On the heels of the systemic killing of Kalief Browder, the teen who sat for three years, much of it in the SHU, awaiting dismissal of case, the New York Post went in search of other pre-trial detainees with similar prolonged detention. They came up with a doozy, Carlos Montero.

Carlos Montero, now 24, was with two pals when one fatally stabbed a man and the other slashed another during a robbery in Washington Heights on Oct. 23, 2008, authorities have charged.

Montero, who has spent six years and eight months in Rikers, attempted to get his case tried separately — while one of his alleged cohorts fights the DNA evidence — but the judge balked, and his lawyer won’t even seek bail for him now because he says it’s a lost cause.

“I’m depressed in here. I just want to go home,’’ said Montero, who entered the jail at age 17.

The next Kalief? Well, yes, in the sense that he was a teen when he went in, and his pre-trial detention has been outrageously long.  But that’s where the similarities end.  Unlike Browder, who was arrested for theft of a backpack, a relatively minor offense in the scheme of crimes in the big city, Montero was taken down for murder. 

While it’s not likely that Browder would run off to Fiji to escape prosecution, Montero has a pretty good reason to jump, decades in prison.  Unlike other crimes, defendants charged with murder in New York are not entitled to bail. That doesn’t mean they can’t get it, if they can persuade a judge that, with sufficient conditions, they will return to court and face the charges, but there is no entitlement. They can be held without bail.

Browder’s delay was caused by the prosecution’s gaming the ready rule by announcing faux readiness for trial to stop the speedy trial clock, while judges acquiesced in the lie and his assigned lawyer bobbed his head.  Montero has no statutory speedy trial clock, as murder is exempted from CPL §30.30.  Even so, that’s not why he’s spent nearly a quarter of his life on the Rock:

The baffling pretrial delay apparently stems from the fact that Montero’s case is being heard together with the other men—one of whom is engaged in a lengthy battle with prosecutors over the veracity of DNA evidence. Montero’s attorney attempted to have his client’s case heard separately, the Post reports, but a judge denied the request. 

His case is not just “being heard together with the other men,” but that he has two co-defendants with whom he is indicted for the murder. They are indicted for committing the murder together, and as would be the case with any crime in which multiple defendants acted together, they will be tried together.

While there are reasons to sever a defendant from trial with co-defendants, such as statements by one implicating another which would otherwise be inadmissible, giving rise to a Bruton problem, there is otherwise no basis to cut one loose and force the state to try the case multiple times.  Indeed, even with a Bruton problem, it can be cured with multiple juries rather than multiple trials.

According to the Post, Montero’s lawyer has nonetheless moved to sever his case from his co-defendants’, but his motion was denied. There is no mention what basis was offered for severance, but none (aside from delay, which isn’t a legal basis) comes to mind.

In Montero’s case, the delay is at the behest of his co-defendant, who is challenging DNA evidence.  In other words, it’s the motions by another defendant in his case that’s stretching this out, and the prosecution wouldn’t be held accountable for delay caused by a co-defendant in any event.

So does that mean there is nothing to be done?  Not quite.

There also is a right to a reasonably rapid proceeding under the Sixth Amendment, but the US Constitution doesn’t lay out a timeline.

So Montero is still waiting for his day in court, even after 77 appearances in Manhattan Supreme Court before Justice Ronald Zweibel — and 2,423 days behind bars.

Constitutional speedy trial, beyond that provided by statute in New York, still applies.  The meaning of constitutional “speedy trial” has been addressed in two leading cases, Singer and Taranovich, neither of which is particularly illuminating. The crux is that constitutional speedy trial requires both prolonged, inexcusable delay plus prejudice to the defense.  Not that the defendant has been cooling his heels in Rikers, but that the defense’s case has been impaired by the delay. That’s a very hard prong to meet.

Even so, a motion to dismiss for constitutional speedy trial delay should have been made, if for no other reason than to preserve the issue for appeal.

“The massive delay should not have happened,” Jaffe said.

Jaffe, who was appointed by the court, added that he never asked the judge for bail because “there’s no point.”

That there’s “no point” is a truly bewildering argument. If he means that Justice Zweibel wouldn’t grant his motion, so what? We make motions because they need to be made, not because it’s a guaranteed win. Then again, who says the judge wouldn’t grant it? You never know until you make it.

With some really good argument, such as the delay being the prosecution’s responsibility, despite the co-defendant’s motion, as there is no justification for their opposition to DNA testing to tie the trial up for years.

Nonetheless, the Post quotes my buddy Ron Kuby, who is often referred to as Master of the Obvious:

Montero’s case seems tailor-made to challenge the law, said famed civil rights lawyer Ron Kuby, who is not connected to the case.

“This case is gold medal-winning when it comes to delay,” Kuby said. 

Yet the challenge hasn’t been made, Montero sits in a cell and the Dude abides.