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Man Incarcerated for 6 Years Without a Trial Because He Demanded a Speedy Trial

What the 2nd Circuit’s opinion in U.S. v. Tigano reveals about the state of our criminal justice system

Phartisan / DreamstimePhartisan / DreamstimeFederal authorities arrested Joseph Tigano III in 2008 and charged him with running a marijuana-growing operation. Tigano entered a plea of not guilty and insisted that his case move quickly to trial. Instead he languished in pretrial detention—jail—for nearly seven years before he finally appeared before a jury, which convicted him in 2015. In an opinion issued this week, the U.S. Court of Appeals for the 2nd Circuit dismissed Tigano's indictment "with prejudice" on the grounds that his "oppressive period of pretrial incarceration" violated his constitutional right to a speedy trial under the Sixth Amendment.

The criminal justice system's treatment of Tigano is appalling. During his nearly seven-year pretrial incarceration, Tigano loudly and repeatedly invoked his Sixth Amendment right to a speedy trial. Because Tigano kept bringing up the Sixth Amendment, he was forced to undergo three separate court-ordered examinations to determine whether he was competent to be tried. According to one of the prosecutors involved in the case, "Mr. Tigano III had been sort of demanding his speedy trial, which is part of the prompting for the Court sending him out for this evaluation." Tigano passed all three exams with flying colors.

The 2nd Circuit was correct to toss out Tigano's conviction. The framers and ratifiers of the Constitution viewed trial by jury as a fundamental right. Article III, Section 2 of the Constitution says "the Trial of all Crimes, except in cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed." Because that language was not strong enough to satisfy the Anti-Federalists, the Sixth Amendment was added to the Constitution as an extra safeguard in 1791. "In all criminal prosecutions," it reads, "the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." In a 1789 letter to Thomas Paine, Thomas Jefferson expressed the opinion of many in the founding generation when he praised the right to trial by jury as "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

It was this bedrock constitutional right that Joseph Tigano III invoked again and again during his pretrial incarceration. And it was because Tigano kept invoking this right that he was made to suffer the punishment—there is no other word for it—of being left to rot in a cell without trial for 6 years, 9 months, and 26 days. As the 2nd Circuit observed, Tigano's detention "appears to be the longest ever experienced by a defendant in a speedy trial case in the Second Circuit." If that doesn't violate the Sixth Amendment, what does?

Tigano's ordeal illuminates a much bigger problem. Consider what Assistant U.S. Attorney Thomas Duszkiewicz had to say about the third competency examination that Tigano was forced to undergo. It was sparked "not necessarily [by] the competency question," Duszkiewicz said, "but [by] whether there is some other psychological problem that's going to prevent [Tigano] from understanding the difference between what he potentially looks at as far as a conviction as well as what's being offered by way of this plea."

Translation: Federal prosecutors piled on the charges expecting Tigano to plead guilty to a lesser offense and save everybody the trouble of going to trial. The prosecutors also let it be known that if Tigano rejected their deal, they would throw the book at him and he would forfeit his shot at "what's being offered by way of this plea." In short, sacrifice your Sixth Amendment rights and you'll do less time.

That coercive approach is standard operating procedure among prosecutors in criminal cases. According to the Justice Department, 97 percent of federal criminal convictions result from guilty pleas. At the state level, the figure is roughly 94 percent. In other words, only a tiny number of criminal suspects ever go to trial. For all practical purposes, the Sixth Amendment right "to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed," has been largely abolished.

The criminal justice system has become "almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight," Judge Jed S. Rakoff wrote in 2014. "The outcome is very largely determined by the prosecutor alone." Rakoff's description of the phenomenom is worth quoting at length:

[W]hat really puts the prosecutor in the driver's seat is the fact that he—because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought—can effectively dictate the sentence by how he publicly describes the offense. For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.

Now recall the words of Assistant U.S. Attorney Duszkiewicz in the Tigano case. He said the judge ordered the third competency exam to make sure that Tigano understood "the difference between what he potentially looks at as far as a conviction as well as what's being offered by way of this plea." Put more bluntly: In a system that has gutted the right to trial by jury and given vast and virtually unaccountable power to prosecutors, only the "crazy" would dare to exercise their Sixth Amendment rights.

