIGNED NEW COUNSEL. IN ORDER TO
REAVOID REASSIGNMENT OF EITHER CASE ONE TRIAL CAN BE MOVED UP NEXT WEEK, THAT WOULD
LIKELY HAVE TO BE THE CRUISE CASE GIVEN THE AIPTED LENGTH OF THE AMER TRIAL
OR IF THE AMER CASE PROSE FIRST A SPEEDY TRIAL EXCLUSION ORDER WOULD HAVE TO BE
ENTERED INTO IN THE CRUISE CASE DUE TO DEFENSE COUNSEL'S UNAVAILABILITY
FOR TRIAL. WHAT THAT LETTER MAKES CLEAR IS THAT THE COURT DID
PRESENT AN OPTION. ACTUALLY, TWO OPTIONS. ONE WAS TO HAVE ONE OF
THESE DEFENDANTS PROCEED UNDER A DIFFERENT JUDGE. NOW, THE PROBLEM WITH THAT
OPTION THAT THE STATE SEES IS THAT IF ONE OF THESE DEFENDANTS WAS TO PROCEED WITH
A DIFFERENT JUDGE, STILL PROCEEDING UNDER WHICHEVER CLOCK THEY WERE VIA KROOUZ
OR AMER, THAT WOULD REQUIRE THEM TO GET A NEW DEFENSE ATTORNEY ON THE EVE
OF TRIAL. IN MR. AMANTIA'S CASE, WE KNOW THAT HE FACED A WILL
LITANY OF CHARGES AND TO ASK HIM TO ASSUME NEW COUNSEL TO LEARN THIS CASE SO QUICKLY
AND TO PRESENT A COMPETENT DEVENLS IS QUITE AN ASK BECAUSE AS WE ARE ALL
AWARE DEFENSE ATTORNEYS DON'T JUST HAVE ONE CLIENT. THEY HAVE MULTIPLE CLIENTS.
THEY HAVE COURT DATES. THEY HAVE DAYS THAT THEY NEED TO DRAFT MOTIONS AND THE
LIKE. SO, IN LIGHT OF -- INSTEAD OF THAT, WHAT THE COURT
PRESENTED WAS, LET'S HAVE ONE OF THESE DEFENDANTS TRIED EARLIER AND THAT LETTER
DOES INDICATE THAT THE COURT WAS PREPARED TO PROCEED WITH EITHER AMER OR CRUISE
AND IT PRESENTED OPTIONS AS TO HOW BOTH COULD BE AFFECTED.
SO WHILE WE DON'T KNOW WHAT WAS SAID IN CHAMBERS WE DO KNOW THAT AT THE VERY LEAST
THIS LETTER INDICATES THAT IT WAS OPEN TO PROCEEDING WITH EITHER OF THESE
DEFENDANTS FIRST. WE, ALSO, KNOW THAT THERE IS AN ABSENCE OF ANY
STATED OBJECTION TO PROCEEDING WITH MR. KROOUZ OR AT LEAST THE STATE IS NOT AWARE
OF ONE AND THE STATE HASN'T PRESENTED ONE. THERE HAS BEEN NO INDICATION, NOTHING
POINTED TO IN THE RECORD WHERE COUNSEL FOR MR. AMANTIA CAME OUT AFTER THIS
CONFERENCE IN CHAMBERS AND SAID I WANT IT TO BE NOTED ON THE RECORD THAT IT WAS
MY PREFERENCE TO PROCEED FIRST WITH MR. AMANTIA AMER, BUT I WAS SHOESTRINGED
IN TO PROCEEDING WITH MR. KROOUZ. JUSTICE WAINER APTER: THE MR.
KROOUZ'S TRIAL ACTUALLY HAPPEN AT THAT TIME. MICHAEL C. MELLON:
THE RECORD IS A LITTLE IMPRECISE ON THAT CANDIDLY YOUR HONOR. IT INDICATES
WHICHEVER TRIAL DID GO THEY SHOULD BE READY TO PROCEED ON JUNE 18TH. I DID LOOK
AT PROMIS/GAVEL TO TRY TO DISCERN WHEN THE MATTER PROCEEDEDED AND PROM GAVEL AS
IT OFTENTIMES IS WAS A LITTLE I'M PRECISE ON THAT ISSUE BUT ULTIMATELY MR.
KROOUZ DID GO FIRST AND HE DID ACHIEVE AN ACQUITTAL ON JULY 19TH.
JUSTICE WAINER APTER: HE WAS ACQUITTED ON JULY 19TH? MICHAEL C.
MELLON: HE WAS, YOUR HONOR. JUSTICE WAINER APTER: AND THEN THIS
TRIAL, WAS NOT PROCEEDING UNTIL AFTER JULY 19TH WAS BECAUSE OF THAT.
MICHAEL C. MELLON: CORRECT. JUSTICE WAINER APTER: WITH THE
SAME ATTORNEY. MICHAEL C. MELLON: IT WAS THE SAME
ATTORNEY, THE SAME JUDGE SABATINO SAAB MY QUESTION IS, IS IT FAIR TO CRITICIZE DEFENSE
COUNSEL WHO HAD A CONFLICT OF INTEREST IN HAD BEING COUNSEL OF RECORD FOR BOTH
MR. AMANTIA AMER AN MR. KROOUZ AND CRITICIZED HIM WELL YOU DIDN'T OBJECT TO MR.
AMANTIA AMER BEHALF BECAUSE IF YOU DID HE WOULD THEN BE COMPROMISING HIS
ADVOCACY FOR MR. KROOUZ TO GET A QUICKER TRIAL. WHY SHOULD WE CRITICIZE
OR FAULT THE DEFENDANT FOR NOT -- DEFENSE COUNSEL FOR NOT RAISING AN OBJECTION
IN THAT SCENARIO? IS THIS. MICHAEL C. MELLON: IT IS CERTAINLY A
DIFFICULT POSITION. I SUSPECT THAT THE DEFENSE ATTORNEY FOUND HIMSELF IN.
JUST AS IT IS, AS YOUR HONOR INDICATES DIFFICULT TO CRITICIZE
HIM FOR THE POSITION THAT HE WAS PUT IN, IT IS ALSO, DIFFICULT, TO PUT THAT ON
THE STATE OR THE COURT IN TERMS OF MANAGING THIS WHEN YOU HAVE A DEFENSE
ATTORNEY WHO IS REPRESENTING TWO DEFENDANTS WHO BOTH ARE COMING UP AGAINST -- FOR
THE SAKE OF SIMPLICITY, SPEEDY TRIAL CLOCKS ONE WITH THE IAD ONE WITH THE
STATE'S SPEEDY TRIAL CLOCK. AGAIN, IT SEEMS THAT GIVEN THE FACT THAT
MR. APRIL PEL BEE WHO WAS THE DEFENSE ATTORNEY FOR THE TRIAL HAD THE WHERE
WITHAL TO PUT HIS IAD OBJECTION ON THE RECORD WHEN HE DID, IT WOULD SEEM THAT IF
HE HAD AN OBJECTION IN CHAMBERS TO PROCEEDING WITH MR. KROOUZ FIRST, HE
WOULD HAVE NOTED THAT, RECOGNIZING HE MAY RUN INTO SOME PROBLEMS IF HE DIDN'T.
JUSTICE WAINER APTER: BUT DOESN'T THE LETTER ACKNOWLEDGE
THAT ONE OF THE OPTIONS IS ALSO TO PUT A CONTINUANCE, I THINK IT SAYS ON THE RECORD.
SO WHY DID THE STATE NOT REQUEST A GOOD CAUSE CONTINUANCE ON
THE RECORD IN THIS CASE FOR MR. AMANTIA AMER. MICHAEL C. MELLON:
YOUR HONOR. JUSTICE WAINER APTER: THE LETTER YOU JUST READ
DOES SAY SOMETHING LIKE THAT, RIGHT? MICHAEL C. MELLON: THAT IT IS
REFERRING TO IS I BELIEVE AN EXCLUSION OF TIME FOR MR. KROOUZ UNDERSTAND
THE SPEEDY TRIAL ACT. IN TERMS OF THE STATE NOT REQUESTING A
CONTINUANCE, I WOULD DISAGREE WITH THE COURT IN RESPECT THAT WHEN MR. APPLE BEE
DID RAISE THE IAD OBJECTION, I BELIEVE IT WAS ON JULY 24TH AFTER JURY SELECTION
HAD BEGIN, IT MIGHT HAVE BEEN JULY 25TH, I AM NOT SURE OF THE SPECIFIC DATE,
BUT THE STATE IN FACT DID INDICATE THAT -- THE STATE USED THE LANGUAGE, EXCLUDABLE TIME
AND IT'S NOT REALLY SURPRISING GIVENL THAT BAIL REFORM WAS SORT OF THIS
NEW THING THAT WE WERE ALL GETTING IMMERSED IN, BUT THE STATE INDICATED THAT THE
TIME DURING THE TWO MOTIONS TO SUPPRESS FROM THE NOTICE OF MOTION BY COUNSEL
TO THE TIME IN WHICH HIS HONOR JUDGE SMITH ISSUED HIS OPINION SHOULD IN FACT BE
EXCLUDED AND THAT WAS DONE IN OPEN COURT SO I WOULDN'T AGREE THAT THE STATE DID
NOT MOVE FOR A CONTINUANCE. JUSTICE WAINER APTER: AND THE
TRIAL JUDGE DIDN'T MAKE ANY SPECIFIC FINDING IN OPEN COURT, THE TRIAL JUDGE
IN OPEN COURT ONLY AGREED THAT TRIAL HAD ALREADY COMMENCED WITH THE START OF JURY
SELECTION ON THE 24TH. MICHAEL C. MELLON: WHAT THE TRIAL JUDGE
INDICATED WAS THAT HE WOULD LOOK AT THE EXCLUSION ISSUE AN HE NOTED THAT
THERE IS THIS REQUIRED TIME TO CONSIDER THOSE MOTIONS FOR BOTH PARTIES TO MAKE
THEIR ARGUMENTS AND FOR THE COURT TO DRAFT ITS OPINION AND HE SAID HE WOULD
CONSIDER THE ISSUE AND WHAT HE DID WAS HE THE NEXT DAY DRAFTED A WRITTEN OPINION
THAT WAS WELL THOUGHT OUT AN ADDRESSED THOSE ISSUES SO, AGAIN, THE STATE'S
POSITION IS THAT THE SPIRIT OF THE OPEN COURT REQUIREMENT WAS CERTAINLY -- IN FACT,
IT WAS HONORED HERE. I MEAN THE APPLICATION WAS MADE IN OPEN COURT.
