On November 15, 2017, the Second Circuit reversed by summary order the conviction of Joseph Tigano III on drug charges, determining that he had been deprived of his Sixth Amendment right to a speedy trial and indicating that an opinion would follow. This week, the court issued its opinion, detailing the “exceptional facts” that had culminated in a nearly seven-year lapse between Mr. Tigano’s arrest and his trial, despite his repeated invocation of his right to a speedy trial. Indeed, the Court stated that the pretrial detention here “appears to be the longest ever experienced by a defendant in a speedy trial case in the Second Circuit.” The Court held that that length of time, combined with other relevant factors, compelled the conclusion that his Sixth Amendment rights had been violated. Judge Pooler authored the opinion, and was joined by Judge Winter and Judge Walker.
Tigano’s Arrest and Seven-Year Wait for Trial
As the Court emphasized in its decision, the seven-year interregnum between Tigano’s arrest and his trial was the cumulative result of several independent sources of delay. But the Court particularly emphasized the district court’s decision, on three separate occasions, to respond to Tigano’s request for a speedy trial by ordering a competency examination. All three examinations led to the conclusion that he was competent, and the court deemed it “truly remarkable” that a defendant would be subject to a competency examination solely for asserting his constitutional rights.
Mr. Tigano and his father, Joseph Tigano Sr., were both arrested in 2008 after police discovered that they were running a marijuana-growing operation out of their home. The younger Mr. Tigano was charged with four drug-related counts and two additional counts arising out of weapons discovered in the home, and was detained pending trial, never to be released on bail. In October 2008, he entered a not guilty plea in the Western District of New York and made an explicit statement—the first of many, as it turned out—that he wished to proceed quickly to trial.
At the first status conference, which did not occur until April 2009, he again informed Magistrate Judge Scott that he wished to exercise his right to a speedy trial. In response to that request, his defense attorney requested, and Magistrate Judge Scott ordered, a competency examination to determine whether he was fit to stand trial. Four months later, that examination led to the determination that he was competent.
After that examination, additional delays ensued due to (1) Tigano’s conflicts with his lawyer, who expressed consternation over his desire to proceed to trial; (2) requests for extensions of time by his father, whose case had not been severed from the younger Tigano’s and who, unlike his son, was out on bail; and (3) “small neglects” such as slow resolution of two suppression motions. But the most striking source of delay was that, approximately a year after the court ordered the first competency evaluation, it ordered yet another one—again prompted by Tigano’s invocation of his speedy trial rights. These delays cumulatively brought Tigano to the spring of 2012, four years after his arrest, with no trial.
At that point, the government indicated its intention to engage in plea negotiations with Tigano, but because of the AUSA’s involvement in a major criminal trial, the government did not present Tigano with a plea offer for nearly a year. Although Tigano’s father accepted a plea deal, Tigano balked at the offer, asserting, as he had for five years, that he wished to proceed to trial. Trial was initially scheduled for December 2013, but the district court (Judge Skretny) adjourned it to give Tigano time to consider a plea, explaining that “You spent some time in jail, I don’t think waiting until January is going to really materially affect anything.”
In January, however, Tigano’s attorney made an application for a third competency evaluation, citing his refusal to accept a plea deal. Various administrative complications attended that competency evaluation, such that it was not resolved and accepted by the court until July 2014. Like the two previous evaluations, it concluded that Tigano was competent to stand trial.
By the time the parties convened for a pre-trial conference in fall 2014, Judge Skretny’s retirement was on the horizon, so he referred the case to Judge Elizabeth Wolford. In May 2015, Tigano finally got the jury trial he had been requesting for nearly seven years, and was convicted on five of the six counts with which he was charged.
The Sixth Amendment Analysis
In Barker v. Wingo, the Supreme Court held that the question whether a defendant’s speedy trial right has been violated must be resolved through a “difficult and sensitive balancing process,” which takes account of four principal factors: “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 407 U.S. 514, 516 (1972). The Second Circuit concluded that all four of these factors favored a conclusion that Tigano’s rights had been violated.
First, as to length of delay, the Court noted that the seven-year lapse between Tigano’s arrest and his trial was, to its knowledge, “the longest delay recorded in the Sixth Amendment case law of our Circuit.” This factor, it concluded, therefore “weigh[ed] heavily against the government.”
Second, as to the reasons for the delay, the court emphasized that much of the delay was attributable to the district court’s ordering of three separate competency evaluations in response to Tigano’s assertion of his constitutional rights. The Court concluded that this was “error,” as refusal to accept a plea deal and invocation of a speedy right to trial did not constitute evidence of incompetence. Accordingly, it counted this factor against the government as well. It also counted against the government the administrative delays—such as docket congestion and the government’s slowness in presenting a plea offer—that had compounded the wait, explaining that the government bore “ultimate responsibility” for even these “neutral” delays.
Third, as to the defendant’s assertion of his right, the Court found the question easy: it observed that “Tigano adamantly, consistently, and explicitly raised his speedy trial rights at nearly every appearance he made before the court.” Though it noted that that desire was not always reflected by the choices made by Tigano’s attorney, it concluded that “a defendant’s assertion of his own right to a speedy trial—even though ignored or contravened by his counsel—is the relevant fact for purposes of [the] Sixth Amendment analysis.”
Finally, as to prejudice to the defendant, the Court held that Tigano’s seven years of pretrial incarceration was “egregiously oppressive,” and that he experienced “anxiety and concern” as a result of the delay in his trial. Though it recognized that there was no indication that Tigano’s actual defense was impaired by the delay—one form of prejudice that is considered in this analysis—it concluded that the excessive incarceration and attendant uncertainty was reason enough to count this factor against the government.
Balancing these four factors led the Court to the “inescapable conclusion” that Tigano’s rights under the Sixth Amendment were violated. The only possible remedy was dismissal with prejudice. As noted, the Court did not make Tigano wait for this thorough opinion to issue, but released him shortly after oral argument.
Perhaps the most crucial point in the Court’s pointed opinion is that “the right to a speedy trial belongs to a defendant,” and that the defendant, therefore, must be permitted to exercise it. As the court emphasized, the repeated competency examinations appear to have been borne out of a sincere desire to protect the defendant’s rights to a fair trial, but they had just the opposite effect, an outcome that was all the more egregious given his protestations.
The facts described in the opinion are worth a read; they are as shocking as the Court believed them to be—“exceptional in nearly every meaningful respect within the context of a Sixth Amendment speedy trial analysis. . . an extreme outlier even among the severe examples found within Sixth Amendment case law.” Beyond the doctrinal issues presented by the appeal, there is also a larger point. When we think of “American justice,” guaranteed by the Bill of Rights to our Constitution, we cannot imagine that someone should have to go through the ordeal that Tigano went through.
Tigano’s court-appointed attorney, Gary Stein, a former chief appellate attorney in the U.S. Attorney’s Office for the Southern District of New York, aptly explained that “it was shocking what happened here — how the system showed a flagrant disregard to his right to a speedy trial . . . . There was no reason why he should have endured seven years of pretrial incarceration for a one-week trial. Things like this aren’t supposed to happen.” Until the appeal, the system did not work. It is fortunate that Tigano received such outstanding representation on appeal and that the Court recognized this case as one requiring the dramatic remedy ordered here. One can only hope that this will not recur.