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  • sarcasmic||

    Because Tigano kept bringing up the Sixth Amendment, he was forced to undergo three separate court-ordered examinations to determine whether he was competent to be tried.

    Let me get this straight. Because he invoked the Constitution he was forced to get his head examined?

  • DaveSs||

    Only crazy people believe the Constitution means what it plainly says.

  • Juice||

    It's old and outdated and legalized slavery. (An argument actually made by one of the millennials I argued with.)

  • BYODB||

    Yeah, but when you ask specifically how it's 'outdated' you'll find none of them have any actual arguments to back that up.

    It would be akin to saying that Socrates or Plato are 'outdated' because they lived so long ago. These types abjectly fail to realize that 'old things' are still very relevant today. Of course, most of the people who make these types of arguments to me follow post-modernism as a philosophical path so it's hardly surprising that they're idiots.

    If you're unfamiliar with post-modernist philosophy:

    Postmodern philosophy is a philosophical direction which is critical of the foundational assumptions and universalizing tendency of Western philosophy. It emphasizes the importance of power relationships, personalization and discourse in the "construction" of truth and world views.

    It would be more accurate to call it 'post-rational' if you ask me.

  • Arcxjo||

    "Yeah, but when you ask specifically how it's 'outdated' you'll find none of them have any actual arguments to back that up."

    The Electoral College, the individual right to keep and bear arms, freedom of association, no protections for "hate speech" laws, federalism, trial by jury ...

  • operagost||

    And their argument against each of those is, "it's old."

  • Quixote||

    It doesn't really matter anyway, because everyone knows that when we have to get around the "constitution," we know how to do it. I keep hearing people talking about this "free speech" nonsense, but the "liberals" who spout off about such outrageous rubbish are now only a small minority, so it's only a matter of time before we take back our great nation. Who here would dare, for example, to defend the inappropriate views expressed in this sort of "editorial":

    https://forward.com/opinion/385050/

  • Mark22||

    The Constitution was written by privileged white racists and successful businesmen! Why would you listen to them???

    You should be reading the Communist Manifesto instead! Political ideology should be created by tolerant men coming up from the working class, who fortune has burdened, totally without their fault, with illegitimate children, household slaves, professional failures, meanness, drug addiction, alcoholism, and poor personal hygiene! Those are the kinds of men we want to take as role models!

    /sarc

  • ImanAzol||

    But how long will you be in jail?

  • Untermensch den 2||

    Sort of confirms what Thomas Szasz and Michel Foucault said about the carceral system and madness.

  • Verbum Vincet||

    Yes, that's exactly it! The Soviets and East Germans had a term for this: the 'psychiatric reprisal.' It often ended in the dissident being diagnosed with 'sluggish schizophrenia' and falsely institutionalized until they came to the belated realization that the state was always right and always in charge. Both could be seen as 'gaslighting' tactics.

    I strongly urge ALL Americans learn these terms, because you'll be hearing about them with increasing frequency. They are rapidly becoming standard tools of our police state apparatus, primarily because they leave no visible marks and are quasi-legal! By the time anyone finds out about such abuses, they've already had the desired effect.

    Though undoubtedly evil, the folks in charge aren't stupid. They've examined the methods of the Stasi, and adopted what works. Tying people to the rack doesn't really fly any more (although 'black sites' are another story.) Besides, most Americans don't have the patience, willpower, money and legal team to take on the monolith. They know this just as they know 'justice' is nebulous to the fickle masses and ultimately disposable, but retaining a credible veneer of justice is wholly necessary - at least until the troublemakers are sorted out!

  • Mark22||

    The Soviets and East Germans had a term for this: the 'psychiatric reprisal.' It often ended in the dissident being diagnosed with 'sluggish schizophrenia' and falsely institutionalized until they came to the belated realization that the state was always right and always in charge.

