State ex rel. Fredenberg v. Byrne

• Citation: 20 Wis.2d 504,123 N.W.2d 305
• Parties: STATE ex rel. Marvin G. FREDENBERG, Petitioner, v. William D. BYRNE, District Attorney of Dane County, Respondent. STATE ex rel. Marvin G. FREDENBERG, Petitioner, v. David H. BENNETT, District Attorney of Columbia County, Respondent.
• Decision Date: 20 September 1963
• Court: United States State Supreme Court of Wisconsin

Page 305

123 N.W.2d 305

20 Wis.2d 504

STATE ex rel. Marvin G. FREDENBERG, Petitioner, v. William D. BYRNE, District Attorney of Dane County, Respondent.

STATE ex rel. Marvin G. FREDENBERG, Petitioner, v. David H. BENNETT, District Attorney of Columbia County, Respondent.

Supreme Court of Wisconsin.

Sept. 20, 1963.

Donald S. Eisenberg, Madison, for petitioner.

George Thompson, Atty. Gen., Wm. A. Platz, Asst. Atty. Gen., Madison, for respondents.

HALLOWS, Justice.

The issue is whether the refusal of the state of Wisconsin to take such action as is available to it to obtain the return of the petitioner from the federal correctional institution in Minnesota upon his request for the purpose of trial on the charges pending in Wisconsin violates any rights he may have to a speedy trial under the 6th Amendment to the U. S. Constitution or Article I, sec. 7, of the Wisconsin Constitution and any rights to due process under the 14th Amendment of the U. S. Constitution and Article I, sec. 8, of the Wisconsin Constitution.

The respondents argue the provisions of the federal and state constitutions respecting a right to a speedy trial are not applicable, the petitioner's motion is insufficient on its face to raise a prima facie case of a violation of the petitioner's rights to due process of law, and in any event the petitioner has waived his constitutional rights.

The right to a speedy trial is of ancient origin preceding the constitutions. Its historical antecedents may be traced to the Magna Charta and the English Habeas Corpus Act of 1679 (31 Car. II, ch. 2). ¹ The ancient practice of Gaol delivery whereby the jails were cleared of all offenders twice a year may be some indication of the historical meaning of a speedy trial, but it is to be noted that at common law the right to a speedy trial was restricted to a defendant who at the time was actually confined waiting trial of the offense for which he sought a speedy trial. 5 Wharton's Criminal Law and Procedure, sec. 913, p. 4. The right now extends to one out on bail and neither the federal constitution nor the state constitution refers to imprisonment. ² Admittedly the petitioner is not in prison awaiting trial of the charges in Columbia and Dane counties. These counties by their detainers are waiting for the petitioner. The question is how long can they wait when he demands a speedy trial? It is true the 6th Amendment of the federal constitution is inapplicable to the facts before us as that amendment as such applies to criminal prosecutions in the federal courts. See Betts v. Brady (1942), 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, which was recently overruled in Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, which held in state prosecutions for crimes an indigent accused was entitled to counsel under the 14th Amendment.

The respondents argue the right to a speedy trial under the state constitution is restricted to criminal prosecutions which have been commenced by an indictment or an information and no indictment or information has been filed against the petitioner. Complaints, however, have been filed in both Columbia and Dane counties and warrants for the arrest have been issued and filed. The filing of the information is within the control of the district attorney. The constitution does not require the information to be filed but refers to prosecutions by information. Forgery is a crime prosecuted by means of an information. Under the 6th Amendment to the federal constitution a split of authority exists as to when the right to a speedy trial arises. The 9th Circuit in Iva Ikuko Toguri D'Agunio v. United States (1951), 192 F.2d 338, held the right arises with the filing of the complaint, while the 5th Circuit in Harlow v. United States (1962), 301 F.2d 361, holds the right commences when the indictment is returned or when the information is filed. We are inclined to construe our constitution to mean the right to a speedy trial arises with the initial step of the criminal prosecution, i. e., the complaint and warrant. For the purpose of a speedy trial, the complaint, which is 'a written statement of the essential facts constituting the offense charged * * *,' sec. 954.02(1), Stats., commences a criminal prosecution and the warrant of arrest is based upon it. They are the prerequisites for the filing of an information and the necessary basis for the detainers filed at Sandstone.

