New York v. Hill – Oral Argument – November 02, 1999

Media for New York v. Hill

Audio Transcription for Opinion Announcement – January 11, 2000 in New York v. Hill

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William H. Rehnquist:

We’ll hear argument next in No. 98-1299, New York v. Michael Hill.

Mr. Mastrocola.

Robert Mastrocola:

Mr. Chief Justice, and may it please the Court:

This case involves the Interstate Agreement on Detainers, or IAD, which establishes a set of procedures for the interjurisdictional transfer of prisoners from… who are facing charges in the other jurisdiction.

It’s our position that a defendant cannot be permitted to expressly agree to a trial date which is beyond the time period prescribed by the IAD and then turn around and, on the basis of that very violation of the right, because it’s been conducted after the time period, have his charges dismissed.

William H. Rehnquist:

Now, you say… you say expressly agree.

The defendant’s counsel expressly agreed.

Do you… do you say that is the same thing as the defendant agreeing?

Robert Mastrocola:

Well, it is proper for the defense attorney in these circumstances to make those decisions.

And therefore, yes, a waiver…

William H. Rehnquist:

And…

Robert Mastrocola:

by defense counsel is sufficient for the court to rely on.

In this case, respondent was transferred from Ohio to New York to face murder and robbery charges, and following the completion of pretrial proceedings, the parties met in court for the express purpose of setting a trial date.

A date was proposed by the court.

Defense counsel expressly agreed to that, said that would be fine.

So, the date was set.

Now, that date happened to be beyond the 180-day period.

Once that…

Sandra Day O’Connor:

It’s just a matter of… as a matter of convenience for everyone, I wonder why the prosecutor didn’t point out that it was beyond the 180 days.

Robert Mastrocola:

I don’t know that either…

Sandra Day O’Connor:

I mean, it would certainly have avoided a lot of problems.

Wouldn’t you think prosecutors ought to do that normally?

Robert Mastrocola:

They… they certainly can do that, and frankly, the courts can do that as well.

Sandra Day O’Connor:

Well, it should.

Robert Mastrocola:

But I think the question here then is, is that an absolute requirement?

Sandra Day O’Connor:

Probably not, but I just wonder about the kind of practice if the lawyer doesn’t point it out to the court.

Robert Mastrocola:

Well, I think, on the other hand, Your Honor, you could also posit that in fact you would assume that all the parties are aware of the rights and aware of the time provisions and they don’t need to expressly discuss those provisions at the time.

When they’re setting a trial date, if it happens to be outside the period, that’s understood.

And if defense counsel wants to agree to that, that’s fine, and if he doesn’t, he can say he doesn’t want for… because it’s outside the period or for any other reason.

So, there’s no obligation to conduct a full colloquy regarding the Interstate Agreement on Detainers and the particular trial provisions.

Robert Mastrocola:

It’s no different from any other statutory speedy trial right, for that matter.

In this case…

Ruth Bader Ginsburg:

You said it’s no different from any statutory speedy trial, but as I understand, at least the Federal Speedy Trial Act is different in that you can’t waive the time limits apart from the express provisions in… in the statute for waiver.

Robert Mastrocola:

The Federal Speedy Trial Act, unlike the IAD, does contain an express waiver provision, and it also has been interpreted, because of its legislative history which specifically indicates that the intent was that a defendant could not waive that, and therefore the Federal courts of appeals have held that that is not waivable by a defendant.

You don’t have any express language in the IAD regarding waiver.

You have nothing in the legislative history of the IAD indicating that waiver was meant to be precluded.

And in fact, the IAD was enacted, against this background presumption, that statutory rights are normally waivable.

Ruth Bader Ginsburg:

So, you… you started out to say it’s just like the Speedy Trial Act, but it isn’t.

Robert Mastrocola:

Well, I apologize.

Yes, the Federal Speedy Trial Act would be distinguishable on that basis.

I’m referring to what my understanding is of the basis for most typical State speedy trial statutes throughout the Nation.

John Paul Stevens:

May I ask you a question about your position?

I don’t understand you to argue that this… this was a necessary and reasonable continuance within the meaning of Article III(a).

You’re just… you’re just relying entirely on waiver.

Robert Mastrocola:

That’s correct, Your Honor.

John Paul Stevens:

You do not contend that it was a… that you could… you could prevail by arguing that that… this was just a necessary and reasonable continuance.

Robert Mastrocola:

No.

John Paul Stevens:

Why not?

Robert Mastrocola:

It’s our position that the necessary and reasonable continuance provisions, specifically in the statute… that also includes a good cause standard, and it also has to be done in open court.

And it’s our position…

John Paul Stevens:

Well, this was done in open court.

Robert Mastrocola:

But there was no…

John Paul Stevens:

If two lawyers say to the judge, it’s inconvenient to go to trial on such and such a day, we’d like a later date, why isn’t that good cause for a trial judge?

I mean, I know this… I should be asking your opponent this, but I’m just puzzled that you didn’t make this argument.

Robert Mastrocola:

Well, I believe because it was in the nature of the colloquy here and there was no discussion about the reasons why that was done, because there was no need for the… any discussion.

Once the date was proposed and the counsel agreed to it, there was no need for a discussion as to why that was or was not appropriate.

And so, it was just accepted by the court that that was…

John Paul Stevens:

The mere fact that the judge and both lawyers think the case ought to be put over is not good cause.

That’s not a showing…

Robert Mastrocola:

I’m sorry, Your Honor.

John Paul Stevens:

The mere fact that the trial judge and counsel on both sides think a later date is… would be… would be better… would justify a continuance, that would not be good cause in your view.

Robert Mastrocola:

I think if there’s some articulation as to what the reason was, other than just indicating, as you typically do in trial practice, when the parties get together and a date is selected.

A lot of times, unless there is a problem with that date, you don’t get any discussion as to why or why… why it’s not good.

The parties just agree and… and it’s understood that that’s going to work out for everybody and it’s acceptable.

Stephen G. Breyer:

That’s the point.

I mean, why isn’t that… that’s the point.

Why isn’t that good cause?

Robert Mastrocola:

It’s our position that that provision of the IAD really applies for when the government is seeking a continuance over the defendant’s objection.

That’s why we have the statutory presumption of waivability.

If the defendant wants to waive it, that’s fine, but if the government needs a continuance and the defendant wants to object, the court can go ahead and find good cause.

And I think…

Antonin Scalia:

I thought the term continuance is… is used when a date has already been set and you want to extend the date.

It would seem to me strange to talk about setting an initial date as being a continuance for good cause.

Robert Mastrocola:

I think under a very strict interpretation of that term, that’s correct.

The courts over the years, though, have basically treated it as…

Antonin Scalia:

I’m talking normal English.

You continue a date that… from a date that’s already been set.

Robert Mastrocola:

I wouldn’t disagree with that, Your Honor, but I believe the courts…

Antonin Scalia:

That’s why you didn’t argue it.

Right?

Because it wouldn’t have made much sense to argue it.

[Laughter]

Ruth Bader Ginsburg:

Well, I’m not… I’m not sure that’s so because doesn’t it come within the reasonable and necessary continuance?