    If the scientific consensus is that X is true/valid/desirable, then the obvious conclusion is that you must be insane if you doubt X, and hence that a caring, compassionate society should deliver you into the loving hands of mental health professionals in order to cure you of your delusions.

    Substitute "socialism", "communism", "Lysenkoism", "conversion therapy", "climate change", "eugenics", "mobility of the international working class", "critical race theory", etc. as you like.

  • Libertymike||

    Judge Rakoff's buck passing does not impress. He writes as if the brethren have not been co-conspirators and co-producers and primary script writers of the production.

  • Quixote||

    What Damon might not understand is that having a "speedy" trial is pointless to begin with, because we've already taken care of the "right to a fair trial" nonsense with the "harmless error" doctrine, pursuant to which appellate judges get to decide what "reasonable jurors" would have decided if there had been a fair trial. In other words, appellate judges today, in the Second Circuit as elsewhere, routinely substitute themselves for juries and decide cases retroactively on the basis of whatever appropriately contrived reasons they can come up with. For a good example, see the documentation of America's leading criminal "satire" case at:

    https://raphaelgolbtrial.wordpress.com/

    So you might ask, why did the Second Circuit throw out the indictment in this "speedy trial" case, if having a speedy trial is basically pointless to begin with? The answer is very simple: lofty proclamations of the sort are sometimes necessary, so we can preserve a semblance of "constitutional order" and maintain public confidence in our criminal justice system. Every judge knows that all sorts of little abuses are necessary to keep the system working, but obviously it's better if people don't think too much about such minor details.

  • Marcus Aurelius||

    But who actually thinks about these things? Even if they haven't overturned, it might make the news for a night, or page 20 of the local paper, and then back to business as usual. No one cares, and those who do have small voices.

  • Quixote||

    True enough. But by that token, even if we ate children in our courtrooms it would make no difference. So despite the information overload, it's important for our nation's judges to be shown as respectable believers in justice, even if just for a night. Things just get measured in a different way today. Can anyone here remember what the fake media were saying about our great Leader three weeks ago? We try and get good headlines when we can, and count on people to quickly forget the bad ones.

  • ace_m82||

    The Lord is a God who avenges.
    O God who avenges, shine forth.
    Rise up, Judge of the earth;
    pay back to the proud what they deserve.
    How long, Lord, will the wicked,
    how long will the wicked be jubilant?
    They pour out arrogant words;
    all the evildoers are full of boasting.
    They crush your people, Lord;
    they oppress your inheritance.
    They slay the widow and the foreigner;
    they murder the fatherless.
    They say, "The Lord does not see;
    the God of Jacob takes no notice."
    Take notice, you senseless ones among the people;
    you fools, when will you become wise?
    Does he who fashioned the ear not hear?
    Does he who formed the eye not see?
    Does he who disciplines nations not punish?
    Does he who teaches mankind lack knowledge?
    The Lord knows all human plans;
    he knows that they are futile.
    ...
    Judgment will again be founded on righteousness,
    and all the upright in heart will follow it.
    Who will rise up for me against the wicked?
    Who will take a stand for me against evildoers?
    ...
    Can a corrupt throne be allied with you—
    a throne that brings on misery by its decrees?
    The wicked band together against the righteous
    and condemn the innocent to death.
    But the Lord has become my fortress,
    and my God the rock in whom I take refuge.
    He will repay them for their sins
    and destroy them for their wickedness;
    the Lord our God will destroy them.
    (Most of Psalm 94)

  • Don't look at me.||

    You know that most people skip right over this sort of rant, right?

  • ace_m82||

    That's OK, I just want people who care enough to know that even in Scripture people struggled with this kind of evil and injustice.

    Injustice doesn't disprove God. He will bring the oppressors to justice sooner or later.

    Lastly, I get really frustrated about these injustices and this is a therapeutic way to remind me that it's not my job (or our job) to right every wrong in the world.

  • ImanAzol||

    Those who care enough to know already know. Those who read actual history already know without badly written mythology.

  • Tionico||

    but God's Word is not "badly written mythology" n the unlikely event that is what you are implying.

