Conditions of Continuances Over the Statutory Limits

Zedner v. United States

Zender unsuccessfully tried, seven times, to open bank accounts with an obviously fraudulent $10 million dollar savings bond. When Zender requested a second continuance the judge became concerned about the statutory requirement that (except in certain cases) a defendant be tried within 70 days of his first appearance and that if the trial takes place after that 70 day period, and the defense does not move to dismiss, that defendant is deemed to have waived his statutory right. To ease these concerns the defense waived its statutory right to a speedy trial “for all time.” Four years, and an interesting story, later the defendant was found to be incompetent. This case addresses whether the defendant’s waiver was valid, whether the judge’s failure to make findings to show that the period of delay after the 70 day requirement, and before the defendant’s next appearance (91 days later), in conformity with the statute, was a harmless error.

The Act lists categories of delay that are not counted in the Act’s deadline and because the Act does not contain an exception for informed waivers the defense must move for a continuance on the basis of the numerous present exemptions. The Court bases this reading on the fact that the absence of a waiver provision was deliberate and the fact that the law was enacted not just to protect personal rights to a speedy trial, but public interests in swift and effective justice. It even goes so far to require a judge to consider the public interest along with the defendant’s in granting a continuance. This reading is supported by the legislative history. The Court then argues that the Act’s provision for retrospective waivers does not imply the ability to prospectively waive the right

Next the Court addresses the rule of judicial estoppel: “Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” (Davis v. Wakelee, 1895). Three factors of this test (there is no precise test because the rule is “equitable”) are whether the two positions taken are inconsistent, whether the court was persuaded to accept the previous position, and whether this would give one party an unfair advantage.

If the defense position was that it promised not to move to dismiss, estoppel would not be appropriate because this would run contrary to the rule set out above that there can be no prospective waivers. If the defense position was that it mistakenly relied on a prospective waiver judicial estoppel would not apply because it was not the defense that convinced the court to waive the right, but the other way around. Finally, if the defense position was simply that it required more time to investigate this position is not inconsistent with the one it currently takes.

The Government also argues that the absent express finding that the ends of justice require a continuance can be supplied retrospectively on remand. The Court rejects the argument because at the very least a Court must make those findings before ruling on a motion to dismiss. Finally, the Government argues that this error was harmless, especially because the Act generally provides for ends-of-justice continuances based on the request of the defense, and being harmless does not subject the case to relitigation. The Court rejects this argument in the face of the Act’s “unequivocal” language (the court “shall…”) and because an ends-of-justice harmless-error rule is extremely open ended and does not square with the Act’s attempt to limit the extent of the ends-of-justice rule.

Justice Scalia writes separately to warn against the use of legislative history, and to re-assert that the only law that exists is positive statutory law (as opposed to congressional intent). “…If legislative history is relevant when it confirms the plain meaning of the statutory text, it should also be relevant when it contradicts the plain meaning, thus rendering what is plain ambiguous.”