From: Osiris Subject: Re: Kevin Mitnick Date: 1997/03/31 Message-ID: <333FBDEC.3AC5@pacificnet.net> X-Deja-AN: 229886124 References: <5fa8j7$rvs@news5.snfc21.pacbell.net> <5fhton$6ro@nnrp1.news.primenet.com> <332395C1.1013@gcnet.com> <333450c4.19408640@news.mindspring.com> <3336251e.2451656@news.myna.com> <3337C6A2.4D43@hotmail.com> Organization: Abode of the Dead Reply-To: osiris@pacificnet.net Newsgroups: alt.fan.kevin-mitnick,alt.2600 > Regardless of what he did, it is unjust that he has been in prison for > two years without a trial. R Actually, that is incorrect. First, though the right a speedy trial automatically attaches at initiation of a criminal proceeding (and the remedy for failure to provide such speedy trial is dismissal), it does not follow that the two years is unjust. However, before treating that matter directly, I should relate this: he has not been in jail for two years without trial. Separate charges were filed in separate jurisdictions for separate offenses. Though there *is* a procedure whereby a prisoner can force a speedy trial action (typically forcing the foriegn jurisdiciton to bring the case within, say, 90 days) this is only for inmates already sentenced on the first, controlling case. (In the State of California, for example, this is referred to as a "1381" action, or Demand for Trial.) Because Mitnik was moved on to California to face additional charges *immediately following his plea bargain being accepted back east,* that in itself gave no time for any such demand. In this respect, one could viably argue that his right to a speedy trial in the California charges did not attach until his sentence in NC. (And therefore, the right would not have been violated even if he voiced it.) However... Application of the speedy trial clause requires a "balancing test," e.g., evaluation of behavior of both prosecution and defense. Things in this category include the reason for the delay, who asked for it, whether the defendant asserted his right to speedy trial and so forth. [See Barker v. Wingo, 407 U.S. 514 (1972)] In the instant case (as is often the case), it is likely (though I cannot say so authoritatively) that Mitnik has waived time to prepare his case. A waiver of time can be submitted at any time after the initial preliminary hearing (or if the venue provides for no such preliminary hearing, after the arraignment.) Even so, no matter who delays the trial, the mere delay of it for procedural or tactical reasons does not violate the clause. In one case, for example, two defendants were arrested for murder. It was deemed by one a benficial tactical move to allow the other to go on trial while he (the first defendant) waived time. This resulted in a conviction of the one who did not waive time. However, the convicted defendant then went through a series of appeals. Of some twelve court apperances at which the matter was discussed (over a period of four years), the defendant who was out on bail raised (and wished to assert his right) only twice. Later, he was brought to trial and convicted. His appeal rested solely upon the speedy trial issue. The appeal was denied. In most cases where the defendant has *willfully* and deliberately delayed the trial (as in doing so for a tactical advantage,) the defendant is deemed to have (unless having expressed otherwise) waived their speedy trial right. [See Strunk v. US, 412 U.S. 434 (1973)] Though, it is certainly true that where neither parties waive time, the initiation of at least pre-trial proceedings should occur within a period of eight months. If these proceedings do not ensue, and there is no good cause shown for the delay, the case is then generally dismissed. Various states have modeled their statutes after the Federal Speedy Trial Act [18 U.S.C. Section 3161] and wherever this has been done, specific time liits are generally imposed. In essence, the mere fact that Mitnik is still imprisoned does not violate any of his rights. The average American assumes (erroenously) that the Constitution is something set in stone and that almost any situation appearing to apply can be dispensed with by invoking the document. This is patently false. Instead, the document has been used by the Supreme Court as a guiding light into an otherwise dark future. Interpretation of the Constitution and not what it says upon its face is where the law really lies, and that law is - despite what average citizens may think - a fairly equitable one. In other words, devices that call Constitutional technicalities into play rarely are effective and can rarely produce a "fatal" error requiring dismissal. Personally, I think that the Kevin Poulsen case was far more interesting in this regard, due to the time taken to come to an agreement between the parties. Mitnik, however, was at least lucky enough to have avoided obtaining (or attempting to obtain) any defense-related materials that might provide incentive for protracted negotiations between his counsel and the government.