  • operagost||

    Oh, s/he means it. The default "argument" of an internet atheist is the appeal to ridicule.

  • RoyMo||

    Well maybe that is the point, the proud and wicked ignore the the words of the righteous, but the lord will judge them. A nice sentiment, how well it worked for the psalm writer is another matter.

    Either that or this problem is older than than Rome.

  • Tionico||

    that plalmist wrote a few centuries before Rome.....

  • Scarecrow Repair & Chippering||

    In my redress system, they could pile on all the charges they wanted; but all such charges would be a bet of sorts. The trial would be over all charges. They could not drop some. And if they could not prove all of them, they would rebound on the prosecutors. Personally, I would want that rebound be automatic: if you tried to convict a guy of 30 years worth of imprisonment and only got 5, you got the 25 yourself. But I'd be satisfied with the jury being able to decide that some charges were so egregious as to deserve rebound.

    If that's too strong, if prosecutors should not go to jail for failed charges, there still needs to be some accountability for failed charges. Maybe all the failed charges should be deducted from the sentence; and if there's a negative balance, then the prosecutor goes to jail for that amount? Charge 30, win 15, balance is zero, no conviction. Charge 30, win 25, balance is 20, convicted. Charge 30, win 5, balance is -25, prosecutor is automatically convicted of framing the victim and serves 25 years.

  • amishanarchist||

    That would empty the prisons in no time. But to add to that, make it so that all non-violent crimes over a 1 year sentence would have to be a white-collar crime.

  • Tionico||

    this comports rather weill with the biblical prescription for bearing false witness against someone. It is quite real that the prosecutor swears to the court that Chalrie Brown did indeed commit the following laundry list of offenses: 1, 2, 3, 4, 5, and 6. In the likely event (in the present status quo) he only proves 1, 3, 4, and 5, his charges of 2 and 6 are false.
    SINCE he bore false witness against the accused on 2 and 6, the lying prosecutor now must bear the punishment he sought for Charlie on counts 2 and 4. Charlie is still guilty of the other four, and must serve his sentence.

    What THIS would do would be to reduce or eliminate the docket inflation with all manner of extras, stacking the deck as it were to promote the plea bargain. If Charlie was caught with the murder pistol in his hand, at thescene of the crime, the expended rounds proven to have been fired from THAT barrel, AND it is known that Charlie is a previously convicted felon, he should be charged only with the murder and felon in possession. If they're not sure the handgun was stolen, or that he lied to pass the BGC to buy it, or that he beat the deceaced prior to killing him, then don't lay those charges to pad the docket. ONLY prosecute the certain-to-convict elements. That only serves to pad the statistics, anyway, and does naught to increase the srevice of justice. The prosecutors would necessarily ONLY charge the certain to be proven crimes.

  • Mark22||

    this comports rather weill with the biblical prescription for bearing false witness against someone.

    The Biblical prescription has a core of a good idea in it: there should be a cost for both bearing false witness and bad prosecutions. But setting that cost at equal to the punishment is as arbitrary as setting it at zero.

    It would be better to have both costs and benefits of prosecutions be determined by market mechanisms (e.g., insurance, betting, auctions). For example, as part of such a system, prosecutors might somehow get a budget, allocate the budget to individual charges, and win/lose the money based on which charges stick.

  • Fist of Etiquette||

    I'd hate to be that US attorney and that magistrate right about now, with the punishment they're sure to get for blatantly violating their oaths of office.

  • RoyMo||

    They would have to believe in a just god, that they behave in such a matter clearly indicates that they do not.

  • MatthewSlyfield||

    Hahahahahahahahahaha.

    Can't Breath, Laughing Too Hard.

