The Undoing of Speedy Trial in New York: the 'Ready Rule'

, New York Law Journal

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Thomas M. O'Brien
Thomas M. O'Brien

In May 2010, Kalief Browder, a 16-year-old resident of the Bronx, was accused of committing a robbery. Unable to make $10,000 bail, he was sent to jail at Rikers Island. He spent the next three years there, awaiting his trial. After rejecting a guilty plea offer and time served, he was finally released in 2013. The prosecution simply dropped the charges.1

Jailed three years waiting for a trial? Isn't there a speedy-trial statute in New York?

More than 40 years ago, New York almost passed a speedy-trial law. Although it is common to speak of "speedy-trial," New York's Criminal Procedure Law Section 30.30 is not a "speedy trial" law, as courts have often pointed out, but a "ready rule." That is, a trial does not have to actually start within, say, six months to avoid dismissal of the case. Rather, the prosecution must merely claim to be "ready" for trial within that period.

The dismal reality is that, under the "ready rule" of CPL §30.30, delays in the prosecution of criminal cases are far worse than was the situation when it was enacted in 1972. There is a cause and effect here. The fact that a prosecutor does not have to make a trial happen but can merely state the word "ready" has exacerbated the chronic delays that CPL §30.30 was intended to alleviate.

By the late 1960s, prisoners awaiting trial in New York state courts were bringing 1,000 habeas corpus petitions a year in federal court protesting the length of their pretrial incarceration. In an en banc opinion, the U.S. Court of Appeals in 1971 acknowledged the "serious" jeopardy to constitutional speedy trial rights. The record in the case showed 2,899 prisoners had been detained more than three months(!) awaiting trial.2 Nowadays, pretrial delay measured in years is not uncommon.

Rather than issue a constitutional ruling, the U.S. Court of Appeals for the Second Circuit deferred action because the state judiciary was preparing a plan to mandate a speedy-trial rule governing the length of criminal cases.

Later that year the Administrative Board of the Judicial Conference, which comprised the chief judges of the Court of Appeals and the Appellate Division, issued the speedy-trial rules. In essence, the rules would require dismissal of cases not brought to trial within six months, or release of a defendant if not tried within three months. Periods of delay attributed to the defense would be excluded from the time calculation, and homicide cases were not included.3

The rules were to take effect on May 1, 1972. The District Attorneys Association of New York launched a shrill campaign to block the new rules. A speedy-trial rule would bring about "chaos." It would cause a "legalized jailbreak."4

The prosecutors offered in its place a "ready rule." The prosecution would merely have to be "ready for trial" before a deadline. Whether a trial actually occurred was not relevant.

A critical intervention in favor of the "ready rule" came from Gov. Nelson Rockefeller, who offered a speedy-trial bill that rejected the judiciary's plan and adopted the District Attorneys' plan. In that era, Rockefeller was contemplating a run for the 1976 Republican presidential nomination with a more tough-on-crime conservative persona.5 (The draconian "Rockefeller drug laws" were enacted in 1973.)

What's being said

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    Great article! It is a perpetual fraud when every prosecutor in the state of New York at arraignment is announcing "ready for trial." If compliance with the discovery rule were made a precondition to a statement of readiness, cases would be disposed of much quicker. In most cases, it would be ineffective assistance of counsel to plead a client to a crime without first perusing discovery. So currently the defendant must choose between a speedy trial and effective assistance of counsel.

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