What You May Not Know About the Right to a Speedy Trial

Individuals have many familiar Constitutional rights. Freedom of Speech and the Fifth Amendment protection against self-incrimination are notable. Nobody but the individual may claim or waive those rights. So, for example, I cannot appear in court and demand that you testify against yourself.

The right to a speedy trial is an exception to that rule. This right applies to individuals AND to society. The courts have repeatedly held that justice is best served when a defendant’s trial occurs as soon as reasonably practicable. The benefits to society of a speedy trial are many and varied. A delayed trial may affect the availability of witnesses and memories of particular events. In more egregious cases, it limits the amount of time a defendant can use to intimidate witnesses or to attempt to try the case in the media.

Interestingly, the ability (and duty) to schedule a trial as soon as practicable is one of the most valuable arrows in a judge’s quiver. In some cases, it is impractical to hold a defendant in jail pending trial. Assessing fines for improper conduct may not deter wealthy individuals. And, most significantly, issuing a gag order may arguably violate the defendant’s free speech rights.

In cases where the alternatives are ineffective, society is protected by having the trial date accelerated. A judge frequently asks both the prosecutor and defendant for a proposed trial date and, absent a clear abuse of discretion, the judge’s determination will stand.

Sometimes defendants desperately want a trial delayed. Well-disciplined prosecutors can short circuit many delay attempts. Consider what the prosecutors in the DC case against Donald Trump did.

First, they only named one defendant. The more defendants there are in a case, the more individual delay arguments that can be raised.

Second, they limited the charges to those that have a strong history of judicial interpretation, even though there were other potential charges available to them. Many delays are caused by a defendant claiming that the charges they face are “unique.”

Third, they provided trial evidence (often called “discovery”) to the defendant promptly and well outlined, giving them more time to prepare a defense. 

Parenthetically, you will hear that there are millions of pages of discovery that have been turned over. Defendants claim that it will take years to read it all. This is a red herring. The state-of-the-art in reviewing discovery is to use computer-aided, key word searches. The idea that there are paralegals actually sitting down and reading millions of pages harkens back to a bygone era. It is simply unnecessary and no longer happens in the real world. Sounds good, though.

On August 28, the judge is scheduled to hear arguments about when the trial should begin. Prosecutors will argue in favor of a speedy trial, suggesting a highly aggressive date of January 2, 2024. Defendants will counter with a date of April 2026 or the Rapture, whichever occurs first.

The judge will set the trial date based largely on the elements discussed above.

What Is Missing From the Georgia Indictments?

Lawyers read legal filings differently from the general public. Whereas most people (including the talking heads) react to what is there, lawyers are more interested in what is omitted. The Georgia indictment handed down in today’s early hours is no exception. 

Unlike the DC court indictment which reads like a crime novel, the Georgia indictment is intricate and tedious. Such is the nature of a racketeering case. The first count of the indictment lays out, in sequential order, the 161 acts that constituted the “criminal enterprise.” All of the 19 named defendants participated in the alleged criminal behavior at some point or another, with some of the cast of characters appearing at different times. 

There are at least two important things missing from the indictment. 

First, detail. An indictment is not required to recount in excruciating detail what the evidence is that support each of the 161 criminal acts. Therefore, at this point we do not know exactly what happened on each of these occasions. That evidence will come out later. All that is required in the indictment is to lay out the bare bones of the criminal activity. 

Second, and here’s where it gets interesting, there are 30 unindicted co-conspirators mentioned in the indictment. What this means is that there were not “just” 19 people who engaged in the criminal activity; there were 49. 

The remaining 30 individuals are most likely people who have cooperated in the investigation (or were minor characters) and have therefore not been charged. The testimony that cooperating witnesses provide at trial will help the prosecutor prove the case. Should they fail to continue cooperating, there is nothing to prevent the prosecutor from adding them as defendants at a later date. 

The existence of unindicted co-conspirators generally points to a much stronger case. It is one thing for an independent witness to recount what “they” did (and then to have their credibility challenged on cross-examination). It is entirely another to have someone testify what “we” did. 

So, what is the takeaway from the “missing” parts of the indictment?  Of the 49 people who allegedly were part of the criminal enterprise, at least some of the 30 unindicted co-conspirators are likely cooperating with the investigation in some manner. In other words, they have already flipped. Does this mean that all of the remaining 19 will go to trial? Not likely. As the strength of the evidence against them increases, expect some of the remaining defendants to change their pleas in exchange for testimony and/or a reduced sentence. If that occurs, any criminal enterprise that existed will implode on a limited number of people. 

Note that my comments are first impressions. The case is exceptionally complex, and a lot of unexpected twists and turns are likely to occur before any trial takes place.  

