“Hi, today we’re sitting with Andrew Dósa, criminal defense attorney in Alameda County, California, and the surrounding counties in the Bay Area of course. And Andrew, there was an interesting article that came out about 45 days ago that said the — actually, it was an article quoting the Alameda County Public Defender’s office that said, in this Coronavirus pandemic period, that the court system is extending the, what I would consider constitutional requirements for some of their court proceedings. And does that mean — and I will detail it here in moment, but my question is: Does that mean it’s violating our constitutional rights? And what happens?
So essentially they’re talking about they’re dramatically restricting a right to a speedy trial by extending it beyond 30 days. And some of the previous requirements by our Constitution are holding a preliminary trial within 10 days, defendant’s right to a trial within 30 days, and charged with a felony, they can be taken before a judicial officer in 48 hours. And all of a sudden now, that’s been extended because of the Coronavirus. Now, the public defender said, well, wait a minute, if you’re going to do that, release them.
So is that our only alternative? Because I know the Constitution has been suspended — parts of it — temporarily, in times of war and Lincoln and Roosevelt. But I don’t know if this equates to that. But is this actually suspending some of our constitutional rights?”
“Well, the answer is: Absolutely it is. And I would be critical of FDR and I would be critical of Abraham Lincoln for their actions. Abraham Lincoln suspended habeas corpus, which was, short and sweet, the right of a defendant to be free of incarceration and to be out of custody. Rather than to be stuck there without any freedom, without any access to a court ruling on his or her condition and whether they are held improperly.
So let’s talk about speedy trail rights. In a misdemeanor, there are two days. There’s a 30-day and a 45-day. So what happens is that the arraignment, when you’re first making your appearance before the court, you as a defendant can demand a speedy trial, and your trial should be held within 45 days. If you waive your right to a speedy trial, and then later withdraw your waiver, you have to have your trial within 30 days of that date.
In a felony, there are two tiers in a felony. The first one is where you go up toward a preliminary hearing, you have a right to the preliminary hearing within 10 court days. It doesn’t count holidays, it doesn’t count weekends. And you also have a right to have it within 60 calendar days. So now what we have is, at this point, the courts are sensitive about having preliminary hearings conducted in a timely manner, although there is a challenge about that one as well.
What do the defendants do? Do they waive their right if they are getting concessions? Defendants who waive their rights, if they are allowed to get out because they are among that group of inmates who are less of a risk and it’s worse for them to be in custody and possibly exposed, and so they may waive speedy right and then their release, but that obviates the potential constitutional rights violation.
So now let’s go past the preliminary hearing. After that, you have a right to a trial within 60 days if your arraignment at the trial court level, in a felony. And now what we have is the Chief Justice of the California Supreme Court ruling that the courts are going to be closed. And she calls the closing of these courts essentially a forced holiday. So if the courts are closed for 30 days, your constitutional rights aren’t violated, because those don’t count toward your timing. For example, on the 10 day rule with the preliminary hearing, because it’s a holiday.”
“Well, that’s just verbiage. Nomenclature.”
“Of course it is. And so we love judicial fictions. We love legal fictions in the law in some circumstances, and unfortunately, in this situation, because I’m a defense attorney, I’m offended by it, because my clients have a right to a speedy trial. What does that mean? Well, there is a practical problem. What about jurors that would be uncomfortable about their exposure when they come in and are involved in voir dire, or maybe they sit in a jury? Well, we can handle that. We can put the spaces between the seats in the jury box, six feet away. Of course, we’d have to figure out the courtroom a little bit, but there is no reason why they cannot serve on a jury and allow a defendant to have a speedy trial right.
So there are some logistical issues. But ultimately, I think it looks like this: If we have a Constitution that says, ‘Our government cannot deprive us of our liberties…’ Remember, life, liberty, and the pursuit of happiness. Well, the pursuit of happiness is another matter, but let’s just say ‘liberty.’ If I have the right to be free, not in custody for longer than I’m supposed to, until I can get my chance to be heard, right? To have my case heard by a jury. Then that is a principle that doesn’t have an asterisk that says, oh, whenever it’s inconvenient for the government to manage your trial. It’s a pretty black and white rule. You get your speedy trial rights, and for us to somehow pause it artificially is a gross violation of the principles of our Constitution.