BOTH PARTIES WERE HEARD ON THE ISSUE. IT DOESN'T SEEM REASONABLE TO HOLD IT AGAINST
THE COURT THE FACT THAT THEY TOOK TIME TO DRAFT A WELL-REASONED AND THOUGHT OUT
OPINION ON WHETHER OR NOT THAT EXCLUSION SHOULD APPLY. JUSTICE
WAINER APTER: BUT THE OPINION WASN'T ABOUT WHETHER THERE SHOULD BE A GOOD CAUSE
CONTINUANCE, IT WAS, INSTEAD, SAYING THAT DEFENDANT WAS UNABLE TO STAND
TRIAL UNDER THE IAD RIGHT? ARE YOU SAYING THAT THE OPINION SHOULD BE
HELD HELD TO ALSO STAND FOR THE FACT THAT IT WOULD IN THE ALTERNATIVE BE
A GOOD CAUSE CONTINUANCE? MICHAEL C. MELLON: THAT'S A GREAT CATCH,
YOUR HONOR. THANK YOU. THERE WAS THIS SEEMING
CONFLATING OF THE TWO IN THE OPINION. IN THE LAST PARAGRAPH, JUDGE SMITH
INDICATES THAT MR. AMANTIA AMER WAS UNABLE TO STAND TRIAL AND THAT BECAUSE HE WAS
UNABLE DUE TO THE FILING OF HIS OWN MOTIONS THAT THERE IS GOOD CAUSE TO TOLL
THIS. THE STATE WOULD REFER THE COURT TO STATE V. ODOM AND
IN STATE V. ODOM, WHAT IS INDICATED IS THAT WHEN THERE IS THIS FINDING OF UNABLE
TO STAND TRIAL BUT IT'S IN THE CONTEXT OF LOOKING TO THE S T A, SO WE'RE DEALING
WITH AN IAD CASE AN A JUDGE FINDS THAT LOOKING AT THE S T A, IT LOOKS LIKE THIS
GIVEN DEFENDANT IS UNABLE TO STAND TRIAL FOR REASON X IN THIS INSTANCE THE DIS
POSITIVE MOTIONS, BUT THE DEFENDANT OBJECTS, THEN A COURT SHOULD STILL FIND WHETHER
THERE IS ALSO GOOD CAUSE TO EXCLUDE THAT TIME AND THAT IS SET OUT IN ODOM SO
THAT'S THE STATE'S POSITION OF WHAT THE JUDGE DID HERE. HE INDICATED
THAT THE DEFENDANT IS UNABLE TO STAND TRIAL BECAUSE OF THESE MOTIONS, WHICH THE
STATE AGREES WITH. HOWEVER, THERE WAS THAT OBJECTION BY MR. APPLE BEE AN
BECAUSE OF THAT THE COURT ALSO ENDEAVORED TO FIND OUT WHETHER THE TIME WOULD BE
EXCLUDED UNDER THE GOOD CAUSE PROVISION, AS WELL. JUDGE
SABATINO: VERY QUICKLY. THE STATE WOULD PREFER TO HAVE A BRIGHT LINE
RULE THAT ALL MOEKS BY THE DEFENSE TOLL THE CLOCK RATHER THAN BOTH SIDES
GUESSING ABOUT WHETHER THE JUDGE WILL MAKE A GOOD CAUSE DETERMINATION; THAT'S YOUR
PRINCIPLE ARGUMENT, RIGHT? MICHAEL C. MELLON: IT IS, YOUR HONOR.
IT IS ABSOLUTELY IS. I THINK THE LATTER WOULD CERTAINLY BE SUBJECTIVE AND
COULD CREATE A LITANY OF ISSUES WHICH I THINK THIS COURT HAS ALREADY ALLUDED TO.
A BRIGHT LINE RULE I THINK SHOULD IN GENERAL BE PREFERRED BUT CERTAINLY
IN THIS INSTANCE, YES, YOUR HONOR. THANK YOU. JUSTICE
PATTERSON: AN WHAT CATEGORIES OF MOTIONS WOULD TRIGGER A BRIGHT LINE RULE?
MICHAEL C. MELLON: WHAT TYPE OF MOEKSZ OR BY WHAT PARTY?
JUSTICE PATTERSON: WELL, BOTH, ACTUALLY, IF RELEVANT. MICHAEL C.
MELLON: SO THE SPEEDY TRIAL ACT, BOTH THE FEDERAL AND STATE EXCLUDE MOTION PRACTICE
AS A GENERAL PROVISION. AND THE STATE AGREES WITH THAT. BUT,
CERTAINLY, AT A MINIMUM AS INDICATED IN THE PETERSON DECISION CITED IN OUR BRIEF,
MOTIONS ATTRIBUTABLE AN INDEED CONDUCT ATTRIBUTABLE TO THE DEFENSE THAT
CAUSES AN A DELAY IN THE PROCEEDINGS SHOULD BE EXCLUDED. JUSTICE
WAINER APTER: YOU ARE SAYING THE STATE FILES A MOTION, THAT MEANS THE DEFENDANT
IS UNABLE TO STAND TRIAL UNDER THE LANGUAGE OF THE IAD OR ARE YOU
REFERRING TO A GOOD CAUSE CONTINUANCE? MICHAEL C. MELLON: SO, AGAIN,
I -- AT A MINIMUM THE STATE'S POSITION IS THAT THE MOTION IS ATTRIBUTABLE
TO THE DEFENSE TO RENDER HIM UNABLE TO STAND TRIAL. BUT, IT IS, ALSO, INSTRUCTIVE
TO LOOK TO THE SPEEDY TRIAL ACT AS WELL AS THE STATE'S OWN SPEEDY TRIAL
ACT WHICH DO AUTOMATICALLY TOLL MOTIONS THAT ARE FILED BE IT BY THE STATE OR THE
DEFENSE. THE REASON FOR THAT IS SOUND BECAUSE ASSUMING THAT
THOSE MOTIONS ARE DISPOSITIVE, THE MATTER CANNOT PROCEED BE IT BY THE STATE OR
THE DEFENSE AND I THINK THAT MAY BETTER ANSWER YOUR HONOR'S QUESTION, AS WELL.
CERTAINLY, DISPOSITIVE MOERNGSZ, REGARDLESS OF WHAT PARTY
THEY ARE FILED BY, DO, THE STATE WOULD ARGUE, RENDER A DEFENDANT UNABLE TO STAND
TRIAL AT THAT MOMENT. JUDGE SABATINO: I REVISE MY EARLIER
HYPOTHETICAL. THE DEFENSE HAS A LAST MINUTE WITNESS OR SOME SURPRISING
DEVELOPMENT WHICH PROVOKES THE PROSECUTOR TO MOVE IN LIMINE TO BLOCK IT, ALIBI
WITNESS OR CHARACTER WITNESS, WHATEVER, IT MIGHT BE. ARE YOU
SAYING IN THAT SITUATION THE PERCENT SAY RULES SHOULD ALSO EXTEND TO TOLL THINGS
BECAUSE, YOU KNOW, IT IS THE DEFENSE'S FAULT THAT THEY NOTIFIED THE STATE
THAT THEY WANTED TO DO THIS AT TRIAL AND YOU HAD TO FILE THAT MOTION IN REACTION
TO IT. MICHAEL C. MELLON: ABSOLUTELY. ABSOLUTELY.
I THINK THAT IF IT WERE NOT THAT CASE, THEN IT'S FORESEEABLE THAT DEFENDANTS AN
DEFENSE ATTORNEYS COULD DO THAT ALL THE TIME. THEY COULD AT THE LAST MINUTE
TRY AN BRING IN A NEW WITNESS OR FILE SOME RANDOM THE MOTION OR WHAT HAVE YOU THAT
WOULD OTHERWISE PUSH US PAST THAT 180 DAY DEADLINE AND THEORETICALLY COULD
RESULT IN A DISMISSAL. IT DOESN'T SEEM THAT THAT WOULD BE IN THE INTEREST OF JUSTICE.
