When Justice Delayed is Justice Denied: A ‘Sui Generis’ Moment – por Geoffrey S. Corn

One of the many challenges of studying law is learning a new vocabulary, and that vocabulary often includes Latin terms. Indeed, Latin and the practice of law are inseparable. One such term is sui generis, which, loosely translated, means “unique.”

If ever there has been a sui generis criminal proceeding in our nation it is the federal case pending against Donald Trump. From the inception of the investigation into his alleged retention of classified documents at Mar-a-Lago, every step in the process has been unique — for the simple reason that no other former president has ever faced anything similar.

Sui generis is certainly the appropriate characterization for this week’s news that the lawyers representing Trump are seeking to delay his trial until after the 2024 presidential election. There is, of course, nothing unique about criminal defendants seeking to delay their trials, requests that are motivated by a variety of strategic and tactical considerations. But never has such a request been made by a defendant who has a genuine prospect of being elected U.S. president — with the accordant authority to terminate the criminal proceedings pending against him.

One of the rights provided to all criminal defendants is that of a speedy trial, which is one of several fundamental trial rights embedded in the Sixth Amendment to the Constitution. In Barker v. Wingo, the Supreme Court emphasized how a speedy trial is unique in the constellation of fundamental trial rights. Why? Because unlike other Sixth Amendment rights — such as the right to a jury or confrontation of witnesses — it is quite common that a defendant does not want a speedy trial. Delay, it turns out, often serves a defendant’s interests.

But the Supreme Court also noted that a speedy trial serves a societal interest: the prompt and fair adjudication of accusations of criminal misconduct. Accordingly, delay should not be allowed when it compromises the interests served by this right — namely, efficiency and accuracy. Therefore, it is the responsibility of the prosecutor to ensure that the interests protected by the right to a speedy trial are not undermined by excessive and unreasonable delay.

It is unlikely, however, that the justices could have contemplated the possibility that a defendant’s effort to delay trial might be motivated by an interest in gaining a position of authority that would enable him to terminate the criminal proceeding. How a judge should respond to such a request is, therefore, indeed a sui generis issue. Of course, it is unlikely that Trump’s defense will assert this as justification for the request; instead, his lawyers are likely to argue that they need time to adequately prepare for trial.

But while the stakes involved in this case are indeed enormous, from all we have seen to date, the case itself does not appear to be all that complicated legally. As a result, it is likely that the prosecution will object to any delay it perceives as unjustified by the need to provide the defense with adequate time to prepare. If so, should — or perhaps, more importantly, will — the judge consider the very real possibility that regaining the power of the presidency is one motivation for the request?

There is also the complicated question of whether the prosecution might appeal a decision by the trial judge to grant this delay. Normally, such pretrial continuance rulings, even when opposed by the prosecution, are not challenged further. But in this sui generis case, the prosecution very well may perceive a compelling public interest in preventing a delay that might enable the defendant to terminate the proceedings, either by granting himself a pardon or by appointing Department of Justice officials who would act to dismiss the case. If so, the legitimacy of granting the defense request for a long delay conceivably could make its way to the Supreme Court.

All of this comes back to the basic function of the criminal justice process. While there can be no question that the rights embedded in the Sixth Amendment serve to protect an individual accused of a crime from unjust results, the process also serves the interest of society in a fair and efficient adjudication of the accusation. The right to a speedy trial prohibits the prosecution from unreasonable and unjustifiable delays that can prejudice the accused’s ability to get a fair adjudication of the charges against him.

But while a defendant is entitled to reasonable delays necessary to adequately prepare for his trial, the law must not allow such delays to be used as a pretext for depriving society of a meaningful opportunity to adjudicate the accusation of criminal misconduct. How this latest move by the former president’s legal team plays out will test this principle in a way that is indeed sui generis.

Geoffrey S. Corn , published 07/14/23 08:00 AM ET; Geoffrey S. Corn is the George R. Killam Jr. Chair of Criminal Law and director of the Center for Military Law and Policy at Texas Tech University School of Law. Prior to joining academia, he served 22 years in the U.S. Army as both a tactical intelligence officer and a military lawyer, retiring as a lieutenant colonel. He is the author and co-author of numerous articles and books, including “Criminal Law: Concepts, Crimes, and Defenses.”

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