Remember, Ray, the point of our Constitution is to give us a foundation so that we know it’s not humans that are going to take over, it is the bedrock foundation of the rule of law. We are a nation of laws, and not a nation of men. That’s the phrase. If we were a nation of men, then we would be dictators. Women can be dictators, men can be dictators, whoever the political power, if they are not checked by our Constitution. They whimsically can do whatever they wish, right? And unless they are bound by laws. And if we don’t have laws binding our political leaders, then all you have is the political will of an opponent to keep them from acting improperly. And of course, then the problem is the person who exercises will to overcome a tyrant is probably a tyrant himself.
So in any situation like that, you don’t have the foundation principles of a Constitution that make it really clear, these are how we’re going to treat our citizens. If you look at the Bill of Rights, by the way, the Bill of Rights is a blend between one of two things: A specific express statement of the rights of an individual, or alternatively, an express limitation on the power of our government. You have the right to speech. Now we understand it’s not an absolute speech. You can’t say insightful words that you know are going to get somebody who is vulnerable to the power of your persuasion. If they go and shoot somebody, you can’t do that. You can’t say that. Incitement is improper, all right? But the concept you can express, because that’s the right to speech.
Contrast that with the second of the two types of rights that we have, and the second one is the freedom from government intrusion. So let’s look at it this way: You have the right to be free from an unreasonable search or seizure. And that means, if you’re driving down the street and the police officer smells marijuana, because marijuana is lawful for you to possess, that police officer does not have reason to believe the mere smell of marijuana means that you’re committing a crime. In fact, smelling marijuana — and you did smoke when you were lawfully permitted to — means that officer leaves you alone. There’s no reason to search. But if the police officer then says, ‘I’m going to search your trunk,’ and gets into the trunk and finds something, he has not exercised a reasonable intrusion into your freedom from a search in a trunk, right? Search of a trunk is permitted in certain circumstances. You have to have each of the appropriate elements or circumstances in play for a search to be extended into a trunk.
So we need to have the foundation of our Constitution always present. We cannot simply just say, oh, this is an exception to the rule. Because then anything becomes an exception to the rule at some point. It only takes one situation, then you have another situation, then you have another situation.
And I’ll just offer this: The whole problem with the pandemic that we have now, is we have certain experts that if you read their statements carefully, they are saying, ‘We might have a bigger problem.’ So let’s not open up. Well, the problem is, if we don’t open up, then we will all be collapsing under the financial weight, right? It will be around the world, starving. I mean, there is an article in the New York Times, April 22nd of this year, that said, ‘Experts say there may be as many as 120 million people pushed to the brink of abject starvation,’ because the economic engine that has fueled so much progress and has eliminated poverty like we’ve never seen before…it’s going to be gone. No one makes money, no one can buy food. If you’re looking at India, for example, where there has been great progress made, because of economic freedoms, because a marketplace does exist. If those people do not have opportunities to make money, even if they are just day laborers, they cannot afford food. And they are already at a margin, all right? They are already at the edge of vulnerable. But they are making a go of it, and now they don’t have money, and they are not having money six weeks, now moving toward two months.”
“Well, that’s one of the reasons that…if you could do A, what restricts you from doing B, or C, or D, and where does it end?”
“Right. Well, that’s the problem. If you think that it’s appropriate to round up Japanese citizens because we’re at war with Japan, without paying any attention to the threat that that individual or each of those individuals poses, then you’ll round them up. That’s what FDR did. If you are worried about the political ramifications of a strong opposition, you suspend habeas corpus, like Lincoln did. And then if you think that you have the right to shut down California because you’re Gavin Newsom and you want to avoid potential problems, you know, then you shut down the state. You order me to be at home. And I’m violating that order, because I’m here at my office.”
“I think you’re part of the essential businesses, by the way.”
“Well, I hope so.”
“Yeah. Well, thank you very much for this perspective. We’ll stay in touch on that, because I suspect every week we’re going to find out new information and we’ll talk again on this.”
“All right. Thank you, Ray. Thanks for asking me to talk to you.”
“Thank you, bye.”
“Bye.”
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Video – Attorney Andrew Dósa Questions If Our Constitutional Rights Were Violated When Alameda County Extended Criminal Court Hearing Deadlines During The Coronavirus Pandemic?
Home » Video » Legal Commentary » Video – Attorney Andrew Dósa Questions If Our Constitutional Rights Were Violated When Alameda County Extended Criminal Court Hearing Deadlines During The Coronavirus Pandemic?
Video – Attorney Andrew Dósa Questions If Our Constitutional Rights Were Violated When Alameda County Extended Criminal Court Hearing Deadlines During The Coronavirus Pandemic?
