Delay in Criminal Procedure: What’s Good for the Goose Is . . . Well, Never Mind

Earlier this week, in Gonzalez v. Thaler (No. 10-895), the Supreme Court rejected Rafael Gonzalez’s pro se habeas corpus petition because it was filed about five weeks too late.  The Court did not comment on the deep irony of this decision: what Gonzalez was complaining about in his petition — the issue that the Court refused to address on the merits — was a ten-year delay between the time that he was charged and the time that he was brought to trial, allegedly in violation of his Sixth Amendment right to a speedy trial.  That’s right — ten years, occasioned mostly by a six-year delay by the government in initiating extradition proceedings.  What’s an extra five weeks of delay by the defendant in a case that has already been delayed far longer by others?

Pretrial delay by the government and postconviction delay by the defendant are, of course, governed by different legal rules.  The government gets the very malleable and forgiving multifactor test of Barker v. Wingo.  (Depending on the jurisdiction, there may also be a somewhat more rigorous statutory test.)  The defendant, on the other hand, faces (for purposes of federal habeas) the strict one-year statute of limitations of 28 U.S.C. § 2244(d)(1)(A).  It was this one-year deadline that Gonzalez missed by five weeks.

To be sure, the priorities of the criminal-justice system appropriately shift after conviction, justifying different approaches to delay.

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Tebowing and the Constitution

Much has been made of Broncos quarterback Tim Tebow’s outward expressions of his Christian faith, especially his practice of kneeling in moments of prayer—“Tebowing” as it is now called—after touchdowns, some of them admittedly a bit miraculous.

A recent issue of Time magazine, for example, included an article on Mr. Tebow, his faith, and the Tebowing phenomenon, with pictures of people in different locations “Tebowing Round the World.” Fox Sports’ website similarly offers a gallery of athletes and celebrities Tebowing in various settings. And last month, the Wall Street Journal ran an article entitled “Tim Tebow: God’s Quarterback,” observing that his “combination of candid piety and improbable success on the field has made Mr. Tebow the most-discussed phenomenon of the National Football League season.”

So, what is the possible relationship between Tebow-like conduct and the Constitution?

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A Lesson Learned from a Great Bankruptcy Judge

Judge Dale Ihlenfeldt Judge Dale Ihlenfeldt died right after Christmas. He was 92 years old and hadn’t sat on the bankruptcy court bench in Milwaukee for many years, though he remained active until fairly recently, including by teaching an annual CLE program in Madison in which I also participate. Teaching CLE required him to keep up on developments in bankruptcy law, and that suited him just fine, because he loved the law. He also liked lawyers, and his warm, engaging personality was always welcome whenever he could join us.

I learned a lot from Judge Ihlenfeldt over the years, but one of the most valuable lessons he taught me came very early in my legal career, and I see this story as making an important point for law students and new lawyers. The practice of law requires constant learning; you’ve barely begun to know what you need to know when you leave law school. And you can—must—learn the lessons of the law (and life) from everyone, not just your professors, but your colleagues, your adversaries, your clients, and even from judges.

Back in the mid ’70s, as an associate at Foley & Lardner, I first appeared in bankruptcy court for banks and other creditors, often seeking to recover collateral or to oppose the discharge of a debt. I had appeared before Judge Ihlenfeldt a few times, and on this particular occasion he had ruled against me. I don’t remember the details, but the decision may well have involved the judge’s exercising some discretion, and he exercised it against my client. The case was over, and (as often happened in his court) the lawyers had lingered in chambers to talk. He could tell that I was upset at losing (not then having much experience at it—a condition that time has healed), and he turned to me, in his gentle way, and said, “Oh, Tom, you have to understand that we’re the bankruptcy court. Bankruptcy law is intended to benefit debtors, and you shouldn’t expect to win all the time when you represent creditors.”

This comment struck me at the time and many times since as one of the best lessons that a judge could teach a young lawyer. And it has implications beyond bankruptcy law. Good judges like Judge Ihlenfeldt call them as they see them and follow the law as they understand it. But a lawyer should never lose sight of the fact that much of the law (understood as being what judges do) is not black and white, but gray, and a judge’s instincts in the gray area—whether to afford a debtor relief, to let a plaintiff try to prove her case, or to cut a lawyer some slack—are every bit as much a part of the law as the stuff in the books. I’m glad that I learned that lesson early from a great judge.

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