No Objection Flashcards
So, you can just lie in wait, say nothing, trick the court into exceeding the speedy trial clock, and then get a dismissal out of it. We call that sandbagging, and we don’t allow it in our court.
I understand your honor’s frustration, and yes, best practice would have been for defense counsel to identify this issue earlier. But the reason why the STA was passed was to ensure that courts were applying these mandatory deadlines in all cases–not just where defendants were objecting. And so it is just absolutely clear, it is black letter law, that a failure to object earlier does not waive or forfeit one of these claims
But Olsen repeatedly relied on the defendant’s failure to object.
That’s correct, your honor, failureto object is among the Olsen factors. But in entering the CJOs, the Chief Judges did not apply the Olsen factors. The CJOs excluded time in every case, no matter the facts and circumstances, including whether the defendant objected. And this Court may not independently review the Olsen factors, including a failure to object, for the first time on appeal. That said, the court will have an opportunity to consider the failure to object earlier in deciding whether to exclude time with or without prejudice.
Wasn’t your client largely responsible for the delays? He asked for an A-File, but never filed a D-motion. Then, he asked for more time to file some other kind of motion. Then he ended up filing this third 1326-is-racist motion. The parties had to hold an evidentiary hearing and everything.
As an initial matter, that kind of consideration is taken into account at the remedy stage but is not a basis for denying a motion to dismiss after 70 non-excludable days have passed. Furthermore, Mr. Orozco-Barron contributed very little to delays. During the relevant period, the delays solely arose from the DJ granting sua sponte continuances and the government delaying in producing discovery. And when Mr. Orozco-Barron did file motions later on, those motions were fully briefed over the course of about three and a half months, with a subsequent 1-day evidentiary hearing.
But if this incredible miscarriage of justice was taking place day in and day out, why didn’t trial counsel object?
Your honor is correct that defense counsel did not object before filing his motion, but that does not affect this appeal for a couple of reasons. First off, it is black letter law that defendants cannot waive or forfeit speedy trial rights. Second, this Court can only affirm based on the real reasons why the CJOs were entered. And the CJOs do not take into account whether a defendant has objected or not. The CJOs excluded time regardless of whether the defendant had objected.
