Ahmed Khalfan Ghailani's trial took five years. Is that speedy?

Ahmed Khalfan Ghailani's trial took five years. Is that speedy?

Ahmed Khalfan Ghailani's trial took five years. Is that speedy?

Answers to your questions about the news.
Nov. 18 2010 5:54 PM

Can A "Speedy" Trial Really Take Five Years?

Sure. Sometimes more.

Ahmed Khalfan Ghailani. Click image to expand.
Ahmed Khalfan Ghailani 

A New York jury acquitted the man accused of bombing U.S. Embassies in Nairobi and Tanzania on all but one of 285 counts against him on Wednesday. While the verdict is a stinging defeat for the Obama administration, the judge made several decisions in the case of Ahmed Khalfan Ghailani that the government will find useful in future trials of Guantanamo detainees. For example, the judge ruled that holding the defendant in detention for five years without trying him did not violate his right to a speedy trial. How can five years be "speedy"?

Because the holdup didn't affect the defense's case. The Sixth Amendment states that, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." Like most constitutional provisions, however, the right isn't nearly as absolute as it sounds. If either the government or the defendant requests a delay, there's usually very little the other side can do about it—so long as the trial's outcome doesn't hang in the balance. Ghailani's judge ruled that national security justified the first two years of his detention, during which time the CIA was pumping him for information. Even though the government continued to hold him for three more years after that, the wait didn't offer prosecutors any advantage at trial. All the witnesses and evidence that were available to Ghailani in 2004 were still available when his trial started.

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The right to a speedy trial is one of the most venerable traditions in Anglo-American law, going all the way back to the Magna Carta of 1215 ("to no one will we refuse or delay, right or justice"). However, at no time in the last 800 years has anyone been able to quantify exactly how speedy is speedy. The American Bar Association insists that six months should be the upward limit unless there's a really good reason for extending the deadline. But no one has managed to bring a judge or state legislature around to that point of view. The Supreme Court, for its part, has offered a vague balancing test of harm against justification: That is, if a lengthy pretrial prison stay harms the defendant unjustifiably, the judge may consider dropping the indictment. In the absence of any firm rules, judges usually find a way to explain away delays, since they hate the idea of releasing dangerous criminals just because of dawdling prosecutors. The most common justification is so-called "lack of prejudice"—that is, the accused fails to show that the holdup could undermine his defense.

A five-year delay isn't actually all that extraordinary. In Barker v. Wingo, one of the seminal Supreme Court cases on this topic, the government held the defendant for that long and didn't even have a national security excuse. The prosecutors wanted to try Barker's accomplice before him, but it took six trials thanks to hung juries and appeals. Then, when Barker's trial was finally scheduled, one of the government's key witnesses was too sick to testify. The Supreme Court ruled that the postponements were OK, since the defendant waited for three years to start complaining, suggesting that he was OK with situation. And, as with the other examples cited here, the delay didn't affect the trial.

Judges do occasionally come down on prosecutors for stalling. In Klopfer v. North Carolina, the state announced that they were declining to prosecute a Quaker who had resisted segregation in the near future, but reserved the right to restart the prosecution at a later date. Because the prosecutor seemed primarily interested in tormenting Klopfer with the ever-present possibility of a trial, the Supreme Court terminated the case.

Most trial delays are at least in part the defendant's fault. Defense attorneys repeatedly ask for continuances to review evidence and interview experts. In the meantime, the prosecution's witnesses might die, memories become hazy, and public furor over the case dissipates. Celebrity trials are notoriously lengthy affairs, since wealthy defendants have the cash to pay their attorneys to spend months or years investigating minutiae. R. Kelly's lawyers, for example, managed to put off his molestation trial for six years before securing his acquittal.

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Brian Palmer covers science and medicine for Slate.