“The Bail Reform Law does more than change the way in which pretrial release decisions are made. It also includes provisions to ensure that persons who are detained pending trial are indicted and tried swiftly. This is to be achieved in part by imposing specific deadlines for indictment and trial. To meet these deadlines -and thus avoid the prospect of having dangerous defendants released- it will be necessary for police to complete reports more expeditiously, and for prosecutors to screen, prepare, and present cases for indictment and trial more expeditiously.”
Since speedy trial rights are designed principally to protect defendants, the legislation that is finalized in January of 2017 will likely provide that a trial can be delayed only upon the joint request of a prosecutor and defense attorney. Since the burden in presenting a case is on the prosecution, many prosecutors will look for ways to leverage this request from the defense. A typical scenario involves the prosecution withholding reports and other discovery that they are required to disclose. The appropriate response is for the defense attorney to ask the court to impose sanctions against the prosecutor. Since far too many judges are beholden to the county prosecutors’ offices, this almost never occurs. Thus, the defense is put in the position of either representing that they are ready to proceed to trial without all of the materials that they need to effectively prepare for trial, or, to make a joint request to delay the trial pending receipt of additional discovery. If this speedy trial legislation is to have any teeth to it, there should be a clear mandate for sanctions against the prosecutor for discovery delays. However, there almost certainly will not be since legislators tend to be aligned with prosecutors’ offices just as judges are beholden to them. Note that judges will often suggest as a sanction that if discovery is not turned over by a certain date then they prosecutor will be barred from introducing it at trial. This is a hollow and often counter-productive sanction as it is usually the materials that are helpful to the defense that are withheld by the prosecution. Therefore, barring the introduction of these materials only helps the prosecutor and works as more of a sanction against the defense.