JUDGE SABATINO: SOME MOTIONS BY THE PROSECUTOR MIGHT TOLL
IN ADDITION TO ALL MOTIONS BY DEFENDANT, YES? MICHAEL C. MELLON:
ABSOLUTELY. ABSOLUTELY. YES, YOUR HONOR. CHIEF JUSTICE RABNER:
CAN YOU ADDRESS THE DELAY BETWEEN JURY SELECTION AND OPENING STATEMENTS AND
PRESENTATION OF EVIDENCE. IT WAS A SIX-WEEK OR SO PERIOD OF TIME.
SHOULD COURTS SANCTION THAT LENGTHY DELAY IN A PROCEEDING? MICHAEL
C. MELLON: I THINK, YOUR HONOR, IT DEPENDS ON THE FACTS AN CIRCUMSTANCES OF THE
CASE. WHAT IS THE REASON FOR THE DELAY. AS A GENERAL PROPOSITION
THE STATE MAINTAINS THAT TRIAL BEGINS WHEN JURY SELECTION BEGINS WITH VOIR DIRE,
BUT AS DISTRICT COURTS HAVE INDICATED AND AS THEY HAVE HAD SOMEWHAT OF A
DISDAIN FOR BE THE -- THE START AN STOP PROCEDURE CAN BE PROBLEMATIC IF IT IS USED
BY A COURT SIMPLY TO PAY LIP SERVICE AS ONE OF THE COURTS SAYS, TO, IN THAT
INSTANCE I BELIEVE IT WAS REFERRING TO THE S T A, BUT TO THE IAD AND THEN USE THAT
AS A RUN AROUND TO, WE'VE PICKED THE JURY NOW WE CAN PUT THIS THING ON ICE FOR
A FEW MONTHS. THAT WOULDN'T BE APPROPRIATE, EVEN SIX WEEKS DEPENDING ON THE REASON.
I THINK THE APPROPRIATE THING TO DO RATHER THAN ASSIGN A HARD
AND FAST RULE THAT, YOU KNOW, IF THERE HAS BEEN EIGHT WEEKS OR SIX WEEKS AS THE
COURT INDICATED BETWEEN JURY SELECTION AN OPENING STATEMENTS OR THE SWEARING
OF THE JURY, THEN WE'RE AUTOMATICALLY GOING TO DISMISS BECAUSE I DO BELIEVE THAT
THERE ARE FACTS AN CIRCUMSTANCES WHICH COULD CALL FOR A GREATER DELAY THAN
SIX OR EIGHT WEEKS AND SO, AGAIN, I BELIEVE THE FACTS AND CIRCUMSTANCES APPROACH
THAT QUESTION AS APPROPRIATE. THE COURT: IT'S A RATHER UNCOMMON
PERIOD OF TIME FOR A DELAY IN YOUR EXPERIENCE, WOULD YOU AGREE.
MICHAEL C. MELLON: I WOULD, YOUR HONOR. CHIEF JUSTICE RABNER:
WHAT IS THE JUSTIFICATION HERE? MICHAEL C. MELLON: THE
JUSTIFICATION HERE IS THAT -- WELL, FIRST AN FOREMOST, THE STATE MAINTAINS THAT
THERE WAS EXCLUDABLE TIME DUE TO MOTION PRACTICE WHICH PUSHES THAT 180 DAY WINDOW
OUT AN SO, IN FACT -- THE COURT: SET THAT ASIDE.
MICHAEL C. MELLON: SURE. THE COURT: YOU WERE TALKING ABOUT
JUSTIFICATION FOR A LENGTHY DELAY. DON'T LOOK AT THE CLOCK FOR THAT ANSWER. I DON'T
THINK THAT HELPS. MICHAEL C. MELLON: WITH REGARD TO THIS SPECIFIC
CASE OR AS A GENERAL PROPOSITION? CHIEF JUSTICE RABNER: THIS CASE.
MICHAEL C. MELLON: BECAUSE THE DEFENSE OR AT LEAST THE STATE'S
POSITION WAS THAT THE DEFENSE EE LEBTD TO PROCEED WITH ANOTHER DEFENDANT FIRST,
ULTIMATELY THIS CASE WAS PUSHED TOWARDS THE BACK OF -- AND THE MOTION PRACTICE
AS WELL, BUT THIS CASE WAS ULTIMATELY PUSHED TO THE BACK OF THE 180 DAY CLOCK AND
I THINK AS A PRACTICAL MATTER SOMETHING THAT REALLY ISN'T BEING CONSIDERED
HERE -- ASIDE FROM THE FACT THAT THE COURT DID PRESENT THE OPTION TO PROCEED WITH
ANOTHER JUDGE, JUDGE SMITH HAD CRIMINAL JUSTICE REFORM DUTY DURING THE MONTH
OF AUGUST, WHICH, IF I MAY, FROM MY PRACTICAL EXPERIENCE, I CAN SAY THAT WHAT
THAT REQUIRED HIM TO DO WAS TO HEAR FIRST APPEARANCES, DETENTION HEARINGS.
BASICALLY, IT TIED UP EVERY AVAILABLE DAY, SAVE, I DON'T KNOW, HE MIGHT HAVE RESERVED
ONE LIST DAY, BUT, IN GENERAL HE WOULD HAVE BEEN FULLY BOOKED FOR THAT FULL
MONTH OF AUGUST. YOU'RE DEALING WITH A SITUATION WHERE YOU HAVE A COUNTY COURTHOUSE
THAT ALREADY HAS ONE JUDGE SPECIFICALLY REMOVED FOR THAT PURPOSE.
AND THEN TO SAY THAT WELL, ANOTHER JUDGE SHOULD HAVE JUST PICKED UP THAT CASE, IN
THEORY THAT IS EASY TO SAY, BUT IN PRACTICE, IT IS QUITE DIFFERENT,
PARTICULARLY WHEN YOU'RE ALREADY DEALING WITH BEING ONE JUDGE DOWN.
AS THIS COURT IS AWARE, WE HAVE A SHORTFALL OR A SHORTAGE OF JUDGES THROUGHOUT
THE STATE GENERALLY SO, YES, IN THEORY IT IS EASY TO SAY WHY DIDN'T ANOTHER
JUDGE JUST PICK THIS UP IN AUGUST, BUT THE PRACTICAL REALITY IS THAT THERE MAY
VERY WELL NOT HAVE BEEN A JUDGE TO PICK IT UP AND EVEN IF THERE HAD BEEN, IT WOULD
BE DIFFICULT TO PLACE THAT BURDEN ON ANOTHER JUDGE ON SUCH SHORT NOTICE.
JUSTICE WAINER APTER: THEN WHY. JUSTICE
PIERRE-LOUIS: THEN WHY PICK A JURY IN JULY AT ALL? YOU CAN
SEE LOOKING AT THE FACTS OF THIS CASE, IT APPEARS AS THOUGH THAT JURY WAS PICKED
FOR THE PURPOSE OF TRYING TO BRING THE START OF TRIAL WITHIN THAT 180 DAYS
AND ON THE RECORD, ON JULY 25TH, WHEN DEFENSE COUNSEL MAKES THE OBJECTION WITH
REGARD TO THE IAD THE FIRST THING THE PROSECUTOR SAYS IS WE'RE COMMENCING
TRIAL, WE'RE PICKING A JURY, GO. THAT WAS THE FIRST REASON THE PROSECUTOR
GAVE FOR THE IAD NOT BEING AN ISSUE THAT WE'RE PICKING A TRIAL NOTWITHSTANDING
THE FACT THAT TRIAL WAS GOING TO BEGIN MUCH LATER SO YOU CAN SEE HOW THERE IS A
CONCERN HERE BECAUSE THERE WAS -- THE DATE WAS PICKED TO PICK A JURY THAT,
YOU KNOW, WAS NOWHERE NEAR THE START OF THE TRIAL. MICHAEL C.
MELLON: AND IT'S AN EXCELLENT POINT, YOUR HONOR. I THINK IN
ADDRESSING THAT IT IS APPROPRIATE TO LOOK TO WHAT IS THE PURPOSE OF THE IAD. IT IS,
AS INDICATED IN I DON'T RECOLLECT MAN, WHICH IS A NEW HAMILTON SUPREME COURT
CASE TO CONSIDER THIS HAD ISSUE, IT IS TO COMMENCE TRIAL EXPEDITIOUSLY. SO, I
AGREE IT IS -- IT DOES SEEM CONVENIENT WHAT THE COURT DID HERE, BUT THE
REALITY IS THE IAD DIRECTS THAT TRIAL SHALL COMMENCE. IT DOES NOT DIRECT THAT
THE TRIAL SHALL CONCLUDE WITHIN 180 DAYS CLOP UP TOP Y O R K M A N CLOP AND
WHILE STOP AND START PROCEDURES MAY BE DISFAVORED, COURTS HAVE INDICATED THAT
WHEN THERE IS A VALID REASON TO CONDUCT THAT PRACTICE, IT DOESN'T NECESSARILY RENDER
IT INAPPROPRIATE. SOME EXAMPLES FROM THE FEDERAL CASES, I
BELIEVE IT'S U.S. V GONE EXACTLY LEZ, IN THAT INSTANCE THEY CONDUCTED VOIR
DIRE I BELIEVE IT WAS ON THE LAST DAY OF THE SPEEDY TRIAL ACT TIME FRAME AND THE
COURT GAVE THE PARTIES THE OPTION TO COME IN THE FOLLOWING MONDAY, PRESENT
OPENINGS, PROCEED WITH WHAT WITNESSES THEY COULD AND THEN THEY WOULD HAVE TO ADJOURN
FOR 11 DAYS AN THE PARTIES ELECTED, INSTEAD, IN THE INTEREST OF CONTINU
ITY TO ASCOMBRURN FOR 11 DAYS AND THAT WAS FOUND TO NOT VIOLATE LATE CLOP ADJOURN
CLOP. AND IN U.S. -- GOVERNMENT OF US VIRGIN ILDZ AND OTHER
CASES CITED BY THE STATE THE ATTORNEY GENERAL'S OFFICE, THERE WAS A SIGNIFICANT
DELAY AND THAT WAS BECAUSE THE JUDGE WAS FLYING DOWN TO THE VIRGIN ISLANDS
ON HIS CIRCUIT ROTATION TO PRESIDE OVER THIS MATTER AN HE WAS GOING TO HAVE TO
FLY BACK OUT OF THERE TO GET UP TO THE CONTINENTAL UNITED STATES AND DEAL WITH
THE MATTERS THAT HE HAD. HE INDICATED THAT HE WOULD BE WILLING TO PROCEED
IF THE PARTIES WOULD WAIVE DOUBLE JEOPARDY AND THEY WERE NOT WILLING TO DO THAT
AND SO THAT DELAY WAS ALSO FOUND NOT TO BE APPROPRIATE. THE COURT:
HOW LONG WAS THAT DELAY. MICHAEL C. MELLON: I BELIEVE IT WAS
APPROACHING TWO MONTHS YOUR HONOR. I WOULD HAVE TO LOOK AT THE SPECIFIC LANGUAGE,
BUT I BELIEVE IT WAS. IT WAS A SIGNIFICANT DELAY.