  • Davulek||

    I also had a case dismissed with prejudice. In my case, it was because I broke no law. That didn't stop the prosecutor from trying to scare me into accepting probation. I had a copy of the law in my hand and he had no interest in even reading it.
    I took a page from his book of fear and intimidation and called the mayor's office and informed her of the case and that I would be suing the city and called the Chief of police asking how to file an Unlawful arrest complaint against his officer.
    Amazingly, at the next court date, they were ready to talk. They offered to drop the charges, without prejudice and tried to gag me from ever contacting anyone from the city again of ever setting foot on PUBLIC city property. I countered with drop all charges with prejudice, pay all my costs to date, I'm not agreeing with anything else, and be glad I'm not suing you.
    They saw things my way.

  • Cyto||

    That's pretty fun!

    I had a similar, albeit much smaller case. From traffic court.

    My defense was "nuh, uh, didn't happen" Not very great, I know. But I had witnesses.

    Anyway, the prosecutor went with "if you agree to pay a $110 civil penalty, I will drop the charges". I looked at what it would cost me to come back again for trial and shook on the deal, swallowing the bile of injustice. A win, but a bitter pill to swallow, having been extorted out of a hundred bucks.

  • Tionico||

    Back when I drove big rig, I was instructing a friend to drive.. he was at the wheel when we got trapped in a DOT sting, directed into a huge parking lot and were invaded by all manner of blue-suited troublemakers with chips o their shoulders. I hopped out the right, with ownership papers, he hopped out the left, with his DL. Copper demanded MY license, so he got it. They disappeared, a different guy returned and handed ME two citations.. one for dring while suspended, the other for operating with equipment violations. (SAAAAAaaaaaferty you know.... one marker lamp up at the top, Right.) Total hit was about $1200, back when a decent truck tractor could be bought for only four times that. Friend drove the bobtail tractor and me to DMV, got the ticket sorted out, my DL back. (former employer failed to pay THEIR ticket, it went to MINE). Returned to the snake pit, retrieved the trailer, got the load, etc. At the arraignment I decided to have some fun. Got called up, "you are charged with..... how do you plead". Yer Honner I'm not sure why I'm here. "Well, its obvious you were driving and committed these infractioins". No, yer honner, I ws NOT driving. "HOW did YOU get the tickets?"

  • Tionico||

    I described the situation, how the guy who took the papers is not the guy who came back to hand out theirs, none of them saw ME behind the wheel, and that I can put the guy who WAS driving in the courtroom for examination. Thus I was NOT DRIVING while suspended, in fact I ws NOT DRIVING at all. Judge dismissed the thousand dollar bite. "What about the equipment violations?" Same defense, yer honner.... I was NOT driving the vehicle, thus am not guilty of driving it when it needed those repairs. Judge grimaced, KNEW I had him, dismissed the other. He DID ask whether the license and repairs were made, Yessir, they were taken care of right away sir. You are free to go.

    As I walked back up the aisle (a theatre had been retained for that particular court session.... all the others accused that day had been caught up in the same sting, a revenue generation frenzy for the stinking state. ) quite a few of the other drivers cheered, pumped their fists, etc. Yay, one of us got away with it...... almost surprised the judge did not insist on trial where I'd have to actually produce the driver...... he figured I was not lying. He was correct.

  • Longtobefree||

    This is madness! Everybody knows it takes 8 or 10 years to properly prepare a criminal complaint!
    Next thing you know some damn fool will be saying you should have a conviction BEFORE taking all the guy's stuff!
    How elimination the letter "P" from the court system?
    No plea bargains; charge what you can prove beyond a reasonable doubt, then go to trial.
    No probation or parole. If it is safe for the crook to be out of jail, then just let him go. No expensive bureaucracy on the taxpayer dime.

    And in this particular case, why weren't his lawyers filing habeas corpus every week after the first 3 months? Where was the long and loud social media outrage?

  • RoyMo||

    There is never social media outrage when real injustice occurs because it serves no pparticular partisan interest.

  • josh||

    ^THIS^

  • ImanAzol||

    Given that he remained in jail, it seems unlikely he had money for an attorney or even bail.

  • Ra's al Gore||

    It's impossible not to think about these names as you watch Time: the Kalief Browder Story, a six-part documentary series now on Netflix about one young man's nightmarish experience of the US penal system – and not just because the documentary itself spells out the link, including footage of several of these killings.