A defendant makes a lot of motions, and it takes time for the judge to decide those motions.

And if you didn’t deduct that time, you would be over the 180-day period.

Robert Mastrocola:

That’s correct, Your Honor.

The courts use both the good cause continuance provision, as well as a separate provision in the IAD, which says that you don’t count time when the defendant is unable to stand trial.

That’s also been interpreted as allowing tolling of the time periods.

When you’re calculating the time period, you toll those periods when there’s defense motions or other things the defense has done.

William H. Rehnquist:

The… the question you brought here, Mr. Mastrocola, though you might not have realized it from all the questions, is, does the defendant’s express agreement to a trial date beyond the 180-day period required by the IAD constitute a waiver of his right to trial within the period?

Robert Mastrocola:

That’s correct, Your Honor.

And that’s exactly what we’re saying because that is a tactical decision, a case management decision in terms of the trial date, which counsel is entitled to make.

There is no need for any kind of specific on-the-record inquiry of counsel about this.

The court is entitled to rely on the fact that the counsel is managing the case properly.

And therefore, when he agrees to that trial date, he is not entitled then to come in and await the statutory period to run and say, aha, I got you.

Now, you have to dismiss the case.

The court…

Anthony M. Kennedy:

And that is because the court can reasonably interpret the counsel’s act… specific agreement as a waiver of the IAD.

Robert Mastrocola:

That’s right because counsel has done something on behalf of the defense that is contrary to or inconsistent with relying on those rights under the IAD.

The court of appeals here made the distinction that even though the right is waivable and the defense counsel merely concurred in the trial date… he didn’t actually ask for the date… and on the basis of that distinction, they said there was no waiver.

In other words, even though the defense had fully agreed to be treated in a fashion contrary to the IAD, he didn’t actually ask to be treated in such a contrary fashion.

And that was the basis for the finding that there was no waiver of the IAD, and on that basis, they set aside the convictions and the sentence.

William H. Rehnquist:

Well, and they directed the dismissal of a murder indictment, did they not?

Robert Mastrocola:

That’s correct.

This defendant was convicted of murder and robbery and received up to a life sentence.

And the court, on that distinction, which we submit is an improper and obviously a very fine distinction, found that there was no waiver.

We believe that once… again, the standard about acting contrary to or inconsistent with your rights under the statute, in this case the IAD, is a workable standard for a court to rely on.

And therefore, they can determine that under those… under that standard when a defendant has, in fact, waived his rights.

It’s important I think to remember also that the IAD, like other speedy trial statutes… and again, referring to the particular State speedy trial statutes… it’s not intended to be a trap that the defense can spring on the court.

At some point, the defendant does have an obligation to assert his rights or he loses them.

Now, there…

John Paul Stevens:

Well, he did assert his rights.

He asserted in writing, didn’t he?

He said he wanted a trial within 180 days.

Robert Mastrocola:

That was how the process was initiated, Your Honor, but…

John Paul Stevens:

And he has to keep the prosecutor advised to what that means?

Robert Mastrocola:

He doesn’t have to keep the prosecutor advised, but at some point, if he is given the opportunity to determine whether he continues to insist on those rights, he has to indicate that.

All he has to do, if he wants to maintain that right…

John Paul Stevens:

I mean, the statute requires him to request it twice, not just once.

Robert Mastrocola:

He has… well, no, he has to refrain from doing something to indicate to the court that he’s no longer relying on those rights.

Robert Mastrocola:

And when a court specifically, instead of forcing a date on counsel, when a court gives the respondent an opportunity for input into that decision and if the date proposed happens to be outside that, at that point there is an obligation for the defendant to speak up.

Now, it may be…

John Paul Stevens:

The court of appeals thought the obligation was on the prosecutor.

It seems very likely that both lawyers overlooked the point, and then the question is who should… who should bear the loss.

Which one has the primary responsibility after the demand has been made?

Is it the prosecutor who has a duty to go forward or is the defendant… defendant’s lawyer have to keep it in mind all the time?

Robert Mastrocola:

Well, it is, just like any other decision defense counsel has to make, that is part of the case management.

And again, if… in a situation where at least at a minimum he’s given the opportunity to decide whether he’s going to continue to rely on those rights or not, it’s fair then, when he indicates that he’s not, for the court to reasonably rely on that.

Obviously, in a perfect world, it would… everybody would be aware of their rights.

There would be a discussion of their rights probably every time they come into court and that would all be well and good.

But the question now is when that doesn’t happen, is it fair then for… to say that the court acted reasonably based on what representations came from the respondent’s side.

Anthony M. Kennedy:

Did the defense counsel participate in drafting the initiation of rights under the IAD, the formal… the formal… the request for a disposition?

Robert Mastrocola:

The particular detainer form in this case?

Anthony M. Kennedy:

Yes.

Or was the defense counsel appointed after he came to New York.

Robert Mastrocola:

Counsel was assigned to the case when he came to New York when the defendant… when respondent was transferred from Ohio to New York and proceedings began is my understanding.

Anthony M. Kennedy:

I… I assume… or maybe I’m wrong… that the IAD request is in the… is in the court file?

Robert Mastrocola:

It is part of the record, yes.

Anthony M. Kennedy:

Is there any indication that this defense counsel knew of the IAD request?

Robert Mastrocola:

In terms of an affirmative indication?

I don’t believe there is, but there is no indication that he doesn’t.

Again, my understanding, again this is just with our practice in New York, is there is full pretrial discovery, and… and any of these sorts of documents are provided during the course of pretrial discovery.

And there also is… and again, counsel certainly was aware that this defendant was being transferred from Ohio to New York and that he was imprisoned in Ohio.

And I think in… in toto then it certainly can be assumed that counsel was aware of that.

Antonin Scalia:

Mr. Mastrocola, what if I think that one of the purposes of the 180-day period is… is to protect the sending State, the State in which the prisoner was incarcerated?

New York requests the prisoner to… to try him and he’s sent to New York.

And then New York counsel and the prisoner’s counsel diddle… diddle along with this… with this case, extend the 180 period indefinitely.

And I’m the sending State and I say, you know, I want this prisoner back.

Robert Mastrocola:

I think, Your Honor…

Antonin Scalia:

Wouldn’t it be better to have a flat 180-day rule so that… so that I know when I send this prisoner, I’ll have him back in my State so I can try him as soon as possible?

Robert Mastrocola:

Well, in the normal course of things, the 180-day period, as with most speedy trial statutes, is not a chronological period.

It’s understood that you’re not actually going to have a trial within the 180 days because of all these pretrial proceedings.

So, it’s not that the case… they can honestly expect that they’re going to get this defendant back within 180 days.

Antonin Scalia:

Well…

Robert Mastrocola:

Now, they may have an interest in getting that prisoner back, but that interest is secondary to this prisoner’s interest and what he wants to do facing these charges in the case that he’s facing on the matter that he’s been transferred on.

And it’s I think important to note that whatever interest the sending State has in terms of… and I think… are you referring to the prison authorities?

Antonin Scalia:

Right.

Robert Mastrocola:

And the…

Antonin Scalia:

Oh, he’s in a cushy prison while he’s… while he’s waiting trial in the other State.

