Didn’t anybody notice that Rudy Rivera disappeared for 355 days? Maybe he had no family. Maybe he had no friends. Maybe nobody outside noticed, but Rudy was inside and there was one entity that knew where to find Rudy Rivera, and it used to be called Corrections Corporation of America until it changed its name to CoreCivic. They knew where to find Rudy Rivera because they had him.

Rivera was arrested in California in October 2015 and appeared before a federal judge there before he was transferred in custody to Nevada on an indictment charging him with marijuana-related offenses.

And there he sat.

“During his detention, Rivera repeatedly told CoreCivic employees … that he had not been to court and did not have (a lawyer),” the judges said in Friday’s ruling. “But CoreCivic employees neither informed the Marshals of Rivera’s plight nor took any other steps to remedy the situation.”

Rivera testified he was told to “just sit there and wait.”

Eventually, Rudy sent a letter to the federal defenders, who had him brought to court the next day where a judge ordered him released.

The court declared Rivera’s prolonged detention “extreme” and “egregious” and ordered his immediate release on a personal recognizance bond. The criminal charges against him were
eventually dismissed with prejudice.

Rudy sued the private prison in which he was housed by the Marshals, CoreCivic, for its failure to do something about his continued incarceration for 355 days following his arraignment. The district court granted summary judgment to CoreCivic, upon the argument that it was not responsible for his prolonged detention. The Ninth Circuit reversed.

Here, CoreCivic argues that the Marshals solely caused Rivera’s detention. Rivera counters that CoreCivic also caused his prolonged detention because, if CoreCivic had notified the Marshals of his continued detention or had not misled him to believe that there was nothing he could do to remedy his situation, he would have secured a hearing long before 355 days elapsed. We conclude that a rational jury could reasonably find in Rivera’s favor.

CoreCivic didn’t affirmatively cause Rudy Rivera to go missing for almost a year. They didn’t refuse to bring him to court when directed. They didn’t deny they had him. They just didn’t do anything to help and, by not telling him that there were things he could do or taking any initiative to address a guy sitting there for 355 days without once going to court, which they should have known to be terribly wrong.

That’s not supposed to happen, and if you’re in the business of running a prison, you’re supposed to know that. So no summary judgment, and a rational jury could certainly find that CoreCivic had a duty to this poor guy in their custody to do something.

But for a criminal defense lawyer, this outcome barely scratches the surface of what happened to Rudy Rivera.

The U.S. Marshals Service (“Marshals”) is responsible for maintaining custody of individuals detained pending trial or sentencing for federal criminal offenses.

After arraignment, Rivera was placed into the custody of the Marshal’s Service in California. While they may have chosen to warehouse him in a private jail in Nevada, that has absolutely nothing to do with their responsibility. They remain responsible. Out of sight, out of mind? Tough nuggies. That’s the job. Where were the Marshals? But that’s not all.

Rivera was detained after he was arrested, charged and brought to court. A federal court, likely with a federal magistrate judge presiding, gave the case a number. A docket sheet was created when the clerk’s office put it into the computer. The Speedy Trial Act, a law requiring that cases be tried within 70 days which is taken very seriously by courts in order to make absolutely certain its circumvented, kicked in. Rudy Rivera would have been given his next date to appear in district court at the end of his arraignment. When he didn’t show, alarms should have gone off in courtrooms and clerks’ offices throughout the courthouse. Where were the clerks? Where was the judge? But that’s not all.

Neither informations nor indictments write themselves, so an AUSA had to be assigned to handle the prosecution. She would speak to the agents and then draft the accusatory instrument and file it to kick off the process. She would show up before the mag to represent the government, She would have a file with which to argue why the court shouldn’t cut Rudy loose. And at the end of arraignment, she would note the next court date and make a note for Rule 16 disclosure and, perhaps, fashioning a plea offer. Where was the AUSA? But that’s not all.

When he was brought before the mag, he should have had a federal defender, or an assigned CJA lawyer, or private counsel, but someone, standing next to him. They should have interviewed him beforehand to find out about the case, about the defendant, so when they stood up before the mag, they didn’t come off completely ignorant. They would have gotten the name of the assigned district judge, the names of people to contact  on Rudy’s behalf to let them know where he was. They would have gotten the next court date. They would have gotten the place where he would be sent so they could go visit him to further discuss the case. Where was the criminal defense lawyer?

Each of these players in the system had some degree of responsibility to make sure the case progressed in the ordinary course. There had to be a docket in the clerk’s office. There had to be notice to the district judge that a new case was incoming. There had to be a prosecutor in charge of the file. But most of all, there had to be a criminal defense lawyer into whose hands the life of Rudy Rivera was entrusted. Even if every aspect of the system somehow failed, and nobody else noticed that Rudy Rivera disappeared from the world, how did his lawyer let this happen?

CoreCivic should go to trial and a jury should decide whether it’s liable. But by no means does this suggest that many others aren’t also liable, far more responsible, than the next iteration of Corrections Corporation of America. CoreCivic may have arguments in its defense. Rudy Rivera’s lawyer has none. And that is all.