King v. United States, 14392.

• Decision Date: 08 January 1959
• Docket Number: No. 14392.,14392.
• Citation: 105 US App. DC 193,265 F.2d 567
• Parties: Wilbert KING, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

105 US App. DC 193, 265 F.2d 567 (1959)

Wilbert KING, Appellant, v. UNITED STATES of America, Appellee.

No. 14392.

United States Court of Appeals District of Columbia Circuit.

Argued October 6, 1958.

Decided January 8, 1959.

Certiorari Denied May 18, 1959.

Mr. Albert Beitel, Washington, D. C. (appointed by this Court) for appellant.

Mr. Carl W. Belcher, Asst. U. S. Atty., with whom Mr. Oliver Gasch, U. S. Atty., and Mr. Edgar T. Bellinger, Asst. U. S. Atty., were on the brief, for appellee. Mr. Lewis Carroll, Asst. U. S. Atty., also entered an appearance for appellee.

Before PRETTYMAN, Chief Judge, and EDGERTON, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting en banc.

Certiorari Denied May 18, 1959. See 79 S.Ct. 1124.

PRETTYMAN, Chief Judge.

Our appellant, King, was indicted, tried and convicted for assault with a dangerous weapon. The appeal is in forma pauperis, and his counsel here was appointed by this court. He had court-appointed counsel in the District Court.

The essence of the appeal is an attack upon the method by which the calendar of criminal cases is handled by the District Court. We look at the system, then at the facts here, and then at the points of argument.

Indictments are customarily returned in this jurisdiction on Mondays. Some 1,200 or 1,300 criminal cases pass through the court annually on indictments, and so an average of twenty-five are initiated each week. Counsel are appointed at once for the indigent who want counsel. On Friday the indicted persons are arraigned and the cases are given trial dates. This is a special feature of the system. After arraignment each case always has a designated trial date. Obviously each Friday's cases take their places on the trial calendar after the cases already on that calendar. Equally obviously the assignment judge, or commissioner, has no way of knowing how many of a given Friday's cases will eventually be tried or how long each trial will take. No one has ever been able to predict with any appreciable accuracy the length of a series of trials, or indeed even the length of a series of arguments. In order to make full use of the time of judges and jurors and to get on with the mass of business, the assignment authorities attempt to prevent a "breakdown", that is, having judges and jurors ready to try cases but no cases to be tried. Many cases do not reach trial on the assigned dates, because continuances are requested and granted and pleas of guilty are entered. So the authorities err on the side of assigning too many cases rather than too few. As a result, sometimes a case is assigned for trial on a given day but that day comes and goes and all the judges in the criminal courts are occupied with trials of other cases, either those extended over from prior days or cases higher on the day's list. The unfortunate case caught in this predicament must be continued. Here we reach the nub of the problem: Continued to when? If it be continued to the next day, some case on that day's calendar must go over, because every day's calendar is full. The case thus put over squeezes a case off the next day's calendar, and so on in chain reaction; and the whole calendar becomes an expanding-contracting organism of no definite character at all. If our hypothetical specimen case be continued to the next day open for calendar assignments, that day may be a month away and the indicted person who anticipated trial on a given day is left to a long wait. At the time of the events with which we are here concerned, the authorities usually followed the latter course.

We look now at the facts in the case before us. The alleged offense occurred October 27, 1956. It was a cutting in a pool hall. From beginning to end, that is, from his arrest to his testimony upon trial, King maintained that he cut the victim (named Jack Smith) accidentally, that he was in a fight with another man over some money and did not know Jack Smith or how he was cut. In any event the police arrived promptly and King was locked up. Next day in Municipal Court he was charged, identified and held. On December 3rd an indictment was returned. Counsel was appointed, and on December 7th King was arraigned. The case was set for trial January 14th but was continued to January 28th on the defendant's motion.

