Petition of Williams

• Decision Date: 02 August 1979
• Citation: 378 Mass. 623,393 N.E.2d 353
• Parties: Petition of George Douglas WILLIAMS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 353

393 N.E.2d 353

378 Mass. 623

Petition of George Douglas WILLIAMS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued June 28, 1979.

Decided Aug. 2, 1979.

Bernard M. Grossberg, Boston, for petitioner.

Newman A. Flanagan, Dist. Atty., and Michael J. Traft, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

This petition for a writ of habeas corpus or, in the alternative, for a writ of error, raises the question whether the petitioner, convicted of crime and serving a prison sentence, was deprived of a constitutional right by reason of delay of the official court reporter in transcribing the trial record, which resulted in delay in the petitioner's perfecting and prosecuting his appeal from the conviction. We think the delay was excessive, but, analyzing the issues, notably those of the Commonwealth's responsibility and the possible prejudice to the petitioner, we conclude that there was no constitutional deprivation. In all this we agree with a single justice of this court who dismissed the petition.

Conviction after trial in the Superior Court of the crime of conspiring to violate G.L. c. 94C, § 32 (possession with intent to distribute a controlled substance, cocaine), occurred on October 25, 1976, and the petitioner was sentenced to a term of nine to ten years at the Massachusetts Correctional Institution at Walpole (now being served at M.C.I., Norfolk). Claim of appeal was filed on November 1, 1976, but it was not until June 13, 1977, that the petitioner (through new counsel) obtained an order from the trial judge entitling him to a free transcript, evidently superseding an earlier order for preparation of the transcript at the petitioner's expense. The court reporters were on notice. On October 28, 1977, we find petitioner's counsel inquiring of a clerk of the Superior Court when he might expect the transcript. The clerk responded promptly that he was advising the Chief Justice of the Superior Court of the failure to deliver the transcript, and was asking the Chief Justice for help in expediting the process. Counsel followed up with an inquiry to an administrative assistant to the Chief Justice in December, 1977, ¹ at which time the assistant had a statement from the reporter that the transcript could be expected in two to three weeks; and counsel was later informed of an assurance by the reporter that the transcript would be in hand by January 20, 1978. There was finally an assurance by the reporter direct to counsel that one-third of the transcript would be delivered by January 27, 1978.

The reporter defaulted on this as on prior undertakings, and on February 1, 1978, the petitioner brought the present petition in the county court, rehearsing the facts as above and praying (on habeas corpus) that he be released forthwith from custody or (on writ of error) that he be released on personal recognizance pending final decision of the appeal. ² The single justice, resorting to this court's power of superintendency (G.L. c. 211, § 3), brought the reporter before him, ³ and by February 27, 1978, most of the transcript had been delivered, with the remainder following on March 27, 1978. On March 3, 1978, the single justice allowed the respondent's motion to dismiss the petition, explaining his order in a brief memorandum. From the dismissal the petitioner took the present appeal to the full bench. ⁴

The guaranty of a speedy trial set forth in the Sixth Amendment of the United States Constitution (and art. 11 of the Massachusetts Declaration of Rights) is not read as applying to the appellate process. See Doescher v. Estelle, 454 F.Supp. 943, 949-950 (N.D.Tex.1978), and cases cited. Nevertheless, as we acknowledge in Commonwealth v. Swenson, 368 Mass. 268, 279-280, 331 N.E.2d 893, 901 (1975), "specific circumstances . . . such as deliberate blocking of appellate rights or inordinate and prejudicial delay without a defendant's consent, may rise to the level of constitutional error" (infringement of due process or, possibly, equal protection). Numerous decisions, most of them by Federal courts, have begun to fill in the constitutional picture. See, e. g., Layne v. Gunter, 559 F.2d 850, 851 (1st Cir. 1977), cert. denied, 434 U.S. 1038, 98 S.Ct. 776, 54 L.Ed.2d 787 (1978); Rivera v. Concepcion, 469 F.2d 17, 19-20 (1st Cir. 1972); Codispoti v. Howard, 589 F.2d 135, 139-142 (3d Cir. 1978); Dozie v. Cady, 430 F.2d 637, 638 (7th Cir. 1970); Way v. Crouse, 421 F.2d 145, 146 (10th Cir. 1970); State v. Lagerquist, 254 S.C. 501, 505-506, 176 S.E.2d 141 (1970), cert. denied 401 U.S. 937, 91 S.Ct. 912, 28 L.Ed.2d 216 (1971). ⁵

We may assume that delay in the disposition of a criminal appeal does not affect its outcome, as delay of a trial may well do through loss of witnesses or the like; where, however, a retrial is ordered on appeal, there can be a somewhat similar ultimate difficulty through disappearance of witnesses. For an appellant serving a sentence pending the appeal, delay may work an irremediable unjust loss of liberty in case his conviction is finally overthrown; and for any appellant, even one not in custody, delay may entail anxiety, forfeiture of opportunity, and damage to reputation, among other conceivable injuries. It is not a satisfactory answer to such hardships that the presumption of innocence will have been abraded by the fact of the initial conviction from which the appeal is being taken. See Rivera v. Concepcion, supra, 469 F.2d at 19. To be considered, too, is the interest of the legal system and society at large in the expedition of appeals, especially criminal appeals. See Reese v. State, 481 S.W.2d 841, 843 (Tex.Crim.App.1972); Christian, Delay in Criminal Appeals: A Functional Analysis of One Court's Work, 23 Stan.L.Rev. 676 (1971).

It is upon grounds such as those just mentioned that inordinate delay in the appellate process may rise to the level of constitutional error. Any significant delay coming to the attention of a court should pose not only the question how it may be feasibly cut short, but also the question whether the particular appellant may not deserve additional remedy. In adjudging the character of the delay as well as the desirability of sanction a court has to consider the extent of the delay, its causes, its impact on the appellant, and the degrees of responsibility or fault attributable to the appellant on the one hand and the State on the other. See Doescher v. Estelle, supra, 454 F.Supp. at 947. Cf. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The single justice counted the time elapsed for preparation of the transcript as from the order for a free transcript to the date of delivery of the last volume (some nine months), and he commented: "While the delay is excessive, it does not reach the level of a denial of due process of law." He did not consider the petitioner blameworthy in relation to the delay. It was hardly necessary to say that the reporter's unexplained neglect was attributable to the State, as reporters are "sworn officers of the court" (G.L. c. 221, § 82, as amended by St.1973, c. 562). But the State's fault was palliated because, in the face of a performance by the reporter certainly poor but not shown to have been characteristic, "several conscientious efforts had been made by officials of the Superior Court to obtain the transcript for petitioner," and on their part there was no "intentional or negligent violation of petitioner's rights." (The conclusion is not inconsistent with an observation by us that the officials might have reacted more sharply when the reporter began to exhibit signs of his unconcern.) The single justice went on to note, in respect to the issue of specific injury or prejudice to the petitioner, that even if, on the given facts, the petitioner should be thought to deserve some enlargement from confinement,...