JUSTICE WAINER APTER: AND DID YOU INDICATE EARLIER THAT BETWEEN JUNE AND JULY OR
UNTIL JULY 18TH, I THINK YOU SAID IS WHEN THE OTHER TRIAL THAT DEFENSE COUNSEL
WAS PARTICIPATING IN WAS BEING CONDUCTED? IN. MICHAEL C. MELLON:
THE COURT INDICATED IN ITS LETTER THAT IT INTENDED TO START THE OTHER TRIAL ON
JUNE 18TH. PROMIS/GAVEL IS NOT EXACTLY CLEAR ON WHETHER IT BEGAN ON THAT
DATE, BUT THE COURT INDICATED ITS INTENTION TO BEGIN ON JUNE 18TH AND THEN,
ULTIMATELY, THE ACQUITTAL WAS ACHIEVED ON JULY 19TH. THE COURT:
THE CASE YOU WERE JUST ARGUING TO US, WAS THE JURY SELECTED AN THEN PUT ON HOLD
FOR TWO MONTHS? MICHAEL C. MELLON: I BELIEVE IT WAS
YOUR HONOR, IF I MAY JUST CHECK MY NOTES. THIS IS LANGUAGE SPECIFICALLY
FROM THE CASE WHICH I THINK IS INFORMATIVE, THE SPEEDY TRIAL ACT DOES
NOT REQUIRE THAT A TRIAL CONTINUE WITHOUT INTERRUPTION. IT IS THEREFORE
RECOGNIZED THAT THE ACT IS NOT VIOLATE LIETD IF THE JURY IS SEATED WITHIN A 70-DAY
PERIOD BUT A SHORT RECESS PLACES THE SWEARING OUTSIDE OF THE STATUTORY
PERIOD. SO IT SEEMS THAT THE COURT CONTEMPLATED THAT ISSUE AND
FOUND THAT IT WAS APPROPRIATE TO CONDUCT VOIR DIRE AND THEN IF THE REASON FOR DELAY
WAS FOUNDED THEN TO WAIT ON THE SWEARING. THE COURT: OTHER
QUESTIONS ANYONE? ANYTHING YOU WOULD LIKE TO ADD.
MICHAEL C. MELLON: UNITED STATES, I WOULD JUST NOTE IN CONCLUSION THAT THE DEFENDANT
WAS UNABLE TO STAND TRIAL DURING THE PENDENCY OF HIS MOTIONS, SUCH A HOLD
ING IS NOT ONLY IN ACCORDANCE WITH THE MAJORITY OF COURTS TO CONSIDER THIS ISSUE
BUT IS ALSO BOTH A LITERAL AN COMMON SENSE UNDERSTANDING OF THE TERM UNABLE TO
STAND TRIAL. AS THE LEGISLATURE INTENDED THE STATUTE
SHOULD ONLY APPLY TO PHYSICAL AN MENTAL CAPACITY THEY WOULD HAVE SAID TO, APPLYING
THE GOOD CAUSE TO EXTENT THE CLOCK WAS ALSO APPROPRIATE HERE, THE APPROPRIATE
COUNSEL MADE THEIR ARGUMENTS ON THE RECORD WITH JUDGE SMITH AN HE STATED
ON THE RECORD THE TOTALITY OF CIRCUMSTANCES THAT WOULD MAKE SUCH AN
EXTENSION APPROPRIATE. THE FACT THAT HE DRAFTED A WRITTEN OPINION
IS OF NO MOMENT IN THIS CONSIDERATION OF THE WHAT THE ACT ACTUALLY SEEKS
TO PROTECT. WHEN LOOKING AT THIS CASE IN HIETS EASE ENTIRETY,
IT BECOMES CLEAR THAT IT IS THE DEFENDANT'S CONDUCT THAT CAUSED THIS TRIAL TO BE
PUSHED OUT TO SEPTEMBER. ACCORDINGLY HIS ACTIONS WHICH ARE
GIN SKINTS WITH THE PURPOSE OF THE IAD SHOULD BE DEEMED A WAIVER OF THE
RIGHT TO CHALLENGE WHETHER THE TRIAL WAS PROPERLY COMMENCED BY AUGUST 22 EE 2018
AN FINALLY EVEN IF THIS COURT FINDS THAT THE MATTER WAS NOT PROPERLY TOLD, JURY
SELECTION WAS COMPLETED BY THE END OF JULY AND WITHIN TIME. AS SUCH THE
TRIAL WAS XHOENSED WITHIN 180 DAYS AS REQUIRED BY THE IAD.
THANK YOU. CLOP UP TOP COMMENCED. CHIEF JUSTICE RABNER: MS. KMIECIAK
MEDICAL EXAMINER MEDICAL EXAMINER MEDICAL EXAMINER XHOOE XHOOE MAINE MAINE
MEDICAL EXAMINER MEDICAL EXAMINER MOOEK MOOEK MOOEK MOOEK GOOD AFTERNOON YOUR HONORS
AN MAY IT PLEASE THE COURT. THE QUESTION BEFORE THIS COURT
IS WHETHER AN OTHERWISE VALID INDICTMENT WILL BE DISMISSED WITH PREJUDICE,
A MOTION, MOST, THE MOST EXTREME SANCTION AVAILABLE IN A CRIMINAL CASE BASED ON
THEORIES OF THE IAD THAT HAVE BEEN REJECTED BY ALMOSTER COURT TO ARE
THEM. THERE ARE TWO INDEPENDENT BASES THAT BEAT
DEFENDANT'S ATTEMPT TO INVOKE THIS EXTREME SANCTION IN THIS CASE EITHER OF WHICH
ARE SUFFICIENT TO SPORT THE APPELLATE DIVISION. FIST THE IAD
CLAIM WAS PROPERLY EX STENLDED FOR THE TIME TO RESOLVE THE DEFENDANT'S TWO TRIAL
SUPPRESSION MOTIONS AND SECOND THE DEFENDANT WAS BROUGHT TO TRIAL AS
REQUIRED THE IAD WHEN JURY SELECTION BEGAN BEFORE THE 180 DEADLINE ON JULY 24TH.
I WOULD LIKE TO START WITH THE FIRST POINT GIVEN THE ARGUMENT
L THIS MORNING AN THE CHIEF JUSTICE'S REQUEST THAT WE FOCUS ON THE MOTIONS AND
I HAVE THREE MOINS I WOULD LIKE TO MAKE. THE FIRST IS TO RESPOND
TO DEFENSE COUNSEL'S HISTORICAL ARGUMENT ABOUT WHAT UNABDOMINAL TO STAND TRIAL
SHOULD MEAN. CLOP THREE POINTS CLOP. I HAVE FOUR SUBPOINTS TO THAT.