Robert Mastrocola:

Yes.

That’s… again, that concern is secondary to the prisoner’s interest in terms of how he wants to control the case because the whole focus of the IAD is on how this may affect the prisoner in terms of his rehabilitation.

Now, obviously…

Ruth Bader Ginsburg:

In this case, the trial in Ohio had already… he had been convicted in Ohio.

Robert Mastrocola:

Right.

Ruth Bader Ginsburg:

It wasn’t that the Ohio case was put on hold…

Robert Mastrocola:

No.

Ruth Bader Ginsburg:

while he went over to New York.

Robert Mastrocola:

No.

The IAD applies when the person is actually serving a sentence…

Ruth Bader Ginsburg:

Yes.

So, it isn’t the case that one State would have to give up its priority in trying the person.

It’s the person that has already been tried and put in prison…

Robert Mastrocola:

Right.

Ruth Bader Ginsburg:

and then is asked to be sent over to the other State for the second trial.

Robert Mastrocola:

That’s correct.

Antonin Scalia:

What if he’s in prison on… on one conviction and… and is… is also accused on another charge in the… in the sending State?

Does the sending State have no obligation to send him off?

Robert Mastrocola:

He’s…

Antonin Scalia:

He’s already incarcerated, but there’s another… there’s another criminal complaint filed against him which has not yet been… which has not yet been tried in that same State.

And then another State requests his extradition for… for trial on yet a third criminal charge.

Antonin Scalia:

He doesn’t have to be sent?

Robert Mastrocola:

Under the IAD… and I think this… this goes back to your earlier question about the… the sending State’s interest.

Antonin Scalia:

Right.

Robert Mastrocola:

The sending State cannot initiate itself any procedures for transfer under the IAD.

The IAD reserves exclusively to the prisoner the absolute control over whether he is going to activate the transfer to the other State.

Now, if the detainer, of course, being lodged… I would guess it would be a matter of comity between the States if, in fact, our… our State lodged detainer and said, we would like to come and get him, but the other State said, well, we have charges here.

Antonin Scalia:

We want to try him…

Robert Mastrocola:

Normally that jurisdiction where the… where the prisoner is and… and has charges pending would take precedence, and we would normally await that.

But again, the idea is that the… whatever interest there is in the sending State is secondary to the prisoner’s.

And they have no right, no matter how they want to either send the prisoner or get him back, to do anything under the IAD.

With the Court’s permission, I’d like to reserve whatever remaining time I have for rebuttal.

William H. Rehnquist:

Very well, Mr. Mastrocola.

Ms. Blatt, we’ll hear from you.

Lisa S. Blatt:

Thank you.

Mr. Chief Justice, and may it please the Court:

Respondent waived his speedy trial right under Article III of the IAD when his counsel consented to a trial date falling beyond the statutory period.

This Court has held that statutory rights are presumptively subject to waiver as a clear indication that the legislature intended to depart from that presumption.

There is nothing in the text or history of the Interstate Agreement on Detainers that indicates that either Congress or the adopting States intended to preclude prisoners from waiving their rights under the agreement.

Indeed, only the prisoner may invoke the speedy trial right under Article III by requesting disposition of an outstanding detainer.

The history of the agreement, moreover, makes clear that the speedy trial right is primarily designed to benefit the prisoner by protecting him from the ill effects of detainers.

A prisoner may, therefore, waive the protections of the IAD by taking…

John Paul Stevens:

But if you say the prisoner is the only person who can invoke the right, why wouldn’t it seem to follow naturally that he would be the only one who could waive the right?

And we don’t have any indication he knew what was going on.

Lisa S. Blatt:

Well, he was present at the hearing, but this Court has indicated that the defendant personally need not give personal consent with respect to strategic and trial type decisions.

The adversarial system basically couldn’t function if every time counsel made a decision, the trial judge had to say to the defendant…

John Paul Stevens:

Well, it’s normal tactics and all the rest.

But here you’re waiving an important right.

You don’t think… you don’t think there’s any… any interest… maybe it’s not strong enough… making sure that the… the defendant himself agreed to it.

Lisa S. Blatt:

This Court has indicated that instances in which the defendant must give personal informed consent is… is, by and large, limited to fundamental constitutional trial type rights.

John Paul Stevens:

Well, I understand that, but here you have a statute, which you just emphasized the point, that in order to invoke the right, his lawyer couldn’t have invoked the right for him.

John Paul Stevens:

Could he?

Lisa S. Blatt:

That’s correct.

The decision is up… the prisoner initiates the transfer by filing the request, but generally speaking, and certainly something like a trial date, the decisions by counsel are usually binding on the client.

And there’s no reason to depart from that here.

John Paul Stevens:

I understand that, but I’m just wondering, given the fact that this statute is different in that it says the prisoner has to do it himself.

Lisa S. Blatt:

Well, the…

John Paul Stevens:

You’d just say, no, it isn’t.

Antonin Scalia:

Is it clear that it can’t be done by counsel?

Counsel could not…

Lisa S. Blatt:

Counsel could fill out the form.

I don’t… I mean, I guess there’s no reason to think… I don’t know whether the defendant personally has to sign it or not.

I don’t… there’s no reason to think that counsel couldn’t…

Antonin Scalia:

Well, but that’s very crucial to… to the whole line of questions that Justice Stevens was…

Lisa S. Blatt:

Right.

I… that’s correct, Justice Scalia.

The key point about Article III…

Antonin Scalia:

You think it would be ineffective if…

Lisa S. Blatt:

No.

Antonin Scalia:

if he made a request through counsel?

Lisa S. Blatt:

No, it would be.

My key point… and let me be clear on this… is that the sending State cannot force the… the transfer.

It’s up to the… the prisoner, and he can do that through counsel.

Antonin Scalia:

I would think he could do it through counsel.

Lisa S. Blatt:

Right, he could.

And the… when you’re in the sending State and the trial is going and the… and the court sets a date and trial counsel says that would be fine, that that’s reasonably viewed by the trial court as… as an express consent.

Antonin Scalia:

What if he didn’t say that would be fine?

Are you taking the position… I mean, what… what if the date was set and the defendant says nothing about it?

Wouldn’t that be… reasonably be considered his waiver of his right to have it within 180 days?

Lisa S. Blatt:

If… if the court solicited the party’s input and there was no response, that that might be a waiver.

But generally pure silence would be, at least in the Federal system, a procedural default under… the… the prisoner would not be able to get relief unless he met the plain error standard for procedural default.

Lisa S. Blatt:

But if there’s express consent, then that… that is a waiver and… and…

Antonin Scalia:

I’m not sure what that means.

Are you taking the position that if… if a date is set and the defendant does not object to that date, what?

Has he waived it?

Lisa S. Blatt:

That is generally in the… in the Federal system, he would not be entitled to relief.

It would be procedural default unless plain error was met.

The only category where it might fall into waiver is if the trial court expressly solicited the input of counsel and said, how’s this date with you, and counsel just didn’t respond, maybe that kind of situation.

Antonin Scalia:

Well, does it have to be waiver rather than procedural default here?

Lisa S. Blatt:

This case is express consent and…

Antonin Scalia:

I understand that.

