Haynes, Application of
| Decision Date | 04 November 1980 |
| Citation | 290 Or. 75,619 P.2d 632 |
| Parties | In the Matter of the Application of Lionetti Anita HAYNES for a Writ of Habeas Corpus. Lionetti Anita HAYNES, Plaintiff, v. David N. BURKS, Sheriff of Lane County, Oregon, Defendant. TC 78-1763; SC 27083. . * |
| Court | Oregon Supreme Court |
Douglas L. Melevin, Eugene, argued the cause and filed a brief for plaintiff.
Brian R. Barnes, Deputy Dist. Atty., Eugene, argued the cause for defendant. With him on the brief was J. Pat Horton, Dist. Atty. for Lane County.
Plaintiff was arrested on March 13, 1978 and indicted on March 16, 1978, on a charge of murder. For the two and one-half years since her arrest she has been held in the Lane County jail awaiting trial. Her motions to be released on appropriate security were denied on October 6, 1978 and August 30, 1979, and a motion to dismiss or alternatively to set security was denied on February 21, 1980. In the present habeas corpus proceeding, plaintiff asks to be released from imprisonment on two grounds, claiming first that the denial of a security release contravened the governing law, and second, that she has been denied a speedy trial and is entitled to have the charge against her dismissed. 1 The two issues are related as set out below.
Security release. The detention of a defendant pending trial is governed by ORS 135.230 to ORS 135.295 and ORS 135.750, within the limits imposed by article I, section 14 of the constitution. A charge of murder is an exception to the general rule that all defendants "shall be released" upon personal recognizance, conditional release, or deposit of security. See Knutson v. Cupp, 287 Or. 489, 601 P.2d 129 (1979). ORS 135.240 provides:
The exception in subsection (2) essentially restates the constitutional rule. 2
Shortly before the statutory revision of release procedures in 1973, this court examined the question of denying bail upon "evident proof" or "strong presumption" of murder. State ex rel. Connall v. Roth, 258 Or. 428, 482 P.2d 740 (1971). There defendants charged with murder were admitted to bail when the prosecutor had relied only on the indictment as the basis to deny bail. The prosecutor sought mandamus to set aside the circuit court's orders, but this court dismissed the writ. The fact that a grand jury, in closed proceedings, had been presented sufficient evidence to find probable cause for an indictment was held not to show the level of proof or presumption required to deny bail. Rather, the state's burden is to persuade the magistrate by other competent evidence that the proof or presumption of guilt is evident or strong. 258 Or. at 433, 435, 482 P.2d 740.
The responsibility for evaluating the strength of the state's evidence rests on the court hearing the motion for release. 258 Or. at 435, 482 P.2d 740. 3 In the course of stating this holding, the Connall court quoted from a New Jersey opinion the phrase that the evidence must show "a fair likelihood" that defendant would be convicted of murder. The quoted phrase illustrates the risk of the common temptation to explain one set of adjectives by a different one. The words "strong" and "evident" may be said to demand more than "a fair likelihood." So the revisers of the release statutes concluded. The original draft of ORS 135.240 proposed to include the Connall phrase "when circumstances indicate a fair likelihood of conviction," but this was deleted as inconsistent with the constitutional test. See Snouffer, An Article of Faith Abolishes Bail in Oregon, 53 Or.L.Rev. 273, 281-282 (1974) and sources cited in note 69. The likelihood of guilt must be more than "fair," it must be "strong," before release can be denied under ORS 135.240(2). It must, of course, be guilt specifically of murder, not merely of some degree of culpable homicide. While for this purpose guilt need not be shown "beyond a reasonable doubt," as it must for conviction, the evidence should at least be clear and convincing. See Thaler, Punishing the Innocent: The Need for Due Process and the Presumption of Innocence Prior to Trial, 1978 Wisc.L.Rev. 441.
Trial delay. Three different sources place legal limits on the lapse of time before a defendant must be tried. Their relationship among themselves and with the law governing pretrial detention is complex.