Gag Orders and Protective Orders – One Affects Free Speech, the Other Does Not

“Objection, Your Honor!” I am not a fan of TV court dramas, but the one thing these programs generally get right is that both sides to a criminal trial may make objections. More often than not, these objections relate to how evidence is provided in court—or whether the “evidence” can even be heard by a jury.

The rules of evidence are highly complex, but they are designed for only one purpose –to make sure that the jury only hears what will allow them to properly make an impartial decision concerning guilt. In order to guarantee a fair trial, the jurors should be hearing that evidence for the first time in court.

The purpose of a protective order is to safeguard both the process and the people involved.  One component of such an order is that the defendant should not attempt to intimidate witnesses or jurors. You would think that this is an unnecessary admonition. Sadly, some people need to hear that.

More important for our purposes is the less frequent requirement that some information that may become evidence should be withheld from the defendant.

If you have ever taken small children to a party, you understand far too well that you never know what’s going to come out of their mouths. One way to limit the potential damage is to not discuss sensitive matters within their hearing. This is a day-to-day example of a protective order. If they haven’t heard something, they can’t repeat it.

Some defendants do not need the admonition to not speak inappropriately. Other defendants have a history of speaking without a filter. In those cases, the prosecutor will ask that some information not be shared with the defendant personally. This part of a protective order is designed to protect the integrity of the jury process and trial. On other words, it is a legitimate attempt to insure that the trial is conducted in court and not in the media.

A defendant retains the right to speak about his or her innocence and to say that the evidence, at trial, will offer vindication. A protective order, then, is not a violation of one’s First Amendment rights to free speech, and the judge may impose penalties, including fines or even imprisonment, for defendants who will not honor the rule of law. In exceptional cases, when the defendant remains intransigent, the judge may take the next step and issue a gag order.

Gag orders severely restrict what a defendant may say prior to trial, beyond weighing in on the evidence. These are orders of last resort because they have the potential to prevent defendants from strenuously affirming their innocence. Due to the severity of the restrictions, issues of the First Amendment right to free speech may arise.

Therefore, the terms “protective order” and “gag order” should not be used interchangeably. You should be wary of anyone who attempts to confuse the two.

Parenthetically, lawyers may also be subject to protective orders and disobedience to those orders may subject the lawyer to additional disciplinary action, including disbarment.

Is there enough to charge?

The most intriguing news last week was that a federal grand jury issued a 37-count indictment against former president Trump. The purpose of this note is not to take a position on the strength of the case. Rather, we will look at how the grand jury process safeguards the rights of a defendant. 

Federal felony charges can have devastating results. A conviction carries more than potential fines and jail time. It can also impact other individual rights such as the right to vote or the opportunity to obtain a security clearance. 

In our legal system, the seriousness of those impacts on individual freedom results in an added layer of protection for people charged with serious federal crimes. To put it simply, a defendant has THREE chances to win. 

A grand jury is a group of individuals, similar to a regular jury, that is selected from the general populace. It is not a politically appointed group. Their role is to examine evidence and testimony presented by the prosecutors and, on that basis, to recommend whether formal charges should be brought against a particular defendant. 

Grand juries are empaneled all the time and most of their work never receives media coverage. The reason is that many grand juries decide that there is simply not enough evidence to recommend an indictment. If the grant jury finds that evidence of a crime is lacking, the defendant wins without ever facing trial. 

The grand jury’s role, then, is to prevent the government from bringing charges to simply aggravate or penalize a defendant. The testimony and evidence that the grand jury receives is concededly one-sided. Its job is simply to look at evidence most favorable to the government and to see if there is enough evidence to warrant filing charges. In other words, the grand jury process prevents a “witch hunt” on a most basic level. 

Once charges are filed, there is a second chance for the defendant to win without going to trial. This is the pre-trial stage where the defense attorneys will argue that the charges should be dismissed from the outset. Dismissal can be granted for a variety of reasons including: the indictment was filed in the wrong court, the charges do not fall within the charged federal statute, or that the facts alleged in the indictment (when viewed most favorably to the government) do not provide enough evidence of a crime. If the judge dismisses the case at this early stage, the defendant once again wins. 

Finally, there is the trial. If the jury does not find that the government has proved its case beyond a reasonable doubt, the defendant wins. 

All of these procedural steps illustrate “due process” at its best. The systematic method of case preparation and presentation also answers the question of selective prosecution, or “why hasn’t so-and-so also been charged?” The straight-forward answer is that the prosecutor looks at the three stages where a defendant can win and decides not to waste time on those cases where success is not extremely likely.

 

Goodbye to the Special Master in the Mar-a-Lago Search Warrant Case

The Department of Justice (DOJ) obtained numerous boxes of materials from Donald Trump’s residence at Mar-a-Lago, pursuant to a validly issued search warrant based on a finding of “probably cause.” Many of the documents collected were marked “classified” and should have been turned over to the National Archives and Records Administration. 