THE FIRST POINT IS THAT DEFENDANTS HISTORICAL ARGUMENT REALLY
DOESN'T MAKE SENSE WHEN WE LOOK AT THE STATUTORY INSTRUCT TUR OF THE IAD AND I
WOULD POINT THE COURT TO UNITED STATES VERSUS KOL LINS, IT'S A 9TH CIRCUIT
DECISION THAT'S CITED IN THE ATTORNEY GENERAL'S AMICUS BRIEF AND IT REALLY SPELLS
THIS OUT QUITE NICELY. SO DEFENDANT'S INTERPRETATION OF UNABLE
TO STAND TRIAL IS VERY NARROW. IT IS A PHYSICAL OR MENTAL INCAPACITY TO
STAND TRIAL. AS KOL LINS POINTS OUT, THE IAD ALREADY TAKES
CARE OF THE MENTAL INCAPACITY IN ARTICLE 6 B WHICH SAYS NO PROVISION OF THIS
AGREEMENT AND NO RECOMMEND MED TEE MADE AVAILABLE BY THIS AGREEMENT SHALL APPLY
TO ANY PERSON WHO IS A JUDGE TO BE MENTALLY ILL. SO, IN
ESSENCE, UNDER THE DEFENDANT'S READING THE ONLY THING THAT IS LEFT FOR THE UNABLE
TO STAND TRIAL AUTOMATIC TOLLING PROVISION WOULD BE PHYSICAL INCAPACITY
AND IF THAT'S WHAT THE DIRECTORS OF THE IAD REALLY MEANT, THEY WOULD HAVE SAID
SO AND THEY DID NOT. THE SECOND POINT IN RESPONSE TO THE
HISTORICAL ARGUMENT IS THAT DEFENSE COUNSEL ARGUED IN HAD THEIR BRIEF AND TODAY
THAT THE STATE AND THE ATTORNEY GENERAL ARE SOMEHOW ATTEMPTING TO REWRITE WHEN
UNWHAT UNABLE TO STAND TRIAL MEANS OR TO ADD EX SENGSZ. I THINK
IT IS THE OPPOSITE, DEFENDANT IS SEEKING TO REWRITE OR TO ADD QUALIFIERS TO WHAT
UNABLE TO STAND TRIAL ACTUALLY MEANS. WE ARE JUST ASKING THIS
COURT TO INTERPRET WHAT UNABLE TO STAND TRIAL MEANS AND THERE IS NO SHALL TA
DASH THE QUALIFIERS THAT DEFENDANT IS UNABLE TO STAND TRIAL PHYSICALLY OR MENTALLY
UNABLE SIMPLY DO NOT APPEAR IN THE PLAIN LANGUAGE. THE THIRD
POINT I WOULD LIKE TO MAKE IN RESPONSE TO THE HISTORICAL ARGUMENT IS THERE IS NO
EVIDENCE THAT THE DRAFT ERS OF THE IAD OR NEW JERSEY WHEN NEW JERSEY ADOPTED
THE IAD OR CONGRESS WHEN IT ENACTED THE I A DA JOINING THE UNITED STATES OR DISTRICT
OF COLORADO WERE RELYING ON THESE CASES THAT DEFENDANT CITES THAT NOW THE
DEFENDANT SAYS STAND FOR THE PROPOSITION THAT THIS IS WHAT UNABLE TO STAND TRIAL
MEANS. THERE IS NO EVIDENCE THAT THESE CASES WERE
CONSIDERED AND I THINK IT IS ALSO IMPORTANT TO CONSIDER WHAT THESE CASES ACTUALLY
SAY AND MORE IMPORTANTLY WHAT THEY DON'T SAY. THE CASES THAT
DEFENDANT CITES ARE EXAMPLES OF WHEN A DEFENDANT MAY BE UNABLE TO STAND TRIAL DUE
TO A PHYSICAL OR MENTAL INCAPACITY. JUSTICE PATTERSON: JUST
TO GIVE US CONTEXT ON THIS ARGUMENT, WHAT CASES ARE YOU SAYING THEY ARE RELYING
ON IN THAT REGARD, MEDICAL EXAMINER MEDICAL EXAMINER ALL OF THE CASES THAT THEY
KROOIT IN THEIR BRIEF -- THE COURT: JUSTICE
PATTERSON: EVEN IF YOU DON'T KROOIT ALL OF THEM GIVE US AN IDEA OF WHAT GROUP OF
CASES BECAUSE THERE ARE A NUMBER OF GROUP OF CASES THE PARTIES ARE RELYING
ON MEDICAL EXAMINER MEDICAL EXAMINER I DO MENTION SOME OF THEM IN MY BRIEF. AT
PAGES -- PAGE 33 OF THE ATTORNEY GENERAL'S BRIEF DOES DISCUSS SOME OF THEM,
EAST LAND VERSUS STATE, STATE V. FOR SOOIT. THESE ARE CITED AT DEFENDANT'S BRIEF
PAGE 25, FOOTNOTE 11. JUSTICE WAINER APTER: I'M SORRY, WERE THOSE
CASES, THEY ARE INTERPRETING THE WORDS UNABLE TO STAND TRIAL IN A STATUTE
OR THEY ARE JUST HOLDING UNDER THE COMMON LAW OR SOMETHING ELSE THAT THE DEFENDANT
HAPPENED TO BE UNABLE TO STAND TRIAL IN THAT CASE. MEDICAL EXAMINER MEDICAL
EXAMINER I THINK IT'S REALLY THE LATTER THE DEFENDANT ATTORNEY GENERAL LOOKED AT
ALL THESE CASES AFTER THE DEFENDANT FILED THEIR BRIEF AND MOST OF THEM ARE
GIVING EXAMPLES OF WHY THE DEFENDANT WAS UNABLE TO STAND TRIAL. THEY ARE NOT REALLY
STATUTORY TORE REFROM MY RECOLLECTION. THEY ARE JUST SAYING WELL THE
DEFENDANT IN THIS CASE WAS UNABLE TO STAND TRIAL BECAUSE HE WAS FOUND TO BE
INCOMPETENT. THE DEFENDANT IN THIS CASE HAD A PHYSICAL CONDITION AND WAS UNABLE
TO STAND TRIAL. JUSTICE WAINER APTER: NOT INTERPRETING A
STATUTE THAT INCLUDES THE WORDS UNABLE TO STAND TRIAL, MEDICAL EXAMINER
MEDICAL EXAMINER NOT FROM WHAT I SAW WHEN I PULLED THE CASES THAT DEFENDANT WAS
KROOITING AND MORE IMPORTANTLY, OBVIOUSLY THEY ARE NOT INTERPRETING AN IAD,
RIGHT, BECAUSE THEY PREEXIST. AND SO -- BUT EVERYONE AGREES, THE ATTORNEY
GENERAL AGREES THAT PHYSICAL OR MENTAL INCAPACITY DOES RENDER A DEFENDANT
UNABLE TO STAND TRIAL SO CASES DON'T REALLY PROVE ANYTHING BECAUSE EVERYONE AGREES
WITH THAT. AND NONE OF THE CASES SAY THAT PHYSICAL OR MENTAL
INCAPACITY IS THE ONLY WAY A DEFENDANT IS UNABLE TO STAND TRIAL, THEY ARE JUST
I WILL LUS STRAT ACTIVE I WILL LUS STRAT ACTIVE EXAMPLES AS I JUST MENTIONED.
SOME OF THE CASES ACTUALLY ADD QUALIFIERS LIKE PHYSICALLY UNABLE
TO STAND TRIAL OR MENTALLY UNABLE TO STAND TRIAL SO IF THAT COULD BE THE ONLY MEANING,
IT DOESN'T MAKE MUCH SENSE THAT THEY HAD TO ADD THOSE QUALIFIERS.
AND THEN THE FOURTH POINT I WANTED TO MAKE IN RESPONSE TO THE HISTORICAL ARGUMENT
IS ABOUT THE PRACTICAL I'M MRIK KASZ OF DEFENDANT'S REALLY NARROW PROPOSED
RULING. THE CHIEF JUSTICE ASKED ABOUT THE RIGHT TO COUNSEL,
WHETHER THAT WOULD BE COVERED, BUT THERE IS OTHER EXAMPLES OF THINGS THAT ARE NOT
MENTAL OR PHYSICAL INCAPACITY TO STAND TRIAL THAT WOULD NOT BE COVERED BY
DEFENDANT'S ROLE. THESE ARE NOT JUST HYPOTHETICAL EXAMPLES. THESE
ARE REAL CASESES THAT THE ATTORNEY GENERAL CITED IN ITS PREEF FROM NEW JERSEY AN
ELSEWHERE. ONE TAM MR. WOULD NOT BE COVERED BY A DEFENDANT
EASE ROLE IS THE DEFENDANT BEING ACTIVELY PROSECUTED IN ANOTHER JURISDICTION AND
NOT TURNING THE PRISONER OVER TO OUR KUS STOD THE DEE. THE
BINN CASE THAT WE DISCUSSED IN HAD OUR BRIEF I THINK IS SIGNIFICANT AN ILLUSTRATES
THE PROBLEM. THERE THE 180 DAY CLOCK ACTUALLY EXPIRED BEFORE NEW JERSEY
COULD ACTUALLY GET CUSTODY OF BINN. A DEFENDANT FACING UNRELATED
INDICTMENTS PENDING IN THE SAME JURISDICTION THAT CAN'T BE TRIED
SIMULTANEOUSLY, THAT'S THE MIL CASE FROM THE APPELLATE DIVISION THAT WE KROOIT IN
OUR BRIEF. I WANTED TO POINT OUT THAT WOULD BE THIS VERY CASE
IF THE STATE HAD NOT MOVED TO CONSOLIDATE THE TWO SEPARATE INDICTMENTS THAT WERE
FACED THE DEFENDANT IN THIS CASE. THERE WERE TWO SEPARATE INDICTMENTS AND I
BELIEVE IT WAS IN JUNE THE STATE MOVED TO CONSOLIDATE THEM SO THE DEFENDANT
COULD HAVE ONE TRIAL AN THE STATE OBVIOUSLY DID THAT AND THAT SHOWS GOOD FAITH IN
MOVING THIS CASE FORWARD. IF THE STATE HAD NOT DONE THAT, CERTAINLY
ONLY ONE INDICTMENT CAN BE TRIED AT A TIME. A DEFENDANT CAN'T BE ON TRIAL
AT THE SAME TIME UNDER TWO DIFFERENT INDICTMENTS AND THE DEFENDANT REALLY HAS NO
ANSWER FOR THAT BECAUSE UNDER HIS PROPOSED RULE THERE WOULD BE NO TOLLING
ON THE SECOND CASE FOR WHEN THE FIRST CASE IS ACTUALLY BEING TRIED CLOP UP TOP
MILER CLOP. AND, AGAIN, A DEFENDANT BEING WITHOUT COUNSEL,
THE CHIEF ALREADY BROUGHT THAT UP AN WE THINK THAT THAT IS ALSO SOMETHING THAT
WOULD NOT BE COVERED BY DEFENDANT'S VERY NARROW ROLE. AND AGAIN,
I JUST WANT TO EMPHASIZE HOW NARROW THE RULE IS. JUSTICE
PATTERSON: CAN I INTERRUPT YOU ON THAT, THE ANSWER WE'RE HEARING FROM THIS SIDE
OF THE ROOM IS THAT'S NOT A PROBLEM, YOU GO TO THE COURT GET A GOOD CAUSE,
IF HE DOESN'T HAVE COUNSEL THAT'S GOOD CAUSE FOR A CONTINUANCE. WHY
IS THAT NOT THE SOLUTION, MOOEK MOOEK A FEW THING, THE FACT THAT IT COULD BE GROUNDS
FOR A CONTINUANCE DOES NOT MEAN THAT A DEFENDANT IS UNABLE TO TRIAL.