But I’m… I’m wondering… you know, we have to write the opinion and…

Lisa S. Blatt:

It’s waiver in this case.

Antonin Scalia:

Is… is waiver the only way to get around it?

Can there be a procedural default of your right to…

Lisa S. Blatt:

Absolutely.

Again, but that is a… I’m not sure the court would be able to resolve that because that would be a question of States…

Ruth Bader Ginsburg:

Would that be a State law question?

Lisa S. Blatt:

Yes.

Ruth Bader Ginsburg:

This came up from New York State…

Lisa S. Blatt:

Yes.

Ruth Bader Ginsburg:

not from the Federal court.

And you were… you were very careful to say, when you’re talking about procedural default, you’re talking about procedure in Federal courts.

New York could have it any way it wants, couldn’t it?

Lisa S. Blatt:

Right, and that wouldn’t be a question for this Court.

That would be a question for the New York courts.

But it is a Federal question about waiver and the scope of the waiver, and it’s clear that express consent is a waiver.

And this Court made that clear in Peretz v. United States and in other cases.

Anthony M. Kennedy:

I can’t see it in the statute.

Do you happen to know the answer to Justice Scalia’s question?

What happens if the defendant is convicted in Ohio but there’s another charge pending in Ohio, and then there’s a request to go to New York?

Anthony M. Kennedy:

Can Ohio insist on trying its second charge before it ships?

Lisa S. Blatt:

My understanding is no.

The only… the only control the sending…

Anthony M. Kennedy:

That’s my…

Lisa S. Blatt:

State has is under Article IV.

If New York had filed the request for temporary custody, then the Governor would have 30 days to… to veto that.

Anthony M. Kennedy:

So, Ohio would have an interest in getting the prisoner back, I take it.

Lisa S. Blatt:

Yes.

There is a general interest…

Anthony M. Kennedy:

In the… in the hypothetical instance.

Lisa S. Blatt:

Right, but that interest doesn’t suggest that the right is not waivable or still can’t be waived.

There… by joining the Interstate Agreement on Detainers, States have consented to some delay inherent when the prisoner is transferred out of the jurisdiction to be tried on… on outstanding charges.

John Paul Stevens:

May I ask you a question about…

Anthony M. Kennedy:

Well, but the… if I could…

John Paul Stevens:

Go ahead.

Anthony M. Kennedy:

But the point is then there might be an argument that it is not waivable by the defendant because then Ohio’s interest are prejudiced.

Lisa S. Blatt:

The… well, I’m not sure I’m following you.

If the… if the… well, if the defendant requests transfer, there’s nothing the sending State can do about that, and there’s going to be some delay necessary to… to try him, and then the… the…

Ruth Bader Ginsburg:

Is that clear?

Because that… that was not the same answer that co-counsel gave.

Co-counsel said it would be something… comity would be worked out between the two States.

Lisa S. Blatt:

Yes, they could work that out.

Yes.

But the… the… when the defendant is… is taken to New York and tried there, New York does have an obligation to return him to the sending State when that is done.

And then Ohio could try him.

John Paul Stevens:

May I ask you a question about the relationship to State law and Federal law here?

What if New York had a statute that said the waiver of this right has to be by… signed by the… by the defendant, the prisoner?

Would that be trumped by the agreement, or would that be enforceable?

Lisa S. Blatt:

If the State had…

John Paul Stevens:

And then my next question would be if the legislature could do it, why can’t the court of appeals do it?

Lisa S. Blatt:

Because it’s a Federal question and I don’t think States can amend Federal law.

And so, it has to be subject to uniform interpretation, but if… and so…

John Paul Stevens:

You think it’s a Federal question that would preempt any contrary New York…

Lisa S. Blatt:

Yes, on the scope of the waiver, States are… only could have procedural rules, but I think the… the question of waiver is one of Federal law in which there has to be a single, uniform interpretation.

William H. Rehnquist:

Well, certainly the New York Court of Appeals treated it as a Federal question, didn’t it?

Lisa S. Blatt:

Yes.

William H. Rehnquist:

It cited a bunch of other Federal cases involving IAD’s to decide whether this had been waived or not.

Lisa S. Blatt:

Yes.

In… in this case the New York Court of Appeals purported to interpret Federal law and… and saying that Federal law… you couldn’t waive it by consent.

Anthony M. Kennedy:

I still think we’ve got an unanswered question in my… what we’re trying to explore is whether or not Ohio has an interest in not having this time period waived, just as arguably there is under the Speedy Trial Act.

And so, there may be instances where there’s a very serious charge in Ohio.

He wants to avoid that.

So, he goes to New York and just continually waives and waives and waives.

Lisa S. Blatt:

Right.

Well, as… as a practical matter, there’s no reason to think that either the trial court or the prosecutor are going to just let the defendant say I don’t… I don’t care when I’m tried…

Anthony M. Kennedy:

Well, but that’s the whole reason for a time limit under the act.

Lisa S. Blatt:

Well, there are State speedy trial acts.

In the Federal system, there would be the Federal Speedy Trial Act, and the defendant would have to be… would have to be tried in accordance with those terms and then…

Antonin Scalia:

Justice Stevens… I have to attribute it.

The reality of the matter is that the sending State is probably delighted to have the receiving State feed and house the prisoner for as long as it wants.

Lisa S. Blatt:

Well, this agreement has been around since 1957 and I’ve never heard of States complaining about this problem.

But generally the… you know, our position is that even if there’s some public purpose to be served, that doesn’t suggest that the right is not waivable.

William H. Rehnquist:

When you’re scheduled for a trial in the Supreme Court of Monroe County, I don’t think the defendant could get away with simply saying, you know, I don’t want… I want to be tried 6 months from now.

Eventually the court is going to say, look, we’re going to set a trial date whether you want to waive anything or not.

This is going to be the trial date.

Lisa S. Blatt:

But our position is not the defendant has a right to a waiver.

The… the trial court always has discretion to… to not grant a continuance if there’s no cause.

But the… so, there’s no reason to think the trial court would… would do that.

And there’s certainly nothing to stop Ohio from calling up New York, saying, you know, can you speed this up.

Anthony M. Kennedy:

Well, of course, I think he would have a right to waive the IAD.

Anthony M. Kennedy:

I thought that’s the whole point of the case.

Lisa S. Blatt:

The court can reject the waiver.

Anthony M. Kennedy:

He… he may not have a right to delay trial indefinitely.

I’m sure he doesn’t.

The question is whether or not he has a right to waive the IAD, and I thought that’s the whole point of your case, that he does and he did.

Lisa S. Blatt:

Can I answer the question?

It’s more in the nature of a privilege.

The… the trial court is not bound to accept the waiver.

William H. Rehnquist:

Thank you, Ms. Blatt.

Mr. Shiffrin, we’ll hear from you.

Brian Shiffrin:

Mr. Chief Justice, and may it please the Court:

Both the language of the IAD and the public interests served by the statute, particularly the interests of the sending State, unrepresented in the courtroom in the receiving State, require that in IAD cases continuances, except those requested by or instigated by… by the defense, must be judged by the statutory good cause standard.