Mr. Trump was not pleased. In response, he filed a new action in the United States District Court for the Southern District of Florida, which he styled as a “Motion For Judicial Oversight And Additional Relief.” This case was assigned to Judge Aileen Cannon—whom Trump had appointed.  Judge Cannon decided that the Justice Department should not have access to the materials for investigative purposes until a Special Master reviewed them and decided what the DOJ should properly have. 

The DOJ appealed the decision to the 11^th Circuit Court of Appeals. The DOJ argued that the appointment of a Special Master was ludicrous and that Judge Cannon should not have entertained the case in the first place. Today, a three- judge panel (one appointed by Bush and two by Trump, for those who are keeping score), issued a scathing opinion in favor of the DOJ. The first paragraph of the decision says it all: 

“This appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation. The answer is no.” 

This was not a difficult decision for the Court of Appeals to make. It all comes down to a fundamental rule in the Federal court system. Federal courts are called courts of limited jurisdiction. In other words, there are specific rules and classifications that apply before a federal court will even accept your case. If the case that you, as a plaintiff, want to file does not fit into those classifications, you are out of luck. 

There is one exception to that rule, however. If you can show that an extremely rare reason exists, the court may exercise “equitable” jurisdiction. As the Court of Appeals said here, “Only the narrowest of circumstances permit a district court to invoke equitable jurisdiction. Such decisions ‘must be exercised with caution and restraint,’ as equitable jurisdiction is appropriate only in ‘exceptional cases where equity demands intervention.’” 

The judicial test to see if it should exercise equitable jurisdiction has four components—and you need to satisfy all of them. The Court of Appeals found that Judge Cannon was incorrect on all four. Therefore, not only did the judge not have the authority to appoint a Special Master, but she lacked jurisdiction to hear the case at all. 

The result is that the entire case filed by Trump is being dismissed and the DOJ can continue with its investigation, using all of the materials obtained in the search warrant. 

It is, of course, possible that Trump’s attorneys will ask the Supreme Court to overturn this decision. A reversal is exceptionally unlikely.

Search Warrants and National Security

 

When we last discussed the search warrant for Trump’s Mar-a-Lago residence, Trump was flummoxed that his appointed judge had found probable cause to issue the warrant. So he went to a different judge that he had appointed (Judge Cannon) to get an injunction against the use of the materials seized. His belief was that a Special Master should be appointed to review the seized items. The ultimate goal was to have some of the items returned to him and to have others taken from investigators for a number of inconsistent and mutually exclusive reasons.

Trump’s lawyers and the Department of Justice both proposed two names to be the Special Master, with the DOJ eventually agreeing to one of Trump’s proposed Special Masters, Judge Raymond Dearie. 

In Cannon’s appointment of Judge Dearie, she also set the rules for his review of the items seized in the warrant. She said he was to review everything but that the DOJ could continue, for classification purposes only, the review of approximately 100 documents with top secret or similar markings. The DOJ was prohibited from using the materials for any other purposes, including the continuation of their criminal investigation. 

It was clear to the DOJ that Trump’s goal in having a Special Master appointed was to delay and obfuscate the proceedings as long as possible and to throw in as many objections as possible. So they had a choice. They could either sit back and wait for Judge Dearie to complete his review (which could take months) or to appeal Judge Cannon’s order to the 11^th Circuit Court of Appeals. 

The cynical among us would first look at the composition of the 11^th Circuit. In all likelihood, they would be Trump-appointed judges. The DOJ decided to appeal but did so in a brilliant manner. They could have appealed the appointment of a Special Master, but the 11^th Circuit could very well deny that appeal on the grounds that Judge Cannon was simply exercising judicial discretion.

Instead, the DOJ focused on a singular issue – the national security interest in protecting top secret documents and in taking prompt and prudent action to make sure that (1) our national security was not compromised and (2) any criminal activity related to those documents was vigorously pursued. 

It came as no surprise that the three-judge panel hearing the DOJ appeal had two members appointed by Trump. That mattered not. It took the court mere days to rule, unanimously, that the DOJ was correct in its analysis. Their decision reversing Judge Cannon was as brutal a rebuke as you will ever see from a court. Typically, a court will say that the judge “erred” in her analysis. This court said that she had “abused her discretion.” This is the judicial equivalent of asking “Are you kidding me????” There are four legal standards that Judge Cannon was supposed to meet to justify her order. The 11^th Circuit found that she was wrong ON ALL FOUR. 

Within 18 hours of the 11^th Circuit decision, Judge Cannon “amended” her previous order, giving the DOJ full authority to use those 100 documents for criminal investigation purposes. 