SOMETHING COULD BE BOTH AND I THINK MOTIONS, FOR EXAMPLE, CAN FALL UNDER BOTH.
I THINK SOMETHING THAT JUDGE SABATINO MENTIONED BEFORE THAT
WE WANT TO HAVE, YOU KNOW, RULES THAT ARE PREDICTABLE. LETTER I MEAN, I THINK
I WOULD IMAGINE IN MOST CASES IF THE DEFENDANT DOESN'T HAVE COUNSEL, A
JUDGE WOULD NOT BE DENYING A CONTINUANCE, BUT THERE COULD BE OTHER EXAMPLES OF SITUATIONS
WHERE A JUDGE IS RELUCTANT TO GRANT THE CONTINUANCE ON A WHOLE SOURCE OF
ISSUES. I THINK UNABLE TO STAND TRIAL 'MEANS UNABLE TO STAND
TRIAL AND THAT BRINGS ME TO MY SECOND POINT. I WANTED TO TALK ABOUT
THE COURT RULES AND, SPECIFICALLY, COURT RULE 310-2 B WHICH WE KROOIT IN OUR
BRIEF AND THERE WAS A FEW QUESTIONS ABOUT THE COURT RULES AND HOW THAT PLAYS INTO
THIS CASE. I JUST WANT TO READ THE EXACT LANGUAGE BECAUSE I
THINK IT IS VERY IMPORTANT. A MOTION MADE BEFORE TRIAL SHALL BE
DETERMINED BEFORE THE TRIAL MEMORANDUM IS PREPARED AND THE TRIAL DATE FIXED UNLESS
THE COURT FOR GOOD CAUSE ORDERS IT DEFERRED FOR DETERMINATION AT OR AFTER TRIAL.
SO JUST PATH YOU HAD ASKED THE STATE WHAT MOTIONS WOULD BASICALLY
FIT WITHIN THIS RULE OF AUTOMATIC TOLLING AN IN THE ATTORNEY GENERAL'S VIEW, ANY
PRETRIAL MOTIONS THAT THE COURT HAGS NOT FOUND GOOD CAUSE TO DEFER BECAUSE
IF THE COURT FINDS GOOD CAUSE TO DEFER IT UNTIL LATER, THE DEFENDANT IS ABLE TO
STAND TRIAL AND THAT COULD HAPPEN WITH, UVEN, A WHOLE HOST OF MOTIONS, MOTIONS
IN LIMINE ARE OFTEN PUT OFF UNTIL LATER AN THEN THE DEFENDANT WOULD BE STILL ABLE
TO STAND TRIAL AT THAT POINT. BUT WHEN YOU HAVE -- THIS CASE
IS THE PERFECT EXAMPLE A MOTION TO SUPPRESS PHYSICAL EVIDENCE AND
STATEMENTS THAT WERE MADE TO THE POLICE. IT'S IN EVERYONE'S INTEREST FOR THOSE
MOTIONS TO BE DECIDED BEFORE HANDS. I MEAN THERE COULD BE PLEA NEGOTIATIONS.
DEFENDANT MAY WANT TO RECONSIDER A PLEA. THE STATE NEEDS TO
KNOW WHAT EVIDENCE IS ACTUALLY ADMISSIBLE. OTHER EXAMPLES OF
MOTIONS THAT I THINK ARE IMPORTANT ARE MOTIONS FOR SEVERANCE OF COUNTS, OF
CODEFENDANTS. I MEAN A TRIAL CANNOT PROCEED UNLESS THOSE MOTIONS ARE DECIDED.
BUT THE SAFETY VALVE, I WILL SAY IS THAT IF A JUDGE FINDS THAT
THERE IS GOOD CAUSE TO DEFER THE MOTION, THEN THE DEFENDANT IS TECHNICALLY ABLE
TO STAND TRIAL. NOW, HERE, THE DEFENDANT NEVER ASKED TO
DEFER THOSE MOTIONS. THE DEFENDANT WANTED THOSE MOTIONS RESOLVED. IT MAKES SENSE.
SO IN THE WORDS OF THE PENNSYLVANIA SUPREME COURT, I THINK
THE CASE WAS MONDAY TEE YOEN, THE DEFENDANT CONSENTED TO ALLOW THE COURT THE RE
QUISITE TIME TO DISPOSE OF THEM IN THIS CASE WE KNOW IT WAS 54 DAYS TO DISPOSE
OF THOSE TWO MOTIONS. THERE WAS AN EVIDENTIARY HEARING AND THE APPELLATE
DIVISION RIGHTLY POINTED OUT THAT THIS WAS NOT AN UNREASONABLE PERIOD OF TIME
AN THE DEFENDANT IS NOT SUGGESTING IN ANY WAY THAT IT WAS.
JUDGE SABATINO: MS. MOOEK WHAT IS THE A G'S POSITION CONCERNING AUTOMATIC TOLLING?
ARE THERE CERTAIN MOTIONS THAT YOU AGREE WITH THE PROSECUTOR
'S OFFICE SHOULD BE AUTOMATICALLY A BASIS FOR TOLLING AND, IF SO, MOTIONS BY WHOM?
MOOEK MOOEK MOTIONS BY EITHER PARTY THAT THE COURT HAS DECIDED -- IN LINE
WITH THE COURT RULE MUST BE DECIDED BEFORE TRIAL AN CANNOT BE DEFERRED SO SUPPRESSION
MOTIONS, SEVERANCE MOESHGZ. THE STATE'S MOTIONS WOULD BE COVERED AS WELL
IF THEY ARE NOT DEFERRED. I WANT TO -- THERE IS ONE CASE THAT DOES TALK ABOUT
STATE MOTIONS SPECIFICALLY THAT'S THE SECOND CIRCUIT CASE CITED IN OUR BRIEF,
UNITED STATES VERSUS BLANK AND THE SECOND CIRCUIT SAID THAT GOVERNMENT MOTIONS
SHOULD BE CONSIDERED UNABLE TO STAND TRIAL IN THAT CASE, CEPHAS CLOP.
WHEN WE HAVE A STATE MOTION. JUSTICE PATTERSON: THAT'S BASED ON
THE FEDERAL SPEEDY TRIAL, MOOEK MOOEK THAT'S I'M PAR REMAT TEAR YEAH.
JUSTICE WAINER APTER: THE SECOND CIRCUIT CASE WAS DECIDED UNDER THE
IAD OR UNDER THE S T A MOOEK MOOEK THE SECOND CIRCUIT CASE WAS UNDER THE I A D
AND LOOKING TO THE FEDERAL ST. A. JUSTICE WAINER APTER: BUT
IT WAS STILL UNABLE TO STAND TRIAL, WHICH ARE WORDS THAT ARE ONLY FOUND
IN THE IAD. THOSE WORDS ARE NOT FOUND IN EXACTLY THAT WAY IN THE ST. A, RIGHT?
MOOEK MOOEK YES. AND I WANTED TO CLARIFY ONE THING. THIS MORNING,
DEFENSE COUNSEL MENTIONED THE ATTORNEY GENERAL'S BRIEF AND WHAT WE SAID ABOUT THE
COURT RULES AN I WANT TO BE CLEAR IN WHAT THE ATTORNEY GENERAL'S POSITION
IS. THE ATTORNEY GENERAL IS NOT SUGGESTING THAT IN ANY CASE
WHERE THE DEFENDANT FILES A SUPPRESSION MOTION THE STATE HAS THIS CHOICE THAT IT
CAN GO TO TRIAL WITH POTENTIALLY INADMISSIBLE EVIDENCE; THAT'S NOT WHAT
WE'RE SAYING AND THAT IS CERTAINLY NOT WHAT THE COURT RULES CONTEMPLATE AN I THINK
ANY DEFENSE ATTORNEY WOULD BE OBJECTING IF THAT WAS WHAT THE STATE WAS TRYING TO
DO. THAT IS WITHIN THE DISCRETION OF THE JUDGE. THE JUDGE
IS THE ONLY ONE WHO CAN DECIDE WHETHER A MOTION CAN BE DEFERRED FOR LATER.