The defense response to a suggestion of a continuance by either the court or the prosecution is a factor to consider in determining whether the good cause standard was met.

The defense response could be an objection.

It could be silence.

It could be a concurrence, a statement of availability, or a consent.

The… if I can address the… the multitude of questions with respect to the interest of the sending State, I would respectfully suggest the interest of the sending State is… is greater than merely the situation where there’s also pending charges.

Sending States have an interest in where convicted felons…

William H. Rehnquist:

Did the New York Court of Appeals rely on the interest of the sending State in its opinion?

Brian Shiffrin:

The… they did not expressly, Your Honor.

William H. Rehnquist:

Well, do you think they did so in some other… ordinarily one thinks of an opinion as being express.

Brian Shiffrin:

The… I believe that the decision setting up a dichotomy between waiver occurring when there’s a request by defense counsel for a continuance and all of the circumstances subject to the good cause test is a reflection of the public policy interest.

If I can… if I can explain…

William H. Rehnquist:

Well, I… I asked you rather specifically not what the arguments were, but whether the New York Court of Appeals opinion relied on that.

Brian Shiffrin:

They did not rely on that.

No, Your Honor.

William H. Rehnquist:

Okay.

Brian Shiffrin:

The sending State’s interest in having their prisoners serve sentences in maximum security prisons in their State rather than local jails elsewhere is best evidenced by a number of things.

The provisions of the statute, Article III(e), requires an inmate who’s invoking the statute to sign a document agreeing to go back to that sending State as soon as the receiving State is finished.

Article V(e) requires the receiving State to send the individual back to the sending State immediately.

Brian Shiffrin:

In this case, Mr. Hill was sent back to Ohio immediately.

Indeed, in this… this Court’s decision in Mauro points out the principles and reasons behind the enactment of the IAD was that there should be an assurance that the prisoner who stands trial in one State is going to be returned in an orderly fashion.

There would have been a need for an IAD if sending States didn’t care and were simply glad to get rid of… of the guy.

One of the concerns sending States have…

Antonin Scalia:

Is he held, as you said… is he held in jail instead of in… in a penitentiary while he’s…

Brian Shiffrin:

While he’s awaiting trial, he’s in the local jail, which is a different set of circumstances.

Additionally, while in a local jail, a State prisoner from Ohio, in this case Ohio, is not able to take advantage of various programs for rehabilitation which affect the sending State because if that individual is eligible for parole and gets released to that sending State, it’s in the interest of the sending State to have that person better suited for rehabilitation.

All those reasons are… are reflected in a statute that says, fine, we’ll give you our guy, but you have to send him back to us quickly, and there are strict time requirements to be strictly enforced.

And Congress went a step further.

They enacted a very limited tolling provision, a tolling provision based on good cause as opposed to the tolling provision in numerous other statutes saying time periods could toll on either a good cause or consent.

The determination to not include the or consent language here I think is important because what’s being argued by the petitioner is that consent is a per se basis for giving up those rights.

But if time periods are… can, in fact, be per se lost by consent, there would not be a need for that language elsewhere.

William H. Rehnquist:

One thing that makes me pause about your argument, Mr. Shiffrin, is that the drastic effect of… of the result reached by the… an indictment for murder against this person was simply dismissed.

Brian Shiffrin:

This is very similar to speedy trial statutes in general, whether it’s the Federal Speedy Trial Act, New York’s, or Ohio’s.

There’s been a legislative determination that the best way to achieve the societal interests in the speedy disposition of the charges is to make sure that the State understands the very drastic remedy that will… that will occur if there’s not compliance…

Sandra Day O’Connor:

Well…

Brian Shiffrin:

and monitoring of the time requirements.

And therefore…

Sandra Day O’Connor:

Mr. Shiffrin, what… what if the defendant and his lawyer both went in the courtroom when the trial date was being set and expressly said, both of them, to the court, we waive any right to be tried within the 180 days?

It’s okay if we go to trial May 1.

Let’s… let… how about that?

Is that okay?

Brian Shiffrin:

The answer to your question depends upon the context of what was said before that, and let me explain what I mean by that.

William H. Rehnquist:

Can’t… can’t you answer Justice O’Connor’s hypothetical question and then explain?

Sandra Day O’Connor:

The trial court says a convenient date for trial is May 1.

Now that date is beyond the 180 days.

The defendant and his lawyer say, we know that’s beyond the 180 days.

We waive that and May 1 is okay.

Brian Shiffrin:

It’s my position… and what was different I believe in the second time the question was asked is we found out what was said beforehand, which is the court has… the court is proposing a delay.

And at that point, that continuance, consented to expressly…

Sandra Day O’Connor:

It’s not a continuance.

We’re setting the trial date for the first time.

The court says May 1.

That is beyond the 180 days.

Everybody knows that.

Defendant and his counsel say okay.

Now, is that going to be sufficient as a waiver?

Brian Shiffrin:

No, it is not.

Sandra Day O’Connor:

No.

Brian Shiffrin:

And the reason I say that is, first of all, I disagree with your predicate.

I believe all adjournments of court proceedings are a continuance of that case.

The… in determining whether the adjournment and continuance is… is to be counted against the 180-day…

Sandra Day O’Connor:

Well, if there’s never been a trial date set, how could it be a continuance?

Brian Shiffrin:

There might not have been a trial date set.

There had been prior court proceedings.

There… the court proceedings keep on getting continued.

Indeed, the… they brought back this case on January 9th, 1995 nearly 400 days after the first court appearance in this case, after… after the… the time period began.

The…

William H. Rehnquist:

Well, that… that may be New York practice.

You’re certainly more familiar with it than I am.

It certainly wasn’t the practice in Arizona to talk about a… I agree with Justice O’Connor who, of course, herself practiced in Arizona.

[Laughter]

William H. Rehnquist:

You don’t refer to a continuance unless you’re talking about a change of a trial date that has already been set.

But this has to have national application, and the word continuance is used.

Brian Shiffrin:

The… the statute sets forth a very strict time requirement and a strict enforcement mechanism.

As you point out, by the way, that the penalty of dismissal, Your Honor, is different in Federal court than it is in State courts because the IAD has a different provision in Federal courts where there’s not dismissal with prejudice, as opposed to the law in New York State.

But going back… going back to the question, the… by… by only allowing extensions of that very strict time period, when there are continuances on good cause shown, there’s a… there’s a statement by the legislation… by the legislature that the best way to achieve the balance of the interests of the defendant, the interests of the receiving State and the sending State, is to… is to limit the circumstances in which… in which those time periods can be lost.

The reason we distinguish the situation where there’s a request for a… for a delay by the defendant is twofold.

First of all, it’s simply unfair and unjust for defendant to ask for something, get it, and then be able to complain about it.

But more importantly, the public interest of… served by the IAD, the interest of the sending State, would be lost if defendants could do that because they would be encouraged to delay cases.

Brian Shiffrin:

And the… it’s important to keep in mind the unrepresented interest of the sending State as a limiting factor as to the circumstances in which waiver applies.

Sandra Day O’Connor:

Well, we don’t have any objection by Ohio in this case, do we?