    The series – backed by Jay Z and co-created by Nick Sandow, who plays Joe Caputo in Orange is the New Black – shines a light on the many insidious ways its deeply sympathetic subject, Kalief Browder, was failed, and eviscerates the myth of justice for all.....

  • ||

  • Cyto||

    The button on the end of the article is just fantastic.

    They really didn't see a problem with ordering a psychiatric evaluation based on the fact that the sentencing he faced going to trial was so egregious, you'd have to be crazy not to take a plea deal, even if you were innocent.

    The fact that they are comfortable talking in those terms really underscores just how corrupt the system is right now.

  • josh||

    I got arrested once.

    As I was being bailed out, the officer made a point of telling me, "whatever you did, don't do it again". The judge at my pre-trial hearing commented that I "didn't look remorseful enough". And after I wouldn't take a deal, they dismissed the charges, which they wouldn't have done if they had a case to begin with.

    This is just one of the many reasons why I'm skeptical of our criminal justice system.

  • CE||

    When do the prosecutors and judges who allowed this obvious tyranny to go unchecked get their competency exam?

  • Longtobefree||

    They are in line right behind the President - - - -

  • RonBPalmer||

    You are making this about prosecutors and they are a problem. But there were judges involved in this and they are still enforcing the mandatory minimums as you claim. The real problem is the judges. It is time for absolute judicial immunity to die a horrible death. Judges must be held accountable when they knowingly and intentionally violate constitutional rights, absent a clear judicial justification in the record.

    Absolute judicial immunity is the clear problem and it needs to go. Nobody should be above the constitution, nobody.

  • UnrepentantCurmudgeon||

    I am sympathetic but can assure you that absent judicial immunity our courts would quickly be inundated with typically frivolous lawsuits clogging the already clogged court system beyond repair. Be careful what you wish for.

  • Old Monkey||

    Several people should be disbarred, and jailed

  • Old Monkey||

    Several people should be disbarred, and jailed

  • Ned Netterville||

    Ho, hum, nothing new to see here folks, keep moving. Pick up your allotment of food stamps and a Pell Grant on your way out. Mr. Juan Ricardo Luciano and Mr. Hugh Grant, your limousines are ready at the North Portico.

  • Jackson99||

    A bit misleading. I hope this isn't a trend in Reason's stories.

    It was Tigano's own attorney who asked he be evaluated for mental competence. Then, when Tigano fired him, his second appointed attorney also asked he be evaluated. Delay in transcription, high volume of cases, delay in discovery, and having three jurists each waiting on the other contributed to the delay- not to mention that he insisted on a jury trial- for a relatively minor charge, which his father pled guilty to and was sentenced to "time served" and went home. And finally- it was Tigano's last attorney who said that during sentencing that he shouldn't be sentenced under the harsh drug laws' mandatory minimum because he suffers from a "multitude of mental health problems".

    A quick web search for Tigano Buffalo Marijuana can lead you to local news source coverage.

  • para_dimz||

    Let's have grand juries with a little bit more independence. And whatever happened to the writ of haveus corpus? Where was the accused's counsel?

  • UnrepentantCurmudgeon||

    In some states like New York grand juries serve at least in part to return indictments justifying the prosecution, but in California and other states prosecution typically proceeds by "information". In California at least grand juries are generally convened to investigate cases of government corruption and official misconduct, not criminal cases.

  • UnrepentantCurmudgeon||

    The article does not mention it so I infer that Tigano's lawyer did not seek appropriate relief by way of writ, including writ of habeas corpus or writ of supersedeas. If so, then Tigano's undue pretrial incarceration may be at least in part the product of malpractice on the part of the defense attorney.

    If appropriate writs were in fact sought then in light of the appellate decision it is hard to understand why they would have been denied, but Tigano's lawyer would at least have carried out his obligations as Tigano's attorney

  • tommhan||

    This is insane, how can the court possibly rule like this when this is an extreme case of prosecutorial misbehavior.

  • ohdelilah||

    Another thing you can thank the drug war for.

  • buybuydandavis||

    BFYTW

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