SO IF A DEFENDANT FILES A SUPPRESSION MOTION I THINK IN ALMOST EVERY ACE
IT'S GOING TO BE DECIDED BEFORE TRIAL. IT HAS TO BE DECIDED BEFORE TRIAL AN
THEREFORE THE DEFENDANT IS UNWITH ABLE TO STAND TRIAL FOR THAT TIME PERIOD CLOP
CASE CLOP. AND THEN I WANTED TO -- THE THIRD POINT I WANTED
TO MAKE ON THIS WAS TO ANSWER JUDGE SABATINO'S QUESTION ABOUT MOTIONS FOR RELIEF
TO APPEAL. THERE IS SOME CASE LAW ON THIS CITED IN THE ATTORNEY GENERAL'S BRIEF
BUT I WILL HIGHLIGHT IT FOR THE COURT NOW. DIL LAN VERSUS STATE THAT'S
A TENNESSEE SUPREME COURT CASE FROM 1992 AND THERE THE TENNESSEE SUPREME COURT
SAID THAT FAILING TO TOLL THE TIME DURING THE STATE'S GOOD FAITH APPEAL OF A DECISION
ON A PRETRIAL MOTION BASICALLY RENDERS THE DECISION FINAL BECAUSE IF THE
TIME IS NOT GOING TO BE TOLLED WHILE THE STATE SEEKS THAT INTERLOCUTORY APPEAL
THE IAD CLOCK IS PROBABLY GOING TO RUN. AND, UNITED STATES
VERSUS WIN TERSE IS AN 8TH CIRCUIT CASE FROM 2010 AN IT ALSO BASICALLY SAYS
THAT THE TIME SHOULD BE TOLLED WHILE THE GOVERNMENT APPEALS A SPRESHGS RULING.
JUDGE SABATINO: THIS IS YOUR ONLY CHANCE TO APPEAL, MOOEK
MOOEK YES, EXACTLY UKS, BECAUSE IT'S OR OUR ONLY CHANCE TO APPEAL SFLFRMTHS LOOKING
TO THE CLOCK WOULD YOU LIKE TO MOVE ON TO THE JURY SELECTION ARGUMENT, MOOEK
MOOEK SURE IF I COULD MAKE ONE SMALL POINT I WANTED TO SAY YOU DEFENSE COUNSEL
THIS MORNING ARGUED THAT THIS WOULD BE A SLAM DUNK FOR A CONTINUANCE AND
I DON'T NECESSARILY AGREE WITH THAT. THE CONTINUANCE HAS TO BE GRANTED BY THE
TRIAL COURT AND IF THE TRIAL COURT HAS JUST SUPPRESSED THE EVIDENCE, I DON'T
THINK IT'S AUTOMATIC THAT THE TRIAL JUDGE IS GOING TO FIND GOOD CAUSE FOR A CONTINUANCE,
BUT YES, I WILL MOVE ON TO THE JURY SELECTION ISSUE. THE
FIRST -- BEFORE I GET INTO THE MERITS OF IT, I JUST WANT T TO POINT OUT OBVIOUSLY
THE COURT DOES NOT NEED TO REACH THIS ISSUE IF IT FINDS THAT THE CLOCK WAS
TOLLED BY THE MOTIONS IN THIS CASE BECAUSE THE 54 DAYS PUSHED THE CLOCK OUT TO
OCTOBER 14TH, I BELIEVE IT WAS AND THE TRIAL WAS ACTUALLY BY THAT POINT SO BY ANY
DEFINITION THE DEFENDANT'S RIGHTS WERE HONORED. IF THE COURT
DOES REACH THIS ISSUE, JUST TWO POINTS I WANTED TO MAKE, THE FIRST IS, THERE WAS
SOME QUESTIONS ABOUT THE LENGTH OF DELAY ABDOMEN AND THE ATTORNEY GENERAL'S
POSITION IS THAT THIS COURT SHOULD ADOPT THE BURLINGTON COUNTY MAN CASE OUT OF THE
NEW HAMILTON SUPREME COURT WHICH BASICALLY SAYS THAT JURY SELECTION IS THE
START OF TRIAL FOR IAD PURPOSES FOLLOWING THE FEDERAL SPEEDY TRIAL CASE LAW BURT
HAS THIS CAVEAT OR IMPLICIT PART OF IT HOPING THAT PROSECUTORS IN COURTS
WILL ACT IN GOOD FAITH TO ENSURE THAT THE ENTIRE MOVES ALONG EXPEDITIOUSLY AND
THE ATTORNEY GENERAL CERTAINLY WELCOMED THAT LANGUAGE. I JUST
WANTED TO TOUCH A LITTLE BIT ON THE DUE BER RECASE THAT WAS ADDRESSED WITH THE STATE
DURING THE STATE'S PRESENTATION. SO THE LENGTH OF DELAY THERE
WAS FEBRUARY 5TH, #19D 901990 IS WHEN THE JURY WAS SELECTED, THE FIRST JURY
WAS SELECTED AN FROM MY CALCULATIONS, THAT WAS THE 70-DAY DEADLINE UNDER THE SPEEDY
TRIAL ACT. AN THEN THE EVIDENCE DENT RARE YEE PORTION OF THE
TRIAL DID NOT START UNTIL MARCH 29TH, 1990 SO I THINK THAT'S A SIMILAR DELAY TO
THE CASE WE HAVE HERE. AGAIN, WE'RE NOT SUGGESTING THAT THIS AMOUNT
OF DELAY SHOULD NECESSARILY BE ENCOURAGED BUT JUST TO SHOW AN EXAMPLE OF
WHERE IT COULD BE FOUND TO BE A REASONABLE TLA UN THE CIRCUMSTANCES. IT IS VERY
FACT SPECIFIC. IT CANNOT BE AN ATTEMPT TO EVADE THE SPIRIT OF THE ACT AN
JUST LIKE IN DUE BER REIT WAS NOT AN ATTEMPT TO EVADE THE SPIRIT OF THE ACT IT
WAS MORE JUDICIAL VACANCIES AN SCHEDULING MATTERS THAT'S REALLY WHAT WE
HERE. UNLESS THE COURT HAS ANY OTHER QUESTIONS, I WOULD RELY
ON MY BRIEF AN WOULD ASK THE COURT TO AFFIRM THE APPELLATE DIVISION'S DECISION.
THE COURT: THANK YOU, MS. MOOEK. MR. AVIDAN,
REBUTTAL, WE HAVE BEEN GENEROUS WITH TIME THIS MORNING, I AM GOING TO ASK YOU TO
STAY WITH THE FIVE MINUTES WE HAD SET FORTH. SHANE D. AVIDAN:
FIRST, MR. CHIEF JUSTICE YOU CAN LOOK TO THE SPEEDY TRIAL ACT FOR THE DEFINITION
OF GOOD CAUSE. I DON'T THINK MUCH IS NEEDED IN TERMS OF GUIDANCE. IT IS
A VERY BROAD STANDARD BUT CERTAINLY IF IT'S AN EXCLUSION IN THE ST. A I THINK THAT
WOULD PROBABLY BE GOOD CAUSE. THIS IS NOT WHETHER MOTIONS ARE PER SE OR
GOOD CAUSE BUT WHETHER HERE THEY ARE DECIDED TWO MONTHS IN ADVANCE.
THE SEBD IS THE ST. A IS NOT THE MORE CLEAR STATUTE. THIRD,
REGARDING CLUZ, I THINK THE RECORD DOESN'T SHOW IT ONE WAY OR THE OTHER SO THAT
HE COULD HAVE BEEN TRIED EARLIER. THE ONLY ISSUE -- ONLY THAT THE ISSUE
WAS DISCUSSED IN CHAMBERS THAT CAN'T BE A BASIS FOR ANY OTHER TIME BEING ADDED
TO THE CLOCK. YOU KNOW, IF YOU -- THE STATE RAISES THIS IDEA
THAT IF THE DEFENSE ATTORNEY OR THE JUDGE IS IN COURT ON ANOTHER CASE THAT'S GEG
TO ADD TIME TO THE CLOCK AND THAT'S GOING TO BE MOST DAYS. 180 DAYS IS GOING
TO BECOME SEVERAL YEARS IF YOU ADOPT THAT STANDARD. IT'S GOING TO INCREASE EX
PONENTIALLY. THE FOURTH POINT IN THE STATE SAID IT REQUESTED
A CONTINUANCE, THAT'S ABSOLUTELY NOT THE CASE. THE STATE SAID THAT HE WAS UNABLE
AS A RESULT OF HIS MOTIONS, DHFS A CLEAR REFERENCE TO TOLLING; THAT'S HOW THE
JUDGE UNDERSTOOD IT. HE SAID HE WAS GOING TO LOOK AT TOLLING. HIS WRITTEN OPINION
KROOITS ARTICLE # 6 A QUOTES UNABLE TO STAND TRIAL, CALLS IT TOLLING AND THE
WORDS GOOD CAUSE ARE THERE BUT NOT THE OTHER ELEMENTS OF A CONTINUANCE. WE'RE
REALLY TALKING ABOUT AN AFTER THE FACT RECONSTRUCTION OF THE CONTINUANCE RATHER THAN
ONE THAT WAS GRANTED. REGARDING THE DELAY AFTER JURY SELECTION,
YOU KNOW, WE ADDRESSED THE DUE BER RECASE IN OUR BRIEF BUT I THINK A LOT
OF THAT DELAY WAS DUE TO EVENTS THAT WERE NOT FORESEEABLE ON THE FIRST DAY OF JURY
SELECTION AND THE STANDARD WE'RE ASKING FOR IS WHAT WAS THE JUDGE'S INTENTION
AND AVAILABILITY AT THE TIME THAT THEY START JURY SELECTION. THE
GONS CASE IS A TOTALLY DIFFERENT SITUATION WHERE THE. BLUE
MAN WENT OUT. REGARDING APPAREL 6 B, THEY ARE SIMILAR, THEY
OVERLAP, 6 B ADDRESSES MENTAL INCOMPETENCE FOUND IN THE FIRST JURISDICTION, 6 A
INCOMPETENCE IN THE SECOND JURISDICTION. I WOULD JUST SAY TO
SUM UP, THIS COMPACT IS WORKING IN THE FIFTH AN 6TH CIRCUITS. IT'S
EXTRAORDINARILY SUCCESSFUL. NEW JERSEY IS IN THE SUPREME COURT NOW.