Brian Shiffrin:

There’s… Ohio wasn’t a party in the courtroom.

That’s… that’s the problem.

That’s why we need to have a limit on… on waiver.

You have in the courtroom…

Anthony M. Kennedy:

So, let… let me see if I can understand your position.

Counsel for both parties and the defendant are in court, and the court said, now, I know that the 180 days is going to run in… in April.

Based on my conversations with counsel, it would be more convenient for both of their calendars to try the case beyond the 180 days.

Do you waive… Mr. Prisoner and your counsel, do you waive the IAD?

And they say yes.

You’re telling me that the court must say, well, even if you do, I cannot give you a continuance unless I… or an extended date unless I find good cause for doing so.

I cannot let you opt out of the IAD.

I must find that there is good cause as the IAD finds that… defines that for extending this trial date.

Brian Shiffrin:

If…

Anthony M. Kennedy:

That’s your position.

Brian Shiffrin:

There’s one… one provision in that hypothetical which… which I call your attention to to explain my answer.

In your hypothetical, you talked about this being for the convenience of defense counsel.

If this was a request by defense counsel, it’s one thing.

Otherwise, in this very case, in July of 1994, that’s precisely what happened, and the judge ruled ultimately that that continuance, the July ’94 continuance, with consent of the defendant, was on good cause.

In this case, the district attorney’s response…

William H. Rehnquist:

Mr. Shiffrin, did this… the trial court dismissed the indictment, you say, in 19… or the lower courts didn’t dismiss the indictment.

Brian Shiffrin:

That’s correct, Your Honor.

William H. Rehnquist:

Oh, so the prisoner was in New York for… for several years.

Did Ohio ever request his return during this time?

Brian Shiffrin:

Yes.

The prisoner was not in… well, he was in New York State for about a year and a half.

As soon as the trial was over, Ohio requested him to be returned there, and he’s serving his sentence in Ohio, which is further evidence of the interest of Ohio and other sending States.

They want their prisoners to serve sentences in their prisons and… which is why…

William H. Rehnquist:

Well, but if he had been… if he had been… if he were tried in New York and he could be sent back after that, could he not?

William H. Rehnquist:

I mean, it’s not as if Ohio was asking that this murder indictment be dismissed.

Brian Shiffrin:

Ohio doesn’t have to ask that under the statute.

Before they… before they gave up control of their prisoner, they were entitled to rely on the statute that says 180 days, we’re getting him back, unless there’s exceptions… unless there’s continuances for good cause shown or if there’s waiver by means of defense request.

William H. Rehnquist:

Okay.

180 days to go to trial in the supreme court.

Then supposing that he’s convicted and he appeals, he’s going to be in New York for a number of years.

It’s not…

Brian Shiffrin:

The way the statute reads, as soon as the trial is over, he’s required to be sent back to the sending State.

He doesn’t have a right… he does not have a right under the statute to stay in New York during that appellate process.

William H. Rehnquist:

So that he… he is appealing his case in New York, but he… he has to go back to Ohio?

Brian Shiffrin:

That’s correct.

And Mr. Hill is in Ohio and has been in Ohio for a number of years now, serving his Ohio sentence.

He’s not serving the New York sentence.

The New York sentence was vacated last year by the court of appeals, but during the period between conviction, appeal to the appellate division in New York, and appeal to the court of appeals, he was not in New York serving the New York sentence.

He was in Ohio because Ohio is entitled to exercise their right to have custody of their prisoner.

Ruth Bader Ginsburg:

But, Mr. Shiffrin, you’ve conceded that the defendant can trump that by requesting.

Brian Shiffrin:

Yes, and there’s two reasons for that.

Ruth Bader Ginsburg:

So, this defendant comes first and… and not the State of Ohio.

But you talked about speedy trial provisions.

And do you agree with opposing counsel who informed us that, unlike the Federal act, most State acts do allow for waiver in circumstances like this, where counsel says, fine, we’ll have the trial when the judge says?

Brian Shiffrin:

Actually I do not agree with that.

I believe most speedy… most speedy trial statutes are written in a manner similar to the Federal Speedy Trial Act, which… which places a burden of compliance on the State and makes… limits greatly the circumstances in which the defendant can cause delay in… in the case.

Ruth Bader Ginsburg:

But… but the one big difference is that there is an explicit provision for waiver and two situations in which you can ask for waiver.

One can imply from that that that’s it, where opposing counsel started out here with the point that ordinarily it’s presumed that a statutory right is waivable.

Brian Shiffrin:

That is correct.

In Mezzanatto, this Court held that statutory rights are presumptively waivable.

However, in Mezzanatto, this Court instructed that the courts must examine both the language of a statute and… and the public interests and policies served to determine how waiver applies to a particular statutory right.

With respect to the language of the statute, setting forth very strict time requirements, very limited exceptions as to when those time requirements could be expanded and phrased without the or consent language that Congress has used in, again, almost a score of other statutes, that the language suggests… and also I should add, the… Article IX says this statute is to be liberally construed…

William H. Rehnquist:

But your interpretation just leaves it open to the defendant to sandbag, to appear to give consent the way this defendant did.

In fact, the attorney explicitly… and then to come in later and say, well, look, it’s too late.

William H. Rehnquist:

Dismiss my murder indictment.

Brian Shiffrin:

A few… a few answers are needed with respect to that question, Your Honor.

First of all, in this particular case, when nearly 400 days had passed between the commencement of the IAD period and the January 9th appearance, no… and none of which was… was clearly already determined to have been calculated under the statute, it’s impossible to… to say that any attorneys were purposely seeking delay to avoid the consequences.

Indeed, it just is possible on this record where we know that, Mr. Huether, the trial DA, was otherwise… was otherwise occupied… he wanted a delay and was hoping that without mentioning the IAD…

William H. Rehnquist:

Yes, but the defendant at least consented to it.

Brian Shiffrin:

But the reason that the statutory test is not the intent of the defense counsel or the district attorney, but rather whether good cause was shown, is because just like with the Federal Speedy Trial Act where consent in the Federal Speedy Trial Act does not result in waiver, is we want to have…

William H. Rehnquist:

But you can waive statutory rights.

You’ve agreed to that.

Brian Shiffrin:

Yes, and…

William H. Rehnquist:

The statute doesn’t have to say so.

Brian Shiffrin:

We’re not disagreeing at all.

But the question is under what circumstances can a particular statutory right be waived.

And the reason we argue that… that with respect to this statute and these statutory rights, the line for waiver should be with continuances at the request of the defense is… is again because to allow those type of requests… requests of continuances to… to escape review would be to encourage delay and therefore defeat the public policy interests.

But all other types of requests should… should be… the onus should be put on the State to determine whether or not there’s good cause shown.

William H. Rehnquist:

Have any of the States filed amicus briefs here supporting your position because they might be in the position of… of a sending State?

Brian Shiffrin:

No, Your Honor.

Antonin Scalia:

I don’t understand why your… if you do, indeed, and we should, indeed, have a concern for the sending State, I don’t know why it wouldn’t… wouldn’t extend to continuances at the request of the defendant as well or to, you know, extensions at the request of the defendant.

Why should that make a difference?

