DO WORDS MEAN ANYTHING ANYMORE???
"We do not count continuances granted by
the district court where it made no specific findings supporting a general mantra[s] of 'complexity'." (US
v. Aviles, 170 F.3d 863, 869 (9th Cir.1998)). Thus, here is a clear distinction of a
'Complex' case as defined by the law.
In ruling that a defendant has some responsibility to assert a speedy trial claim, we do not depart from our holdings in other cases concerning the waiver of fundamental rights, in which we have placed "the entire responsibility on the prosecution to show that the claimed waiver was knowingly and voluntarily made."
A 'reasonable relation' standard should govern the duration of 'ends-of-justice' continuances under the Speedy Trial Act. According to the 'reasonable relation' approach, the duration of a continuance should be related to the rationale for the continuance. Continuances should be open-ended only when justified by the rationale, and when an end date cannot be fixed. In addition to the 'reasonable relation' approach, courts have applied the 'definite duration' approach and the 'reasonable duration' approach.
The Act expressly excludes from the ends-of-justice exception delays due to "court calendar congestion."
Docket # 65
Page 19, Lines 6
Judge Matz: “And the problem is I’m going to be in trial.” ,
Lines 13-15Judge: “So I think you need to consult with Killercop and with my court clerk, and see what dates are available to you and the prosecution.”
Court may not grant continuance for delays caused by congestion of court’s calendar. U.S. v. Stroudenmire, 74 F.3d 60, 64 (4th Cir. 1996); U.S. v. Ortega-Mena, 949 F.2d 156, 159-160 (5th Cir. 1991)
Continuances due to general congestion of courts’ calendars are forbidden by the Act. §3161(h)(8)(C); U.S. v. Engstrom, 7 F.3d 1423, 1427 (9th Cir. 1993).
Judge set this date of December 3rd himself; back on September 23, 2002, page 28, lines 7-8 and page 31, lines 7-8, specifically requesting and requiring December 3rd.
On Nov. 24, 2002, Elena Duarte sent a letter to William Harris, counsel for Killercop in the "complex" computer case. Therein she stated “This letter is in response to your proposal that we stipulate to a continuance of the trial… I am uncomfortable doing so unless you know of some authority that indicates that you may request and receive a continuance over your client’s objection. I am comfortable with the exclusion of time under the Speedy Trial Act even without your client’s concurrence, however, as the case is complex and motions are pending.”
Thereafter Harris filed a stipulation on November 27, 2002, without informing Killercop and therein he “represented that the Killercop has ‘represented’ that he is willing to waive his right to a speedy trial…”
Everyone signed it, but Killercop.
Trial was set for December 5, 2002. On 1/3//03 Judge Matz reminded all parties (See docket # 80) that a “firm date” is “set for trial” on 1/14/03.
6.2.3.1.1 Ends of Justice Exception
In Sanders v. United States, 373 U.S. 1 (1963), the Supreme Court held that in order for a federal court to consider a claim previously addressed in a habeas proceeding, the petitioner must demonstrate that the previous decision was not on the merits or that reconsideration of the merits would serve the ends of justice. Courts typically defined the “ends of justice” by objective factors such as, but not limited to, whether a full and fair hearing occurred on the original petition or whether an intervening change in the facts or applicable law occurred. However, in Kuhlmann v. Wilson, 477 U.S. 436 (1986), a Supreme Court plurality limited consideration of the “ends of justice” to cases in which the petitioner supplements the claim with a colorable showing of factual innocence.
Moreover, the post-AEDPA version of 28 U.S.C. § 2244(b)(1)–“A claim . . . that was presented in a previous application shall be dismissed”–does not include the “ends of justice” exception for previously presented claims to be raised again in a subsequent petition.
Supreme Court:
Sawyer v. Whitley, 505 U.S. 333 (1992) (holding that in order to prove actual innocence, petitioner must show fair probability that rational trier of fact would have entertained reasonable doubt re: existence of facts which are prerequisites under state or federal law for imposition of death penalty).
Kuhlmann v. Wilson, 477 U.S. 436 (1986) (plurality) (holding “ends of justice” served where exception to dismissal of successive petition made only when the petitioner supplements constitutional claim with colorable showing of factual innocence).
Sanders v. United States, 373 U.S. 1 (1963) (permitting re-litigation of successive claim where previous adjudication was not on merits, or where reconsideration of the claim serves the ends of justice).
Ninth Circuit:
Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc) (emphasizing that a petitioner need not prove that he is actually innocent in order to pass through the Schlup gateway; petitioner need only present evidence of innocence that undermines confidence in the outcome of the trial; “the claim is procedural, not substantive”), cert. denied, 523 U.S. 1133 (1998).