CHIEF JUSTICE RABNER: IF YOU WOULD WRAP UP WITH THAT LAST SENTENCE, CAN YOU EXPLAIN
THAT POINT AGAIN, THE DIFFERENT JURISDICTIONS THAT 6 B IS ADDRESSING.
SHANE D. AVIDAN: SURE. IF THE SENDING JURISDICTION HAS FOUND
THE DEFENDANT INCOMPETENT, THEY ARE TOTALLY EXCLUDED FROM THE IAD. THE DETAIN
IN HER DOESN'T HAVE TO BE RECOGNIZED THE ANTI SHUT WILLING RULE DOESN'T
APPLY AN THEY ARE TOTALLY OUT OF THE COMPACT, WHEREAS 6 A IS ONLY ADDRESSING SPEEDY
TRIAL TIME AND THAT'S IF IT'S FOUND IN THE SECOND JURISDICTION AND IT REALLY
ADDRESSES DIFFERENCES IN THE MENTAL COMPETENCE STANDARDS BETWEEN THE STATES AND
THAT'S THE REASON BY THE WAY THAT THIS EXCEPTION IS NOT IN THE COMPANION
STATUTE THE INTRASTATE DEE, DETAIN IN HER'S ACT BECAUSE IT'S JUST NOT NEEDED IN
THE SINGLE STATE SITUATION. CHIEF JUSTICE RABNER: IS THERE LANGUAGE
EITHER ARTICLE 6 OR IN THE LEGISLATIVE HISTORY THAT SUPPORTS THE SUGGESTION
THAT THE ADJUDICATION TO MENTAL ILLNESS THERE APPLIES ONLY TO THE FIRST JURISDICTION?
SHANE D. AVIDAN: 6 A SAYS UNABLE TO STAND TRIAL AS FOUND
BY THE COURT WITH JURISDICTION, WHICH I THINK IS A REFERENCE TO THE RECEIVING STATE,
NOT THE SENDING STATE. IF IT HAD BEEN FOUND IN THE SENDING STATE THEY NEVER
WOULD HAVE BEEN SENT BECAUSE THEY ARE EX CONCLUDED FROM THE COMPACT.
THE COURT: PLEASE. JUSTICE WAINER APTER: CAN YOU RESPOND TO
THE ATTORNEY GENERAL'S SUGGESTION THAT THE CASES THAT YOU ARE TALKING ABOUT
ARE NOT ACTUALLY INTERPRETING A STATUTE THAT USES THE WORD UNABLE TO STAND TRIAL
AN THEREFORE SAYING THAT A DEFENDANT IS ONLY UNABLE TO STAND TRIAL WHEN
THE DEFENDANT IS MENTAL OOLY OR PHYSICALLY IN KRE XENT, THEY ARE HAPPEN TO BE DECIDING
THAT IN THIS PARTICULAR CASE THE DEFENDANT WAS PHYSICALLY INCOMPETENT AN
THEREFORE UNABLE TO STAND TRIAL. SHANE D. AVIDAN: THEY'RE
INTERPRETING AN COMMON LAW RIGHT THAT GOES BACK TO THE TIME OF BLACK STONE.
THE USAGE IS UNIFORM, EVERY CASE THAT HAS BEEN CITED IS REFERRING TO THAT.
JUSTICE WAINER APTER: WHEN YOU SAY IT'S REFERRING TO THAT, IT IS ONE THING
TO SAY THERE IS A COMMON LAW RIGHT TO NOT HAVE TO STAND TRIAL IF YOU'RE UNABLE
TO STAND TRIAL AND THAT ONLY MEANS TO THE BE PHYSICALLY OR MENTALLY INCOMPETENT
AN THEN THERE IS ANOTHER COMMON LAW RIGHT TO SAY YOU DON'T HAVE TO STAND TRIAL
IF YOU'RE UNABLE TO STAND TRIAL. AND HERE THE DEFENDANT WAS UNABLE TO STAND TRIAL
BECAUSE THE DEFENDANT WAS PHYSICALLY GIN XE TENLT. ARE THEY
GIVING THAT AS AN EXAMPLE OR ARE THEY HOLDING THAT A DEFENDANT IS ONLY UNABLE TO
STAND TRIAL IF THEY ARE PHYSICALLY OR MENTALLY UNABLE TO DO SO.
SHANE D. AVIDAN: I THINK WHEN ALL 50 EXAMPLES WILL ARE. IF
THERE WAS AN EXAMPLE OF ANOTHER MEANING I THINK IT WOULD BE A DIFFERENT SITUATION
WHERE YOU WOULD HAVE THO LOOK AT IS THE ONE USAGE REALLY PREDOMINATING OVER
THE OTHER. THERE IS NO OTHER USAGE IT'S PERFECTLY CLEAR WHAT LAWYERS WOULD
HAVE UNDERSTOOD THIS TERM TO MEAN IN 1957 AN THAT'S ADD JUD CAT ACTIVE COMPETENCE.
I THINK THE COMPACT IS WORKING. NO ONE HAS TRIED TO LEAVE IT.
THE COURT: I HAVE ONE MORE QUESTION AS YOU'RE WRAPPING UP. ARE
YOU SUGGESTING THAT THE LANGUAGE IN 6 B DOES NOT APPLY TO AN ADJUDICATION OF MENTAL
ILLNESS BY THE RECEIVING JURISDICTION? SHANE D. AVIDAN:
I THINK THAT'S RIGHT AND I WOULD KROOIT THE AL MAN CASE, THE PERSON IS FOUND
COMPETENT IN OHIO AN THEN SENT TO MARYLAND AND THEN FOUND NOT GUILTY BY REASON OF
DEFECT IN MD MD AND THE DEFENDANT'S ARGUMENT IS I AM WITHIN 6 B I CAN'T BE SENT
BACK TO OHIO AND I THINK THAT HAS BEEN REJECTED. THERE IS LESS THAN TEN
CASES -- SGFRMTHS I AM NOT SURE THAT SUPPORTS THE PRINCIPAL THAT YOU.
CHIEF JUSTICE RABNER: I AM NOT SURE THAT SUPPORTS THE PRINCIPAL THAT YOU'RE
SUGGESTING, THE FIRST STATE MIGHT HAVE WANTED TO CONSIDER THE MATTER ANEW, THE
SENDING JURISDICTION, WHY ISN'T AN ADJUDICATION OF MENTAL ILLNESS IN 6 B
YOUR ARGUMENT IN CONFLICT WITH THE LANGUAGE THAT YOU HAVE ARGUED WITH RESPECT TO
INABILITY TO STAND TRIAL GENERALLY. SHANE D. AVIDAN: I THINK
THERE IS OVERLAP BETWEEN 6 A AND 6 B WHICH CONFIRMS THE HISTORY I CAN MEANING.
IT IS NOT SUPERFLUOUS BY ANY MEANS. IT IS NOT IN CONFLICT THEY ARE JUST TWO DIFFERENT
WAYS OF DEALING WITH THIS PROBLEM OF MENTAL ILLNESS WHICH WAS IN THE AREA
IN TERMS OF THE STAITS IN TERMS OF THE PROCESSES THAT THEY FOLLOW. ONE HAND 6
B SAYS THEY'RE EXCLUDE FROM THE COMPACT, BUT 6 A ALSO TRAES ES THE ISSUE OF
TOLLING TIME. I THINK THERE IS A LOT OF REALLY INTERESTING QUESTIONS
ABOUT ARTICLE 6 THAT JUST AREN'T PRESENTED HERE. MR. AMANTIA AMER IS CLEARLY MENTALLY
COMPETENT SO MAYBE SOME OF THEM HAVE TO BE RESERVED FOR ANOTHER CASE BUT
THE 6 B CASE DOESN'T ARISE THAT MUCH. IT'S NOT A SIGNIFICANT PROBLEM UNDER THE
COMPACT. YOU'RE LEFT WITH THE FACT THAT HE WAS TRIED AFTER
202 DAYS NOT 180, THE ONLY RECOMMEND MED TEE IS DISMISSAL WITH PREJUDICE AND THAT'S
WHAT WE WOULD ASK THE COURT TO DO. THE COURT: THANK YOU,
THANK YOU ALL COUNSEL, VERY FINE ARGUMENTS THIS MORNING. MR.
AVIDAN, I SIGH ON MY SHEET THAT SAYS YOU'RE NOT YET ADMITTED TO THE NEW JERSEY BAR,
YOU CAN REMEDY THAT BEFORE WE WELCOME YOU BACK AGAIN