The criminal code commands expeditious prosecution. Once a suspect is held to answer for a crime, an indictment or information must be filed within 30 days or risk dismissal of the prosecution for delay. ORS 135.745. Once charged, a defendant "whose trial has not been postponed upon his application or by his consent" must be tried "within a reasonable period of time" or the court must dismiss the accusatory instrument. ORS 135.747. If sufficient reasons are shown for a failure of timely action under the preceding provisions, then the court may order a continuance and release the defendant from custody "as provided in ORS 135.230 to 135.290." ORS 135.750. In many cases application of these rules will satisfy constitutional requirements and obviate any constitutional issue. However, the statutes allow a new prosecution if the charge dismissed for delay was a felony or Class A misdemeanor. ORS 135.753(2). 4 And the release during continuance prescribed by ORS 135.750 is not available to a murder defendant when the facts meet the statutory and constitutional standard stated above. He or she will be released only when an unreasonable delay leads to an order of dismissal.
The constitutional standards governing trial delay are found in article I, section 10, of Oregon's Constitution and in the "speedy trial" guarantee of the federal sixth amendment, part of the due process required of states under the fourteenth amendment. 5 In some respects these provisions are not identical. The Oregon Constitution commands that "justice shall be administered ... without delay" in all proceedings, not only in criminal prosecutions. See Hooton v. Jarman Chevrolet Co., 135 Or. 269, 293 P. 604, 296 P. 36 (1931). Also, unlike the sixth amendment, article I, section 10, states not a "right" of the accused but a mandatory directive not within the disposal of the parties, a difference that can bear on the enforcement of the constitutional command. State ex rel. Oregonian Pub. Co. v. Deiz, 289 Or. 277, 613 P.2d 23 (1980). 6 "Contrary to the rule in most of the jurisdictions of the country, this court has consistently held that it is not incumbent upon the accused to demand a trial or take affirmative action to enforce his right to a speedy trial." State v. Vawter, 236 Or. 85, 87, 386 P.2d 915 (1963). But the conditions of an unconstitutional "delay" in a criminal prosecution do not differ materially from the denial of a "speedy trial" under the sixth amendment. State v. Ivory, 278 Or. 499, 564 P.2d 1039 (1977).
As stated in Ivory, a decision under either standard involves consideration of a number of circumstances or "factors" which have been identified in past decisions of this court and of the United States Supreme Court under the sixth amendment. As brought together in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), for purposes of that amendment, they include the length of the delay, the reason for the delay, the prejudicial consequences of the delay, and the evidence of concern about these consequences shown by defendant's assertion of a demand for trial. 407 U.S. at 530-532, 92 S.Ct. at 2191-92, 33 L.Ed.2d 101. There these elements or "factors" of decision are stated in the current formula of "balancing," but the metaphor should not be taken too literally. We know no scales that provide a common denominator for the "weight" of an extra month's pretrial imprisonment and the "weight" of prosecution neglect, or good faith necessity, or deliberate delay. The point of the formula is that all relevant criteria be examined and none overlooked or ignored. State v. Ivory, 278 Or. at 505, 564 P.2d 1039. The proper disposition in the individual case is not a question of addition and subtraction but of examining the relevance of each element in giving effect to the constitutional guarantee.
It is apparent that different factors are important to the substance of the constitutional command and to the remedy of dismissal. As already stated, article I, section 10, addresses the administration of justice and protects interests of the public as well as the rights of defendants. Thus, whether there has been compliance with the constitutional injunction against "delay" does not itself depend on prejudice to the defendant. Nor does it depend on defendant's demand for a trial. State v. Vawter, supra. Compliance as such depends on the length of the delay and the reasons for it. Some cases involve longer periods of preparation and pretrial procedures than others. Even with such reasons, no doubt the passage of time alone can eventually lengthen to unconstitutional dimensions. See State v. Ivory, 278 Or. at 506, 564 P.2d 1039. But short of this, a failure to bring a defendant to trial is a "delay" of justice when it has no reason other than neglect, procrastination, or deliberate choice.
The urgency of a speedy trial becomes greater when the accused is jailed while awaiting trial. Both constitution and code recognize pretrial imprisonment itself, sometimes necessary, to be a heavy burden on one not convicted of...
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