Then began the series of events which poses our problem. On January 28th, February 27th, March 20th, and April 15th the case was scheduled for trial but was continued for the reason, in the parlance of the courthouse, "no court available". One of these continuances (March 20th to 21st) was for only one day, but the others were for thirty, twenty-one, and twenty-eight days. Meantime King's attorney became ill, and a continuance was granted him on that account. That continuance was from March 21st to April 15th. Then, on April 26th, King himself, pro se, filed a motion "for direct acquittal", which was heard on May 3rd and denied. The same day King moved the court to "appoint me another attorney". This the court did on May 9th. King came to trial on June 3, 1957. This was about six months after he was indicted. The continuances began on January 14th. From that date to June 3rd is something less than five months.

Certain features of the foregoing sequence of events are to be noted. First of all, the prosecutor had no part in any of the delays. He never requested or occasioned a continuance. Indeed it is easy to imagine that the edge of his case might have been dulled by the repeated vain excursions to the courthouse by the eyewitnesses presented by the Government, the only witnesses (save King) in the case. King has not claimed an inaccuracy in their account. In the second place, of the seven continuances three were on King's behalf; of the 140 days which elapsed, some 60 days of delay were requested or occasioned by King himself. In the third place, King does not allege any prejudice by reason of the delay. As we have noted, there were a number of eyewitnesses; the accounts of all, including King, tallied substantially; no one denied that King cut Smith. The only issue was whether the cutting of Smith was pure accident or the result of a furious, blind slashing-about.

King says the granting of a succession of automatic continuances, without the presence or consent of either himself or his counsel, violated his constitutional right to a speedy trial.

No doubt this problem lies at a spot where the ideal clashes head-on with the practical. Ideally, maybe every accused person would be indicted or released the day he is arrested and, if indicted, would be tried the day after indictment. Even that arrangement, however, would not be deemed ideal by those indicted persons whose interests are best served by delay, — and there are doubtless many such. In any event practicalities prevent any such Utopia — if it be Utopia. Lawyers often need time for preparation, and witnesses frequently need to be found and, when found, must have advance notice to attend. Moreover cases have to take their turn. The case on trial is entitled to deliberate consideration; the others on the calendar stack up. At the same time, too much heed to practicalities may encroach upon the individual's rights. If the legislature were to refuse to install sufficient judicial machinery to perform the judicial tasks, it might be necessary to turn some accused persons loose. But the present situation is far from that hypothetical crisis. The problem here is to dispose of the present number of criminal cases through use of a reasonable amount of judicial machinery. A method of disposition which reasonably accommodates practicalities is not illegal.

We think the delay here (a total of 140 days, 60 days of which was requested by defense counsel) between arraignment and trial, on account of a crowded calendar, is not such a prolonged period as to be a denial of speedy trial in a constitutional sense. The fact that the delay was in successive bits instead of by one long postponement is immaterial to the problem of constitutionality, where the off-and-on program has no harmful impact on defense witnesses.

Cases such as United States v. Provoo,¹ Taylor v. United States,² United States v. McWilliams,³ and United States v. Chase,⁴ cited by appellant, are not applicable here, because the delays involved in those cases were attributable to the prosecution.

In any procedural practice short of the ideal, it is easy to find some element which could be called illegal. But, where a method is chosen because it meets the practical problems of a court and is clearly within the realm of the reasonable, we do not advance the cause of justice by harsh condemnation. We have neither the data nor the means with which to devise another method of putting an average of five new cases a day on the District Court's calendar. Sometimes we are compelled to declare a procedural practice void without even considering possible alternates; we do not feel so compelled here. We do suggest that the District Court give the problem continuing attention, especially in respect of defendants held in jail. Indeed we were told at oral argument that experimental variations from the practice here involved were then already under way. We find no reversible error in this phase of the present case,⁵ despite the earnest and intelligent presentation by counsel who undertook this duty at the court's behest.

It is argued to us that our view runs contra Rule 50 of the Criminal Rules, 18 U.S.C.A. But that rule provides merely that criminal proceedings shall be given preference, and even so the preference is required to be only "as far as practicable." In this jurisdiction criminal proceedings not only have a preference; they have a calendar all their own, and four, five, or even six judges sit every day on criminal cases. On the constitutional question it is urged upon us that, when a case is delayed for 140 days for whatever cause save...