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Citing practical concerns, the 2nd U.S. Circuit Court of Appeals said that errors made under the Speedy Trial Act should be evaluated for whether they actually caused harm to the defendant or the public interest. The court, in concluding that “harmless error analysis” is appropriate for speedy trial cases, said in an opinion by Judge Pierre N. Leval that “the failure to consider the harmlessness of certain errors under the Speedy Trial Act can result in perverse outcomes, including allowing the serious crimes to go unpunished, and causing the objective of the Act to expedite the administration of justice to be undermined.” The act, 18 U.S.C. ��3161-3174, says the trial of a defendant must begin within 70 days from the day the defendant is indicted or first brought before a judicial officer — or the indictment should dismissed. The law provides for continuances that delay the opening of trial that do not count toward the 70-day calculation, including where the delay is the responsibility of the defendant or the defendant has waived any claim under the act. Jacob Zedner was indicted on April 4, 1996, on several counts of attempting to defraud a financial institution and a single count of knowingly possessing counterfeit bonds. After a series of delays which Eastern District Judge Thomas C. Platt excluded from the 70-day clock, Zedner requested an adjournment on Nov. 8, 1996. Platt, concerned that Zedner might later try to invoke his rights to a speedy trial at a time when it was inconvenient to empanel a jury, insisted that Zedner give a “waiver for all time” of his right to a speedy trial. Zedner’s execution of a written waiver was followed by several postponements, including one caused by a psychiatric examination, another by Zedner’s decision to fire his lawyer and proceed pro se, and a third by his attempt to serve subpoenas on high-ranking government officials, including former President Bill Clinton and Federal Reserve Chairman Alan Greenspan. The debate over Zedner’s competency continued to delay trial in the case until March 7, 2001, when he moved to dismiss the indictment under the act. Platt denied the motion because Zedner had waived his rights “for all time.” He was ultimately convicted on six counts of fraud and sentenced to five years and three months. On his appeal in U.S. v. Zedner, 04-0821-cr, he claimed that Platt erred when he did not exclude the time between Jan., 31 1997, and May 2, 1997, and between Aug. 11, 2000, and March 7, 2001. The latter delay was caused by both the continued questioning of Zedner’s competence to stand trial and the fact that the attorney who was assisting him while he proceeded pro se was unavailable because of pregnancy complications. DEFENDANT’S ROLE Leval said the circuit was rejecting both contentions. The 2nd Circuit has held, he said, that a defendant’s waiver of rights under the Speedy Trial Act may be ineffective. While the public’s “strong and independent” interest in expeditious prosecutions “would be undermined if the Provisions of the Act intended for the public benefit could be routinely nullified by a defendant’s waiver,” he said, the court has also recognized in dictum an exception to the non-waiver rule where the defendant causes or contributes to the delay. Other circuit courts of appeals have taken a variety of approaches to waivers under the act, but Leval said, “We need not define the exact scope of the exception to the non-waiver rule in order to decide the case before us.” “At the very least, when a defendant requests an adjournment that would serve the ends of justice, the defendant will not be heard to claim that her Speedy Trial rights were violated by the court’s grant of her request, regardless of whether the court made an ‘ends of justice finding’ finding under �3161(h)(8),” he said. The first delay, Leval said, was caused by the defendant. And the second period Zedner claimed should have been excluded because of the competency issues and his attorney’s pregnancy, Leval said, was “at worst, a harmless, technical error.” And even though the circuit has directed the dismissal of an indictment in some speedy trial cases without discussing harmless error analysis, he said, there have been cases were it has found some failure’s to exclude time to be harmless. So the panel in Zedner’s case stated that, “Absent a clear indication to the contrary, we believe the Speedy Trial Act should be interpreted, like other laws,” so that “courts should disregard defects that do not affect substantial rights,” Leval said. “A case tried to a satisfactory conclusion a few days later than the Act specifies, without substantial adverse effect on anyone, can require costly retrial a year or more later, after appeal, dismissal of the indictment, and reindictment, in a manner causing vast expense, inefficiency, unfairness, and unjustifiable delay in the administration of justice,” he said. “We see no reason to believe Congress intended such illogical results.” Judge Reena Raggi and Southern District Judge Sidney H. Stein, sitting by designation, joined in the opinion. Assistant U.S. Attorneys Stephen C. King and Emily Berger represented the government. Edward S. Zas of the Legal Aid Society represented Zedner.

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