Judge Stands Alone|in 2nd Circuit Gun Case

     (CN) – A judge dissented from the Second Circuit’s refusal to rehear en banc whether a lower court’s 11-month delay in hearing a man’s felony firearm case violated his right to a speedy trial.
     When police responded to reports of trespassing at the Arlington Terrace housing complex in Staten Island on Jan. 19, 2012, Raheem Bert aka Raheem Linwood aka Radio dropped his gun out the window of his girlfriend’s 10th floor apartment, court records show.
     After police arrested Bert and recovered the weapon, he insisted that he could not be prosecuted because the gun did not work, according to government witnesses.
     Yet Bert, who was brought up on a two-count federal indictment, later moved to suppress those statements, arguing that police obtained them during an unlawful seizure, having never read him his Miranda rights.
     About 11 months after Bert’s arrest, U.S. District Judge Roslynn Mauskopf held a hearing, and then took his motion under advisement for over a year.
     Bert meanwhile stayed in prison, only for Mauskopf to rule against him in 2014.
     Though Mauskopf granted Bert’s motion to dismiss his indictment, admitting her error violated his right to a speedy trial, she let prosecutors file new charges.
     The speedy jury trial that followed led Bert to a 10-year sentence.
     But the Second Circuit found on Feb. 9 that the lower court erred by letting 11 months go by before hearing the case, in violation of the Speedy Trial Act.
     The New York City-based appeals court, in the words of Judges Rosemary Pooler and Peter Hall, remanded the case for Mauskopf to reconsider whether she should have dismissed Bert’s indictment or not.
     Judge Dennis Jacobs dissented in part, however, upholding Mauskopf’s decision.
     In an opinion published Tuesday, Jacobs also dissented from the full 13-judge panel’s denial of rehearing en banc, noting its simultaneous withdrawal of its Sept. 10, 2015, dismissal of the indictment with prejudice.
     He said that not a single circuit judge but the ones who wrote and signed on to that dismissal – Pooler and Hall – would defend it.
     “Bert had already once been convicted of possession of a gun used to take a life; Bert concedes that he suffered no actual prejudice from the trial court’s delay; the delay was caused by the court, in the interest of justice; and there was no pattern of neglect or bad faith by the government, let alone by the court,” Jacobs wrote. “Under these circumstances, freeing Bert to walk the streets of a community can only erode respect for the Speedy Trial Act.”
     The judge later added that, “The errors committed by the majority are important because they hamper, burden, delay, and confuse the straightforward analysis that governs the discretion of the trial judges.”
     According to Jacobs, “the more one cares about speedy trials, the more absurd it becomes to have matters delayed for many months simply by second-guessing the district court on appeal.”
     Justice is “radically disserved when an unrepentant recidivist convicted of a serious offense is released on the basis of nothing more than the ministerial failure of a busy district judge to declare that the time needed to decide a complex suppression motion was in the interest of justice,” Jacobs wrote.
     The parties did not immediately respond to emailed requests for comment Wednesday.

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