Ray Hrdlicka – Host – Attorneys.Media
“Hi, today we’re sitting with Andrew Dósa, criminal defense attorney in Alameda County, California, and the surrounding counties in the Bay Area of course. And Andrew, there was an interesting article that came out about 45 days ago that said the — actually, it was an article quoting the Alameda County Public Defender’s office that said, in this Coronavirus pandemic period, that the court system is extending the, what I would consider constitutional requirements for some of their court proceedings. And does that mean — and I will detail it here in moment, but my question is: Does that mean it’s violating our constitutional rights? And what happens?
So essentially they’re talking about they’re dramatically restricting a right to a speedy trial by extending it beyond 30 days. And some of the previous requirements by our Constitution are holding a preliminary trial within 10 days, defendant’s right to a trial within 30 days, and charged with a felony, they can be taken before a judicial officer in 48 hours. And all of a sudden now, that’s been extended because of the Coronavirus. Now, the public defender said, well, wait a minute, if you’re going to do that, release them.
So is that our only alternative? Because I know the Constitution has been suspended — parts of it — temporarily, in times of war and Lincoln and Roosevelt. But I don’t know if this equates to that. But is this actually suspending some of our constitutional rights?”
Andrew Dósa – Criminal Defense Attorney – Alameda County, CA
“Well, the answer is: Absolutely it is. And I would be critical of FDR and I would be critical of Abraham Lincoln for their actions. Abraham Lincoln suspended habeas corpus, which was, short and sweet, the right of a defendant to be free of incarceration and to be out of custody. Rather than to be stuck there without any freedom, without any access to a court ruling on his or her condition and whether they are held improperly.
So let’s talk about speedy trail rights. In a misdemeanor, there are two days. There’s a 30-day and a 45-day. So what happens is that the arraignment, when you’re first making your appearance before the court, you as a defendant can demand a speedy trial, and your trial should be held within 45 days. If you waive your right to a speedy trial, and then later withdraw your waiver, you have to have your trial within 30 days of that date.
In a felony, there are two tiers in a felony. The first one is where you go up toward a preliminary hearing, you have a right to the preliminary hearing within 10 court days. It doesn’t count holidays, it doesn’t count weekends. And you also have a right to have it within 60 calendar days. So now what we have is, at this point, the courts are sensitive about having preliminary hearings conducted in a timely manner, although there is a challenge about that one as well.
What do the defendants do? Do they waive their right if they are getting concessions? Defendants who waive their rights, if they are allowed to get out because they are among that group of inmates who are less of a risk and it’s worse for them to be in custody and possibly exposed, and so they may waive speedy right and then their release, but that obviates the potential constitutional rights violation.
So now let’s go past the preliminary hearing. After that, you have a right to a trial within 60 days if your arraignment at the trial court level, in a felony. And now what we have is the Chief Justice of the California Supreme Court ruling that the courts are going to be closed. And she calls the closing of these courts essentially a forced holiday. So if the courts are closed for 30 days, your constitutional rights aren’t violated, because those don’t count toward your timing. For example, on the 10 day rule with the preliminary hearing, because it’s a holiday.”
Ray Hrdlicka – Host – Attorneys.Media
“Well, that’s just verbiage. Nomenclature.”
Andrew Dósa – Criminal Defense Attorney – Alameda County, CA
“Of course it is. And so we love judicial fictions. We love legal fictions in the law in some circumstances, and unfortunately, in this situation, because I’m a defense attorney, I’m offended by it, because my clients have a right to a speedy trial. What does that mean? Well, there is a practical problem. What about jurors that would be uncomfortable about their exposure when they come in and are involved in voir dire, or maybe they sit in a jury? Well, we can handle that. We can put the spaces between the seats in the jury box, six feet away. Of course, we’d have to figure out the courtroom a little bit, but there is no reason why they cannot serve on a jury and allow a defendant to have a speedy trial right.
So there are some logistical issues. But ultimately, I think it looks like this: If we have a Constitution that says, ‘Our government cannot deprive us of our liberties…’ Remember, life, liberty, and the pursuit of happiness. Well, the pursuit of happiness is another matter, but let’s just say ‘liberty.’ If I have the right to be free, not in custody for longer than I’m supposed to, until I can get my chance to be heard, right? To have my case heard by a jury. Then that is a principle that doesn’t have an asterisk that says, oh, whenever it’s inconvenient for the government to manage your trial. It’s a pretty black and white rule. You get your speedy trial rights, and for us to somehow pause it artificially is a gross violation of the principles of our Constitution.
