Today the Second Circuit ordered that a defendant’s indictment be dismissed with prejudice because his 6th Amendment speedy trial right was violated. The opinion in United States v. Tigano, 15-3073 (2d Cir. 2018) (Winter, Walker, Pooler), available here, is a case study in “poor trial management,” slip op at 5, and the improper use of competency hearings. (Like the Circuit’s other recent speedy trial decision, Tigano arises out of the Western District of New York.) The opinion also raises fascinating questions about the tensions that can arise between the imperatives to respect a defendant’s autonomy and act in what a lawyer believes to be the defendant’s strategic interest. In doing so, the opinion offers cautionary lessons for the government and defense counsel alike.
Mr. Tigano and his father were indicted in July 2008 as co-defendants on drug and weapons charges. He was then subjected to nearly seven years of pretrial incarceration—“the longest ever experienced by a defendant in a speedy trial case in the Second Circuit.” Slip op. at 4. His father pled guilty in 2013, but Mr. Tigano refused to accept a plea and was convicted in May 2015. In the meantime, Mr. Tigano frequently and vociferously invoked his speedy trial rights.
Much of the delay resulted from the district court ordering three separate competency hearings over the course of five years—each yielding the conclusion that Mr. Tigano was competent to stand trial. The primary reason these competency hearings were ordered? Because Mr. Tigano invoked his speedy trial rights (in the case of the first two hearings) and refused a guilty plea (in the case of the third). Unsurprisingly, Mr. Tigano’s relationships with his attorneys were strained, and he sporadically litigated his case pro se with standby counsel.
Applying the four-factor Barker v. Wingo test, the panel determined that the length of Mr. Tigano’s delay was extraordinary (the first Barker factor) and that Mr. Tigano consistently asserted his speedy trial right (the third factor). As to the second factor, the panel counted the reasons for delay against the government. Interestingly, these reasons included the defense attorneys’ requests for delays, over the strong objection of their client, “in the hopes of a favorable guilty plea.” Id. at 24; see also id. at 32-33. Among the other reasons for delay were (1) the “needlessly repetitive and dilatory competency evaluations,” (2) multiple and egregious “administrative delays,” (3) “the government’s failure for months to produce a written plea offer . . . and its insistence on consolidating the case and plea bargaining with Tigano’s father,” (4) “the district court’s congested docket,” and (5) “the use of multiple magistrate judges.” Finally, as to the fourth Barker factor, the panel determined that Mr. Tigano suffered severe prejudice in the form of “oppressive pretrial incarceration,” and unwarranted “anxiety and concern” about his prosecution.
Tigano is a fascinating case, raising the type of concerns that typically arise in the Faretta context concerning the tension between a defendant’s dignity interests and an attorney’s duty to zealously represent her client. (Unlike Mr. Tigano’s prosecution, the opinion is timely, coming on the heels of oral argument in McCoy v. Louisiana.) This much is clear, however: if the circumstances of a case put the government or the district court on notice that a defendant’s attorney is unethically delaying a case over the client’s objection, they will assume the risk of ignoring the defendant’s speedy trial requests.