Brian Shiffrin:

The… the reason that… that I believe the line could be drawn at continuances at the request of the defendant is if you allow continuances at the request of the defendant to actually delay… delay proceedings, you’re… you’re encouraging defendants to delay proceedings.

David H. Souter:

Why is it that they want to delay these proceedings?

That’s just a factual issue that I guess I’m not sure that I’m clear on.

He’s behind bars whether he’s in New York or whether he’s in Ohio.

I mean, is it just that it’s more fun to be getting ready for trial?

Brian Shiffrin:

The… first of all…

David H. Souter:

Why does he want to stay…

Brian Shiffrin:

We’re not suggesting that’s what occurred in this particular case.

However, in some cases…

David H. Souter:

No, but you’re suggesting as a kind of a systemic way that most… or a lot of defendants are going to want to stay in… in the requesting State.

Brian Shiffrin:

The advantage of… of delay in trials in general… and it’s something recognized in the speedy trial statutes… is evidence could be lost, witnesses could…

David H. Souter:

So, it’s just the delay.

David H. Souter:

They’re not enjoying themselves.

They just want to string it out.

Brian Shiffrin:

I believe that’s… that’s one of the primary motivators for passing the speedy trial statutes which have addressed remedy of dismissal to ensure the State keeps track of the time and… and meets their burden of complying with the statute.

But…

Anthony M. Kennedy:

Suppose in this case the IAD was openly discussed by all counsel and by the court.

And the court said, you know, I’ve got… got a problem here.

We’ve got… excludable time ends after this proposed trial date.

Could the trial judge on this record have made a finding consistent with the act that would have allowed him to set the trial… the May trial date?

Brian Shiffrin:

Yes, Your Honor.

We are not disputing that… the facts that you posited or in fact what occurred in this case could have been considered under a good cause analysis…

Anthony M. Kennedy:

Well, then it seems to me that a waiver in that context makes a lot more sense because the defendant could say, Your Honor, we waive the necessity of those findings based on this… the situation before us.

It’s… it’s likely that finding could be made.

You don’t need to go through that step.

Brian Shiffrin:

I… I would… I would respond that by making that statement, effectively the defendant is saying, I want this delay, and if the defendant is saying that, he has waived his right to complain.

That is not what occurred here.

By the way, in context what occurred here is the district attorney was asked whether he was available, and… and the answer was that would fit his… his calendar.

And in that context, the defense attorney was asked how was that with defense counsel, and the response was, that’s fine with me.

That’s a statement of availability, not desirability.

I don’t think it’s critical on the issue of waiver, but rather whether good cause was found because depending on the circumstances, the defense response is a factor to consider and… and a stronger response, for instance, the response that occurred in this case a year earlier or 6 months earlier in July, I consent to the delay, clearly is a strong factor in finding good cause.

William H. Rehnquist:

You think… you think I consent to the delay is different from that’s fine with me when you’re… when the judge has proposed a trial date?

Brian Shiffrin:

The… one of the problems with the language, that’s… that’s fine with me, in this context it could very well have meant I’m free too, Your Honor.

I’m also available.

There’s… there is ambiguity as to what was what was intended.

William H. Rehnquist:

But these sort of exchanges take place all the time in courtrooms.

And, you know, we don’t get out a Webster’s unabridged dictionary every time to figure out what it means.

Brian Shiffrin:

And I’m not suggesting that there’s a need to.

To the contrary, I’m suggesting there’s a simple rule.

If the defendant has not requested the… the delay, there’s not waiver.

Rather, let’s consider whether this delay meets the good cause test before… before a judge grants it.

William H. Rehnquist:

Well, but that simply goes contrary to the rule that statutory rights can be waived.

Brian Shiffrin:

Except that in the same decision, Mezzanatto, this Court which, you know, articulated that, the Court went through a very lengthy analysis of the public interests served by that rule because this Court recognized that, depending on the public interests that are served, there… there could be limits on… on the presumption of waivability.

David H. Souter:

Yes, but in Mezzanatto, the statute in fact… I forget whether it was the statute or the legislative history now… articulated that public interest.

And… and that’s what we don’t have in… in this case, and this is… that’s another distinction between this case and the Federal speedy trial statute.

Brian Shiffrin:

The statute itself, in the IAD, has a provision, Article IX, saying liberally construe this statute to effectuate its purposes.

The purposes were… for the IAD were set forth in a number of documents which are… are incorporated in this Court’s decision in Mauro.

And one of those purposes is to ensure that prisoners released to stand trial in… in another jurisdiction will be returned to that jurisdiction promptly.

The… we have that as part of… of the history in this statute.

The decision by New York…

Sandra Day O’Connor:

Well, do you think there’s no public interest in seeing to it that the defendant is tried of these very serious crimes in New York?

Brian Shiffrin:

I think there’s…

Sandra Day O’Connor:

I… I would think that may be an overriding public interest here where you can find circumstances in which you can say there was a waiver by the defense counsel of the… the period of time.

I would think the public interest would fall on the side of allowing New York to conduct those proceedings.

Brian Shiffrin:

I… I agree that receiving States have a very strong interest in the speedy disposition of their… of their charges, which is why under this statute, just like the New York speedy trial statutes, there’s a strong incentive for prosecutors to comply with speedy trial…

William H. Rehnquist:

Well, not just a speedy disposition, but a disposition.

You know, to say that if you don’t get it done in 90 days, you dismiss a murder indictment is pretty strong medicine.

Certainly New York has an interest in bringing to trial, in a fair trial and reasonable time, a person charged with murder, and getting a verdict from the jury either guilty or not guilty.

Brian Shiffrin:

I would suggest that strong interest is reflected in the legislative determination in New York, that by dismissing an occasional case, they will achieve that goal in more… in many more cases of speedy disposition of cases.

And that again is consistent with the speedy trial statutes in general.

Some cases get dismissed, but more cases, as a result, are tried speedily because prosecutors and courts are going to be wary of allowing time periods to go unnoticed.

What happened here was New York State dismissed a New York prosecution.

If in fact, the line for… for what constitutes waiver is not as I’m proposing and as the New York Court of Appeals held, requested delay, but even if the line is something else, if New York or any other State wishes to impose upon itself a higher standard, it effectuates the purposes of the act.

The interest…

William H. Rehnquist:

But there is no indication the New York Court of Appeals did wish to impose on itself a higher standard.

The cases it cited are all Federal cases from other States.

Brian Shiffrin:

That’s correct, Your Honor.

My point in this regard is if… if a State wished… in fact, wanted… wanted to do so, that would be proper because what’s required for uniformity is a floor as to what circumstances are not… are not permitted.

William H. Rehnquist:

Well, yes.

If the New York Court of Appeals had said, we think this is a State law question, not a Federal question, and we are therefore going to say that it can’t… it is not waived under these circumstances, we would then have before us the question of whether… the IAD, being a Federal statute, as we’ve held in a case… New York can do that.

But we don’t have that question here because New York didn’t try to do that.

Brian Shiffrin:

However, if… if this Court were to adopt a different standard than New York’s, I would urge that the case at least be remanded to allow New York the opportunity to determine under New York’s version of the IAD, they want to impose a higher obligation upon themselves…

William H. Rehnquist:

They had that opportunity before and didn’t choose to take it.

