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Court wrangles with question of which pretrial motions toll the Speedy Trial clock?

WASHINGTON – The Supreme Court wrangled Tuesday with the question of just what kind of pretrial motions stop the clock under the Speedy Trial Act, seeking to resolve a split in the federal circuits.

Everywhere except the 6th U.S. Circuit, that clock stops running whenever a motion is filed and resumes only when the motion is resolved.

The 6th Circuit, however, held that pretrial motions have that effect only if they “actually cause a delay, or the expectation of delay, of trial.” It reversed the drug- and gun-related convictions and 33-month sentence of a Michigan man, Jason Lewis Tinklenberg.

At oral arguments, Assistant Solicitor General Matthew D. Roberts called the 6th Circuit’s method “unworkable,” saying it would be “difficult or impossible” to determine whether a motion would cause a delay at the time it was filed.

Justice Ruth Bader Ginsburg picked up that line in questioning Tinklenberg’s lawyer.

“A trial judge that has had a lot of criminal cases knows that there’s going to be some motions as you get closer to trial,” Ginsburg said, “but how would we know whether the judge took into account the likelihood of motions in setting the trial date or didn’t?”

“Parties often stipulate or are asked to stipulate by the court,” said Jeffrey L. Fisher, partner in the San Francisco office of Davis Wright Tremaine and co-director of Stanford Law School’s Supreme Court Litigation Clinic. “Common sense goes a long way in this scenario.”

The language of the Speedy Trial Act was “straightforward,” Fisher said.

“The key words … are ‘delay resulting from,’ and I think the ordinary meaning, in fact, the only meaning, of ‘delay’ is a hindrance to progress or a postponement,” he said.

Several justices also wondered about the effect of changes that were made to Federal Rule of Criminal Procedure 45 in 2009. The changes, which standardized the counting of weekends and holidays when calculating deadlines, would have worked to Tinklenberg’s benefit.

“His case [was] still on appeal” in 2009, Justice Stephen Breyer said. “Why shouldn’t he get the advantage of the new rule?”

Justice Antonin Scalia suggested that “the consequence of what Justice Breyer proposes is to set free someone who has been duly convicted of a crime.”

Fisher pointed out that the court need not address the change in Rule 45 to decide Tinklenberg’s case.

“But then …we would have to wait for another case to decide this issue,” Ginsburg said.

“And I can’t stand the suspense,” said Justice Anthony Kennedy.

“I’ll just leave it to this court’s best discretion how it wants to handle that issue,” Fisher said.

The case is U.S. v. Tinklenberg, 09-1498.

Lawyers USA is a sister publication of The Daily Record.