Brady v. Superintendent Anne Arundel Co. Det. Ctr.

• Decision Date: 09 June 1971
• Docket Number: No. 15016.,15016.
• Citation: 443 F.2d 1307
• Parties: John Leo BRADY, Appellant, v. SUPERINTENDENT, ANNE ARUNDEL COUNTY DETENTION CENTER, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

443 F.2d 1307 (1971)

John Leo BRADY, Appellant, v. SUPERINTENDENT, ANNE ARUNDEL COUNTY DETENTION CENTER, Appellee.

No. 15016.

United States Court of Appeals, Fourth Circuit.

Argued April 8, 1971.

Decided June 9, 1971.

Elsbeth Levy Bothe, Baltimore, Md. (Court-appointed counsel), for appellant.

Donald R. Stutman, Asst. Atty. Gen. of Maryland (Francis B. Burch, Atty. Gen. of Maryland, and Alfred J. O'Ferrall, III, Asst. Atty. Gen. of Maryland, on brief), for appellee.

Before BOREMAN, WINTER and CRAVEN, Circuit Judges.

WINTER, Circuit Judge:

John Leo Brady's 1958 conviction for first degree murder was affirmed but his sentence of death was reversed in Brady v. State, 226 Md. 422, 174 A.2d 167 (1961). A new trial was ordered limited solely to the issue of punishment. The limitation of relief to a trial on the issue of punishment was affirmed by the Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed.2d 215 (1963). At the time of both decisions and at all times thereafter, Maryland law provided only for the imposition of capital punishment or life imprisonment as punishment for the offense of which Brady had been convicted. Art. 27, § 413, Md.Code (1957).

Notwithstanding the clear direction from the Maryland Court of Appeals and the Supreme Court of the United States of what should be done to close Brady's case, Brady was not afforded a new trial as to punishment for almost eight years. On September 17, 1969, Brady filed a complaint in the district court under 42 U.S.C.A. § 1983, combined with an application for a writ of habeas corpus, alleging that his First, Fifth, Sixth, Eighth and Fourteenth Amendment rights had been violated by his continued incarceration without valid sentence, and that his Fourteenth Amendment rights had been violated by the failure of the Maryland Court of Special Appeals in Brady v. Warden, Maryland Penitentiary, 2 Md.App. 146, 233 A.2d 378 (1967), to apply retroactively the decision of the Maryland Court of Appeals in Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965), to invalidate Brady's 1958 conviction.

The district judge denied relief. Brady v. Superintendent, Anne Arundel County Detention Center, 314 F.Supp. 799 (D.Md.1970). He did so without prejudice to another application for a writ of habeas corpus if Brady were "not promptly given" either a sentencing hearing at which a life sentence was imposed with full credit for time served for the purpose of computing eligibility for parole, or a trial on the sole issue of punishment. Brady appealed. Meanwhile, dislodged from further inaction by this properly pointed reminder of the potential exercise of federal judicial power, the State took Brady before the Circuit Court for Anne Arundel County, Maryland; and, over his objection that he wanted a new trial, Brady was sentenced to life imprisonment, the sentence to date from the time of his arrest in July, 1958.

Before us two contentions are pressed: first, that Brady was denied his constitutional right to a speedy trial by the almost eight years' delay in his resentencing and was entitled to be released from custody, and, second, that Brady was denied equal protection and due process when his conviction was not invalidated by a retrospective application of Schowgurow. We will assume that Brady's right to a speedy trial was denied him, but, under the exceptional facts of his case, we cannot conclude that he has suffered prejudice sufficient to justify his release. We find no merit in the other contention. We affirm the district court's denial of relief.

I

The district court found that:

from May 1963 on, there have been conferences and correspondence between the attorneys for the State, the attorneys for Brady, and a Judge of the Circuit Court for Anne Arundel County. The State repeatedly expressed its willingness to have a hearing at which it would recommend that the Court impose a sentence of life imprisonment. No lighter sentence could have been imposed under the Maryland law and the decisions of the Court of Appeals and the Supreme Court, quoted above. Petitioner was unwilling to agree to any procedure which would result in a life sentence. He said that he would prefer a death sentence. This seemed so unreasonable to his attorneys that they had him transferred to the Perkins Hospital for the Criminally Insane for a psychiatric examination. His attorneys were careful to avoid agreeing to any procedure which would result in a life sentence. Neither side took any affirmative action to bring the case to trial. 314 F.Supp. at 801-802.