Special Master Judge Dearie, who is highly respected jurist, was in the unenviable position of sitting in the middle of this ping pong match. He had been dutifully following Judge Cannon’s directives, but when the 11^th Circuit ruling came down, his marching orders changed in an instant. 

Judge Dearie has adopted a no-nonsense approach. He hired another judge to help expedite the review of the materials (at $500/hour with the cost to be paid by Trump). He also gave Trump’s attorneys one week to decide whether Trump would argue, under oath, the various claims he has been promoting on Truth Social and his favorite talk shows. This is the judicial equivalent of “put up or shut up.” The smart money is not on “put up.” 

This would be the end of my post were it not for something I have never seen before. Decisions of appellate courts are often quoted in later cases as a matter of establishing the credibility of those rulings. It is typically months, if not years, before a decision is quoted. 

The 11^th Circuit decision was quoted in, get this, 17 hours! 

Mike Lindell, the My Pillow guy, had his phone taken by the FBI at a Wendy’s drive-through. He argued that he should get it back. Forget for the moment that his legal argument was poorly constructed. What was notable was that the court denied his request, quoting the 11^th Circuit. 

I’ve had cases where the judge has asked whether I had any more recent case authority to support my position. That was probably not an issue here.

The How and Why of New York’s fraud case against Donald Trump

The long-expected civil fraud case against Donald Trump and others was finally filed this week. It is 220 pages of allegations against 16 defendants, covering 11 years of alleged misdeeds, 20 different properties, and 16 different varieties of fraud. To say the complaint is comprehensive is an understatement. 

It is not my purpose here to get into whether or not the case has merit, though there is certainly enough to survive a motion to dismiss. Instead, it makes sense to step back and answer some frequently (and not so frequently) asked questions. 

Why file a civil case rather than a criminal one? There are a number of reasons. First, civil cases are easier to prove. You only need to prevail by a preponderance of the evidence rather than showing guilt beyond a reasonable doubt. Second, a defendant has no fifth amendment rights in a civil case. You may recall that when Trump was subpoenaed to testify, he refused to answer more than 400 times. That refusal may be used by a jury to infer culpability. Third, in a civil case you may get a money judgment. Here, we are looking at the possibility of $250 million. Fourth, in a civil case you can get more than just money. One of the results of this case could prohibit Trump from doing business in the State of New York. Fifth, you can sue someone without stating he is a criminal, something that defendants often decry to show that they are being unjustly prosecuted. Sixth, a state civil case cannot be dismissed with a pardon. Seventh, there is still the possibility that Trump and his family may face criminal charges. However, those cases should be filed by a different party, such as the IRS. 

Why file the case now for conduct going back to 2011? The timing seems a bit suspect. Blame Trump for this one. For many years he has used every possible legal maneuver to keep relevant information from the attorney general, including tax and accounting records. It was only last month that the attorney general was finally able to obtain records from Mazars, one of Trump’s accounting firms. This was the missing piece of the puzzle. 

Why are there so many defendants besides Donald Trump? The answer to this is finger pointing. One common defense to fraud is that “somebody else did it” and that the complaint should be dismissed for that reason. The complaint names all of the major parties who could be that “somebody else.” A second reason to name multiple defendants is that they may have different levels of involvement or defenses to the actions. In many cases, defendants within the same lawsuit may throw others under the bus in order to escape personal liability. 

Why does the alleged fraud cover 11 years? Proving that conduct occurred over multiple years eliminates the defense that this was an inadvertent, one-time “mistake.” 

Why does the alleged fraud include 20 different properties owned by Trump or his organizations? Similar to the multi-year rationale, the attorney general can show that fraud was pervasive and took many forms. 

Why didn’t the attorney general sue Trump for other wrongdoing? First, the fraud complaint is complicated enough without adding in other allegations. Second, lawyers try to not add weak allegations when they already have a strong one. Third, confining the allegations to fraud eliminates the defense that the attorney general is “piling on.” Furthermore, there is no reason why a separate lawsuit covering other matters could not be brought later on. 

If this case goes to trial, when will that happen? Years from now. 

Then what will the impact of the lawsuit be between now and trial? The lawsuit provides sunlight. Much of Trump’s traditional answer to prospective charges is that they are politically motivated or a “witch hunt.” Here, the attorney general has provided chapter and verse of wrongdoing. In addition, prospective lenders are now on actual notice that the Trumps may have engaged in questionable business practices. Lenders tend to be reluctant to provide financing to those with a history of fraud.

The complaint, as lengthy as it is, is only required to show that bare bones of the fraudulent conduct. Much greater and potentially damaging detail will come out as the lawsuit progresses. By the same token, any defenses will also come to light.