It is true Wisconsin has no right to require the limited release of the petitioner from the federal institution so he may be tried in Wisconsin and then returned. Whether the petitioner may be brought here is a matter of comity between Wisconsin and the federal government particularly with the U. S. Department of Justice, Bureau of Prisons. See Hayward v. Looney (10th Cir., 1957), 246 F.2d 56; Ponzi v. Fessenden (1922), 258 U.S. 254, 42 Sup.Ct. 309, 66 L.Ed. 607; and 118 A.L.R. 1037. That department did grant conditional custody of the petitioner for the purpose of trying him in Shawano county and this court will not assume it is impossible for the district attorneys for Columbia and Dane counties to follow the same procedure to bring the petitioner back for trial of the charges pending in their counties.

The rationale of the early cases holding a federal prisoner not brought to a speedy trial in the state court could not be heard to complain was based on the reasoning the state as a matter of right could not insist the prisoner be returned and the delay was the prisoner's own fault for having committed the crime for which he was imprisoned. ³ However, the more recent decisions both in state and federal courts reason that once a state commences a criminal prosecution it has a duty to follow through and complete it, and the fact the defendant is incarcerated in a federal prison is not necessarily sufficient justification to make the delay reasonable. ⁴ We adopt the reasoning in People v. Bryarly (1961), 23 Ill.2d 313, 178 N.E.2d 326, to-wit:

'The constitutional guaranty of a speedy trial contemplates that the means that are available to meet its requirements shall be utilized. Under the circumstances of this case we think that the burden of taking the steps necessary to bring about a prompt trial rested upon the People.'

Assuming petitioner is not entitled to a speedy trial under Article I, sec. 7, of the Wisconsin Constitution, it is our opinion his rights under the due process clause of the 14th Amendment of the U. S. Constitution have been violated. The recent case of Gideon v. Wainwright, supra, makes it clear the guaranties at least as involving the right to counsel under the 6th Amendment are part of the due process under the 14th Amendment applicable to the states. Prior to this decision several courts intimated the right to a speedy trial under the 6th Amendment was embraced within the due process clause of the 14th Amendment and thus was applicable to state prosecutions. In re Sawyer's Petition (7th Cir., 1956), 229 F.2d 805; Hastings v. McLeod (10th Cir., 1958), 261 F.2d 627; United States v. Lane (N.D.Ind., 1961), 193 F.Supp. 395; U. S. v. Maroney (W. D., Pa. 1961), 194 F.Supp. 154. We find no reason why the 14th Amendment requiring a state to furnish counsel for an indigent does not also demand a speedy trial.

Respondents argue the petitioner has shown no prima facie case of violation of his rights to due process. We do not agree. The criminal prosecutions have been pending against the petitioner almost two years. No specific harm need be alleged by the petitioner. Although the imprisonment of the petitioner at Sandstone is his own fault that in itself does not excuse the state's long delay in bringing him to trial in the absence of a showing that the state was unable to obtain his return for trial. Moreover, the effect of a detainer warrant at Sandstone prison may in some cases result in a loss of privileges such as assignments outside the prison walls or may necessitate 'cell housing' or possible transfer to a penitentiary. Detainers do not bar the petitioner from receiving the statutory good time which may be credited to him or from earning extra good time but the information pertaining to detainer warrants is considered by the U. S. Board of Parole although it does not necessarily prevent a man from being granted 'Parole to Detainer.' ⁵ Failure to give a prisoner a speedy trial has been held to violate due process where the existence of a charge or detainer has adverse effects upon the prisoner. U. S. v. Maroney, supra. The Wisconsin legislature has recognized the potential injustices resulting from the practice of filing detainers by enacting sec. 955.22, Stats. (Prompt Disposition of Intrastate Detainers Act, Ch. 109, Laws of 1961.) This section applying only to intrastate detainers requires, with some exceptions, the trial...