Brian Shiffrin:

I… I would suggest that their decision… setting a standard of request reflects a determination of New York policy that their… New York’s interests, as well as the interests of the sending State and Mr. Hill, are served best by having strict time requirements to be strictly… strictly applied.

Ruth Bader Ginsburg:

If we did what you ask, wouldn’t we have to first decide that, yes, New York can do this compatibly with the Federal legislation?

Brian Shiffrin:

If…

Ruth Bader Ginsburg:

And that’s a question that hasn’t been argued and briefed.

Brian Shiffrin:

The… if… if the Court were to… were to reject my… my contention that New York was correct with respect to the waiver standard being at request not… not at consent… again, I should point out in this case, the trial DA did not argue waiver.

The trial DA argued this was good cause.

And this… this very well might have been a factor… the dialogue that occurred on January 9th might have been a factor in a good cause determination.

That argument has been abandoned.

What’s left here is in a situation where the petitioner has chosen not to rely on the statute, is seeking… is seeking to rely on waiver analysis, and it’s our position that waiver analysis, with respect to the IAD, exists and occur… and… and must exist in a limited fashion in order to ensure that not only the interests of Mr. Hill and other defendants are met, but also the interests of the… of the two States.

The interests of not only… I’ve discussed the sending State, but the interests of the receiving State are not always adequately represented by trial prosecutors.

That’s reflected in speedy trial statutes that allow for dismissal, even when there’s no objection by defendants, as a means to ensure that the prosecutors know that they have a burden of compliance.

This statute puts a burden of compliance on… on a State.

The only burden the statute puts on the defendant, in this case Mr. Hill, was to invoke the statute, which he did in writing, the document in writing, actually had a form for… for the defendant to sign.

There’s no place for… for counsel to sign.

He invoked that statute in writing.

He… at that point as the statute is written, puts the burden of compliance solely on the State.

The State apparently neglected its burden and chooses not to rely on statutory language, but instead is hoping that the… that this Court were to adopt a waiver analysis which has no limits.

The reason I say that it has no limits, it’s not clear from the petitioner is he’s saying is consent the test.

What constitutes consent?

Is it concurrence?

Is it… is it failure to object?

I would suggest an easy test which assures that the goals of the IAD are met as a test adopted by New York State which is if there was not a defense requested or initiated continuance, then consider whether the… the continuance that was granted was a good cause showing continuance which would justify extending the statutory time periods.

By doing that, by keeping the statute… statutory waiver provisions narrow, what we do is achieve the goal of assuring the public interests of both sending States receiving… and receiving States are met.

Thank you, Your Honors.

William H. Rehnquist:

Thank you, Mr. Shiffrin.

Mr. Mastrocola, you have 4 minutes left.

Robert Mastrocola:

Thank you, Your Honor.

If I could perhaps clear up a couple of things.

Waiver of a Federal law or a Federal right is a Federal question.

Robert Mastrocola:

The IAD is a Federal law.

We need uniform interpretation.

That’s why this Court, in fact, has taken some previous cases to resolve particular issues of interpretation of the IAD instead of letting 50 different States have their own interpretations.

Whether there are State procedural rules in terms of appellate practice and whether issues can be raised, that deals with forfeiture.

That’s a separate issue.

That has nothing to do with what the scope is of waiver of the IAD as a Federal standard.

With respect to the questions about what if Ohio has a charge, I just wanted to suggest one thing.

If in fact the sending State also has criminal charges pending, as I suggested before, it might be a matter of comity between the States.

If the defendant initiated this procedure and wanted to go back to New York, and Ohio insisted that they wanted to try them there, I think very clearly there is a provision under the IAD which says the time is tolled whenever a defendant is unable to stand trial.

And that could very easily be invoked based on some sort of agreement between the States because even though he’s invoked it here, Ohio wants to take precedence.

They’ll just delay until that’s done in Ohio.

So, that can be invoked right under the IAD.

That’s not a problem.

As far as the sending State’s interest in this prisoner and about, well, Ohio wanted this individual back as soon as possible, the statute itself requires it.

As soon as the proceedings are terminated in the receiving State, he has to go back to the sending State.

So, this wasn’t a matter of Ohio contacting New York regularly and say, we want this guy, we want this guy, you know, when you going to be done.

He just goes back automatically.

John Paul Stevens:

May I ask just one question?

I notice in the joint appendix there are a series of forms that are Form III, Form VI, and Form so forth that are prepared under the agreement, the statute.

Is there… is there a form that’s been prepared to deal with the situation we have before us in this case?

See, one of the… I think the strongest argument against your position is that if you had a form, you always get the lawyer to sign the form, you won’t have this argument again about whether there’s a waiver.

But I guess there isn’t a form…

Robert Mastrocola:

Well, because what happens is the prisoner is always in another State when he activates these proceedings.

He just… he’s given a choice and he wants to tell the sending State that… or the receiving State that he wants to face these charges.

That’s all done while he’s in prison.

Once he comes back into the other State, the receiving State, then it starts like a regular criminal prosecution.

And I think in response to one of the other questions about counsel, I don’t believe there’s any bar to the State assigning counsel in the receiving State if he wants to consult with the defendant about whether he wants to initiate this process or whatever.

His rights can be protected if… if necessary or if the court wants to.

That’s not necessarily required while he’s still in Ohio…

John Paul Stevens:

I gather your answer is there isn’t really a form such as I’m…

Robert Mastrocola:

There’s no form, no.

But there’s no form required for waiver of a right, a statutory right, that I’m aware of in any other context.

John Paul Stevens:

Yes, but if you had such a form and executed, we wouldn’t have these problems anymore.

Robert Mastrocola:

Well, you’ve got the distinction between when he’s in prison and when he’s starting the process and then what happens sometime later once he’s been transferred to the other State and now he’s into the process of the criminal prosecution in that State.

The sending State, to the extent it has an interest in rehabilitation, let’s not forget that rehabilitation starts with the defendant.

So, it’s not just the interest of the sending State in saying, we want to get this prisoner back here to rehabilitate him.

It’s got to be dependent on what that prisoner’s state of mind is.

That’s what the whole focus of this IAD is, and that’s why it gives the prisoner the right, if he wants to, to decide I’m not going to stay in prison, I’m going to go back.

It gives him the choice.

And I would submit that in terms of this public policy, the proof is in the pudding in the sense that the IAD has been with us now for some 40 years.

The courts have uniformly held these rights waivable, and there has been no indication by the States, no outcry, that somehow this is impeding the sending State’s interest.

There has been no rush to drop out of the IAD, and in fact, over the years, despite this waivability principle, States have continued to join to the point where now every one but two States are party to this agreement.

And again, just for clarification, we’re not talking about a right to waiver.

We’re talking about…

Antonin Scalia:

Who are the two States, just… just out of curiosity.

Robert Mastrocola:

Louisiana and Mississippi, and there may be something… some joke there, but I don’t want to say it at this point.

[Laughter]

Basically…

William H. Rehnquist:

Thank you, Mr…. thank you, Mr. Mastrocola.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.