It concluded:

There has been a long delay in holding a trial on the question of punishment or a sentencing hearing. The delay was caused both by the failure of the State to bring the matter to a head, and by the efforts of petitioner and his attorneys to prevent such trial or hearing, in the hope that a better result than a life sentence could be achieved. 314 F.Supp. at 803.

Our review of the record satisfies us that the district judge's general description of what transpired was accurate. The fact is while the passage of some time is attributable to Brady's attorneys' understandable desire to cause the mental competency of their client to be investigated, most of the delay was attributable to the State's unwillingness to carry out the mandates of the Maryland Court of Appeals and the Supreme Court of the United States absent advance agreement on Brady's part as to what was to be done. We deem the State unreasonable in the delay it occasioned by its efforts to seek this concession. It was, of course, not improper to seek agreement, but certainly neither Brady nor his counsel was under any obligation to agree. The State should have paid greater heed to the principle that the burden was on it to bring about a final termination of the prosecution. If agreement on the part of Brady was not forthcoming within a reasonable time, it was the duty of the State to set the matter for trial and shift the burden to Brady to show good cause why the trial as to sentence should not proceed. We can only conclude that to the extent that there was fault in the long delay, the fault was that of the State. We do not understand that the district judge found fault on the part of Brady or his counsel, and we find none.

II

While it is now certain that the Sixth Amendment right to a speedy trial is applicable to the states, Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L. Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), there is no definitive holding that the right to a speedy trial applies to the period between conviction and sentence. In Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), the Court assumed arguendo that the interval between judgment and sentencing was included within the guarantee. The separate concurrence of Mr. Justice Brennan in Dickey v. Florida, supra, strongly suggests that this interval is covered. Mr. Justice Brennan discussing, inter alia, the problem of delay between trial and sentence, observed that there is no support in the wording of the Sixth Amendment for the view that the criminal process can be fragmented into various stages and the right to a speedy trial held applicable to some and inapplicable to others. This was said, however, in the context of a case involving the question of delay after arrest but before indictment. Finally, in Welsh v. United States, 348 F.2d 885 (6 Cir. 1965), the Sixth Circuit apparently held that the speedy trial guarantee applied to the period after the conviction but before sentence, although in that case the court concluded that there had been no unreasonable delay. See also, Brooks v. United States, 423 F.2d 1149 (8 Cir. 1970), cert. den., 400 U.S. 872, 91 S.Ct. 109, 27 L.Ed.2d 111 (1971); Whaley v. United States, 394 F.2d 399 (10 Cir. 1968).

Although there are thus strong indications that the Sixth Amendment right to a speedy trial is applicable to the interval between conviction and sentencing, we need not decide that question. Even if we assume that the right applied and was violated here, the consequences suffered by Brady are not sufficient to warrant his release from custody.

Courts have consistently indicated in recent years that in order for delay to immunize a defendant from further proceedings or punishment, rather than merely entitling him to compel the state to proceed, some significant prejudice must either be demonstrated or be implicit in the circumstances. See, e. g., United States ex rel. Solomon v. Mancusi, 412 F.2d 88 (2 Cir. 1969), cert. den., 396 U.S. 936, 90 S.Ct. 269, 24 L.Ed.2d 236 (1969); Pitts v. North Carolina, 395 F.2d 182 (4 Cir. 1968); United States v. Banks, 370 F.2d 141 (4 Cir. 1966), cert. den., 386 U.S. 997, 87 S.Ct. 1317, 18 L.Ed.2d 345 (1967); Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684 (1966). See also, Note, 57 Colum.L.Rev. 846, 852 (1957); Note, 64 Yale L.J. 1208 (1955).

Some courts have indicated that an exception to the necessity of showing prejudice exists where the government delay is unjustified or deliberate. The Supreme Court stated in Pollard v. United States, supra, that "whether delay in completing a prosecution such as here occurred amounts to an unconstitutional deprivation of rights depends upon the circumstances * * *. The delay must not be purposeful or oppressive." 352 U.S. at 361, 77 S.Ct. at 486. In Pollard, the Court concluded that the delay was merely a product of mistake on the part of the trial court, and so was not purposeful. No circuit has applied this language in Pollard to release a prisoner because of deliberate delay which was not significantly prejudicial, although some courts have adopted language indicating that they would do so. Cf. e. g., Williams v. United States, 102 U.S.App.D.C. 51, 250 F.2d 19 (1957), in which Judge Bazelon expressed that...