Richmond v. Ricketts, 774 F.2d 957, 960 (9th Cir. 1985) (holding that where petitioner did not appeal the denial of previously litigated claims because they were not the basis for relief, reaching those claims serves Rule 9(b) ends of justice
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Is There A Difference Between "Interests Of Justice" and "Ends Of Justice?"
YOU BETCHA'
Show that the claimed waiver was knowingly and voluntarily Made, with the consent of the governed, Before someone dies!
There are certain periods of delay, which are excludable under section 3161(h) of the Act and, thus, do not count in computing whether the thirty-day deadline has run. Id.
§ 3161(h). For example, the Act allows time to be excluded in specific scenarios, such as when there are "other proceedings" involving the defendant, see 18 U.S.C. § 3161(h), as well as in the broader circumstance where "the judge granted such continuance
on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. " Id. § 3161(h)(8)(A)).
This discretionary category has come to be known as an "ends of justice" exclusion. See, e.g., Pollock, 726 F.2d at 1461.
End of justice . § 3161(h)(8)(A). Upon motion of the judge or a party for continuance, any period of delay is excludable from the Speedy Trial Act provided the continuance is based upon findings “that the ends of justice served by [the action taken] outweigh the best interests of the public and the defendant in a speedy trial.” Importantly, the court must set forth, on the record, the reasons for the finding(s), and the continuance must be specifically limited in time. United States v. Ramirez-Cortez, 213 F.3d 1149, 1154 (9th Cir. 2000) (quoting United States v. Lloyd, 125 F.3d 1263, 1268 (9th Cir. 1997) in turn quoting United States v. Jordan, 915 F.2d 563, 565-566 (9th Cir. 1990)).
Speedy Trial Act imposes strict specificity requirements for ‘end of justice’ exception; if district court fails to comply with them, period of time covered by continuance will not constitute excludable delay.” U.S. v. Lloyd, 125 F.3d 1263 (9th Cir. 1997)
Sparingly?
See also U.S. v. Ramirez-Cortez, 213 F.3d 1149 (9th Cir. 2000) “Congress did not intend the ‘end of justice’ exclusion … to be granted as a matter of course but rather to be used sparingly and only when necessary.” Id. at 1155. It must be (1) “Specifically limited in time” and (2) “justified with reference to the facts as of the time the delay is ordered.”(Emphasis in original). Id. at 1154.
05.16.2002
First “end of justice” excuse used by Judge. Cites that the “CASE IS COMPLEX as grounds #1,
Defense Counsel needs time to prepare as grounds #2.
On page 4 the attorney, Ms. Potashner, represents that she has spoken with the defendant …and that the defendant represented that he is willing to waive his right to a speedy trial. However the defendant’s signature is not on this document. Nor is there any proof that defendant “understands” his right and “knowingly and voluntarily waives and gives up his rights.”
FACT: "In ruling that a defendant has some responsibility to assert a speedy trial claim, we do not depart from our holdings in other cases concerning the waiver of fundamental rights, in which we have placed the entire responsibility on the prosecution to show that the claimed waiver was knowingly and voluntarily made."
A second “End of justice” excuse used by Judge Matz.
01.17.2003
A third “End of justice” excuse used by Judge Matz
03.14.2003
First “Interests of justice” excuse used by Judge Matz.
08.27.2003
A fourth “End of justice” excuse used by Judge Matz
10.01.2003
A second “Interests of justice” excuse by judge Matz on October 01, 2003.
Then it got ugly on the 10th of October, 2003.
FOOTNOTES:
See also May 16th, 2002, Stipulation To Continue Trial Date And Exclude Time.
See Exhibit of STIPULATION by Attorney Carlton Gun for Salvador Cardenas, to be signed by prosecutor Jeremy Matz, Mr. Gun, the Judge…and the Defendant. None of the stipulations contain the signature of the defendant in the instant case. Further, the Next counsel, William Harris, also filed a Stipulation on November 27, 2003, wherein he “represents that the defendant has represented that he is willing to waive his right to a speedy trial…” Page 3. Id. Again, Killercop ’s signature is not on this document. Nor is there any proof that Killercop “understands” his right and “knowingly and voluntarily waives and gives up his right or that anything was explained to him. This Stipulation by William Harris followed a letter from the Prosecutor wherein she urged him to stipulate “over your client’s objections.” See November 24, 2002 letter from Elena Duarte.
Page 33, Lines 14-25
Judge: “I do know that when I spoke to Mr. Reed earlier about the case we talked about the possibility of going in I believe it was three or four weeks, and whether he could be ready. If he has represented to the court that he would be ready in three to four weeks, I think it’s well within the court’s discretion, absent even a motion from him and over the defendant’s objection, to exclude time in the interests of justice…
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