Remember, Ray, the point of our Constitution is to give us a foundation so that we know it’s not humans that are going to take over, it is the bedrock foundation of the rule of law. We are a nation of laws, and not a nation of men. That’s the phrase. If we were a nation of men, then we would be dictators. Women can be dictators, men can be dictators, whoever the political power, if they are not checked by our Constitution. They whimsically can do whatever they wish, right? And unless they are bound by laws. And if we don’t have laws binding our political leaders, then all you have is the political will of an opponent to keep them from acting improperly. And of course, then the problem is the person who exercises will to overcome a tyrant is probably a tyrant himself.
So in any situation like that, you don’t have the foundation principles of a Constitution that make it really clear, these are how we’re going to treat our citizens. If you look at the Bill of Rights, by the way, the Bill of Rights is a blend between one of two things: A specific express statement of the rights of an individual, or alternatively, an express limitation on the power of our government. You have the right to speech. Now we understand it’s not an absolute speech. You can’t say insightful words that you know are going to get somebody who is vulnerable to the power of your persuasion. If they go and shoot somebody, you can’t do that. You can’t say that. Incitement is improper, all right? But the concept you can express, because that’s the right to speech.
Contrast that with the second of the two types of rights that we have, and the second one is the freedom from government intrusion. So let’s look at it this way: You have the right to be free from an unreasonable search or seizure. And that means, if you’re driving down the street and the police officer smells marijuana, because marijuana is lawful for you to possess, that police officer does not have reason to believe the mere smell of marijuana means that you’re committing a crime. In fact, smelling marijuana — and you did smoke when you were lawfully permitted to — means that officer leaves you alone. There’s no reason to search. But if the police officer then says, ‘I’m going to search your trunk,’ and gets into the trunk and finds something, he has not exercised a reasonable intrusion into your freedom from a search in a trunk, right? Search of a trunk is permitted in certain circumstances. You have to have each of the appropriate elements or circumstances in play for a search to be extended into a trunk.
So we need to have the foundation of our Constitution always present. We cannot simply just say, oh, this is an exception to the rule. Because then anything becomes an exception to the rule at some point. It only takes one situation, then you have another situation, then you have another situation.
And I’ll just offer this: The whole problem with the pandemic that we have now, is we have certain experts that if you read their statements carefully, they are saying, ‘We might have a bigger problem.’ So let’s not open up. Well, the problem is, if we don’t open up, then we will all be collapsing under the financial weight, right? It will be around the world, starving. I mean, there is an article in the New York Times, April 22nd of this year, that said, ‘Experts say there may be as many as 120 million people pushed to the brink of abject starvation,’ because the economic engine that has fueled so much progress and has eliminated poverty like we’ve never seen before…it’s going to be gone. No one makes money, no one can buy food. If you’re looking at India, for example, where there has been great progress made, because of economic freedoms, because a marketplace does exist. If those people do not have opportunities to make money, even if they are just day laborers, they cannot afford food. And they are already at a margin, all right? They are already at the edge of vulnerable. But they are making a go of it, and now they don’t have money, and they are not having money six weeks, now moving toward two months.”
Ray Hrdlicka – Host – Attorneys.Media
“Well, that’s one of the reasons that…if you could do A, what restricts you from doing B, or C, or D, and where does it end?”
Andrew Dósa – Criminal Defense Attorney – Alameda County, CA
“Right. Well, that’s the problem. If you think that it’s appropriate to round up Japanese citizens because we’re at war with Japan, without paying any attention to the threat that that individual or each of those individuals poses, then you’ll round them up. That’s what FDR did. If you are worried about the political ramifications of a strong opposition, you suspend habeas corpus, like Lincoln did. And then if you think that you have the right to shut down California because you’re Gavin Newsom and you want to avoid potential problems, you know, then you shut down the state. You order me to be at home. And I’m violating that order, because I’m here at my office.”
Ray Hrdlicka – Host – Attorneys.Media
“I think you’re part of the essential businesses, by the way.”
Andrew Dósa – Criminal Defense Attorney – Alameda County, CA
“Well, I hope so.”
Ray Hrdlicka – Host – Attorneys.Media
“Yeah. Well, thank you very much for this perspective. We’ll stay in touch on that, because I suspect every week we’re going to find out new information and we’ll talk again on this.”
Andrew Dósa – Criminal Defense Attorney – Alameda County, CA
“All right. Thank you, Ray. Thanks for asking me to talk to you.”
Ray Hrdlicka – Host – Attorneys.Media
“Thank you, bye.”
Andrew Dósa – Criminal Defense Attorney – Alameda County, CA
“Bye.”
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