This take on judges is not entirely accurate. FRCP 48(a) says "The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant's consent." Which was the subject of very lengthy litigation with Judge Sullivan and Flynn.
The main reason that "leave of court" is in the rules is to prevent fuckery by the government. It is abusive to charge, then withdraw, and then charge a defendant again. Perhaps it might even be done to judge shop. The judge has a minor role to prevent abuse by the government in charging decisions. In part (b) we get:
"(b) By the Court. The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in:
(1) presenting a charge to a grand jury;
(2) filing an information against a defendant; or
(3) bringing a defendant to trial."
As a corollary, rule 6(e)(4) states:
"Sealed Indictment. The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. The clerk must then seal the indictment, and no person may disclose the indictment's existence except as necessary to issue or execute a warrant or summons."
Now you tell me that you read that and think "gosh, I sure do hope that we have a shit ton of sealed indictments around the country that started 5+ years ago. Why, I know we can count on judges to NOT dismiss the indictments because of 'unnecessary delay' in bringing a defendant to trial." Such a ruling would be subject to an "abuse of discretion" standard, which is to say, virtually impossible to prevail on appeal. I would not believe for half a second that the fact it would be inconvenient to bring someone to trial at the moment will suffice as an excuse for not moving forward in the case. The purpose is to make a defendant who is on the run, or likely to flee, unaware of pending arrest warrants. The purpose is not to cover for when it might be a shit show to start plucking these guys off the streets and begin trying them.
The US Attorney's office has sole discretion on the decision to charge. It would be "abuse of discretion" for a judge to NOT dismiss an indictment in which the defendant had yet to appear for even a preliminary hearing or arraignment. It would not be necessary to unseal what is being dismissed. So whatever US Attorney is in that district can decide to file a motion to dismiss an indictment and that is basically the end of it. Perhaps a judge could issue the dismissal with or without prejudice. But they still have to dismiss it. No other choice.
There have been courts sua sponte inventing new statutes of limitations due to covid. This is a minority practice; the majority of courts reject any authority to do so, absent an act of Congress. I am sure we will also see a SCOTUS case coming up on speedy trial rights as a result of covid too. As well as trials where defendants were forced to wear masks, juries were on zoom, and other non standard practices.
What the public does not fully understand is that judges basically do whatever the hell suits them. Law be damned. This includes SCOTUS. They'll sprinkle a few buzzwords in there to try and disguise it as a legitimate ruling based on the law. Whatever it takes to achieve their preferred outcome.
The executive has no ability to suspend the Constitution, nor the rules of criminal procedure. Congress can suspend habeas corpus, although Lincoln did so on his own. The Constitution is what gives the executive authority in the first place. One cannot suspend what grants authority to act.
Judges could easily decide not to exercise their discretion to dismiss under rule 48(b)(3). And that would be entirely permissible. The problem is that we have all seen how corrupt the judiciary is. Such a ruling would be entirely judge and fact dependent. Judge Sullivan, for example, would almost certainly never have a trial on cases arising out of this. He'd simply boot them under rule 48. And state that he could not agree that the government was justified in their delay bringing the defendant to trial is going to be one helluva burden for the government on appeal to get overturned.
This take on judges is not entirely accurate. FRCP 48(a) says "The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant's consent." Which was the subject of very lengthy litigation with Judge Sullivan and Flynn.
The main reason that "leave of court" is in the rules is to prevent fuckery by the government. It is abusive to charge, then withdraw, and then charge a defendant again. Perhaps it might even be done to judge shop. The judge has a minor role to prevent abuse by the government in charging decisions. In part (b) we get:
"(b) By the Court. The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in:
(1) presenting a charge to a grand jury;
(2) filing an information against a defendant; or
(3) bringing a defendant to trial."
As a corollary, rule 6(e)(4) states:
"Sealed Indictment. The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. The clerk must then seal the indictment, and no person may disclose the indictment's existence except as necessary to issue or execute a warrant or summons."
Now you tell me that you read that and think "gosh, I sure do hope that we have a shit ton of sealed indictments around the country that started 5+ years ago. Why, I know we can count on judges to NOT dismiss the indictments because of 'unnecessary delay' in bringing a defendant to trial." Such a ruling would be subject to an "abuse of discretion" standard, which is to say, virtually impossible to prevail on appeal. I would not believe for half a second that the fact it would be inconvenient to bring someone to trial at the moment will suffice as an excuse for not moving forward in the case. The purpose is to make a defendant who is on the run, or likely to flee, unaware of pending arrest warrants. The purpose is not to cover for when it might be a shit show to start plucking these guys off the streets and begin trying them.
The US Attorney's office has sole discretion on the decision to charge. It would be "abuse of discretion" for a judge to NOT dismiss an indictment in which the defendant had yet to appear for even a preliminary hearing or arraignment. It would not be necessary to unseal what is being dismissed. So whatever US Attorney is in that district can decide to file a motion to dismiss an indictment and that is basically the end of it. Perhaps a judge could issue the dismissal with or without prejudice. But they still have to dismiss it. No other choice.
what about state of emergency exec orders suspending standard lega processes?
There have been courts sua sponte inventing new statutes of limitations due to covid. This is a minority practice; the majority of courts reject any authority to do so, absent an act of Congress. I am sure we will also see a SCOTUS case coming up on speedy trial rights as a result of covid too. As well as trials where defendants were forced to wear masks, juries were on zoom, and other non standard practices.
What the public does not fully understand is that judges basically do whatever the hell suits them. Law be damned. This includes SCOTUS. They'll sprinkle a few buzzwords in there to try and disguise it as a legitimate ruling based on the law. Whatever it takes to achieve their preferred outcome.
The executive has no ability to suspend the Constitution, nor the rules of criminal procedure. Congress can suspend habeas corpus, although Lincoln did so on his own. The Constitution is what gives the executive authority in the first place. One cannot suspend what grants authority to act.
Judges could easily decide not to exercise their discretion to dismiss under rule 48(b)(3). And that would be entirely permissible. The problem is that we have all seen how corrupt the judiciary is. Such a ruling would be entirely judge and fact dependent. Judge Sullivan, for example, would almost certainly never have a trial on cases arising out of this. He'd simply boot them under rule 48. And state that he could not agree that the government was justified in their delay bringing the defendant to trial is going to be one helluva burden for the government on appeal to get overturned.