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.
On Nov. 24, 2002, Elena Duarte sent a letter to William Harris, counsel for Killercop. 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.
§ 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.
Ends 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 ‘ends 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 ‘ends 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 ‘ends 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 right.”
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 ‘ends of justice’ excuse used by Judge Matz.
01.17.2003
A third ‘ends of justice’ excuse used by Judge Matz
03.14.2003
First “Interests of justice” excuse used by Judge Matz.
08.27.2003
A fourth ‘ends of justice’ excuse used by Judge Matz
10.01.2003
A second “Interests of justice” excuse by judge Matz on October 01, 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, the 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 Mr. 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 interestsof justice…
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