U.S. ex rel. Mitchell v. Fairman

• Citation: 750 F.2d 806
• Decision Date: 12 December 1984
• Docket Number: No. 83-3031,83-3031
• Parties: UNITED STATES of America ex rel. Francis A. MITCHELL, Petitioner-Appellant, v. James W. FAIRMAN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 806

750 F.2d 806

UNITED STATES of America ex rel. Francis A. MITCHELL, Petitioner-Appellant, v. James W. FAIRMAN, Warden, Respondent-Appellee.

No. 83-3031.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 1984.

Decided Dec. 12, 1984.

James I. Kaplan, Mayer, Brown & Platt, Chicago, Ill., for petitioner-appellant.

Marcia L. Friedl, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before POSNER and FLAUM, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

POSNER, Circuit Judge.

The petitioner-appellant, Francis Mitchell, was found guilty of murder by an Illinois state court in 1979 and was sentenced to a long term of imprisonment. After exhausting his state remedies, see People v. Mitchell, 95 Ill.App.3d 779, 51 Ill.Dec. 1, 420 N.E.2d 415 (1981), he brought this action for habeas corpus in federal court, and he appeals from the district court's denial of his petition. The only question he argues in his appeal brief is whether Illinois denied him his constitutional right to a speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). In a footnote in the brief, Mitchell's lawyers attempt to reserve "all legal contentions and grounds advanced in support of issuance of the writ of habeas corpus in the District Court, both by himself (pro se ) and by appointed counsel." This is unacceptable; grounds raised but not argued on appeal are waived. See, e.g., Hershinow v. Bonamarte, 735 F.2d 264, 266 (7th Cir.1984).

Mitchell was first arrested in Illinois in June 1973 on suspicion of the murder (committed earlier that month) for which he was eventually convicted. But he was also "wanted" in Florida; and in August 1973, an Illinois grand jury returned a no bill against Mitchell and at the same time the State of Florida lodged a detainer against him in connection with an alleged battery in Florida that had taken place shortly after the murder. Mitchell, who had been in jail since his arrest, was handed over to the Florida authorities, was tried and convicted in Florida in 1974, and was sentenced to three years in prison. While he was serving this sentence in Florida, a grand jury in Illinois in December 1974 indicted him for murder. After waiving extradition in March 1975, he was transferred to a jail in Chicago and arraigned in May 1975. At this time he made several discovery requests of the state that were not complied with till the end of 1976. In January 1977 he successfully moved to suppress evidence that had been seized in a search of his home, and he was released from jail on bond. But the state appealed, and in May 1978 the Illinois Appellate Court reversed the suppression order. People v. Mitchell, 61 Ill.App.3d 99, 18 Ill.Dec. 437, 377 N.E.2d 1073 (1978). In October 1978 the Illinois Supreme Court denied leave to appeal the Illinois Appellate Court's decision to it, and Mitchell was finally tried in June 1979.

The Supreme Court has told us that to determine whether the constitutional right to a speedy trial has been violated, we should consider (1) the length of, and (2) the reason for, the delay in trying the defendant (Was it deliberate on the government's part? Did the defendant want the delay?); (3) the harm caused to the defendant ("lengthy incarceration prior to trial, ... the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and ... the disruption of life caused by arrest and the presence of unresolved criminal charges," United States v. MacDonald, 456 U.S. 1, 8 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696 (1982)); and (4), as indicating the reasons for delay and the extent of harm to the defendant, the frequency and forcefulness of the defendant's demand for trial. Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 2191-93, 33 L.Ed.2d 101 (1972).

Thus, the longer the delay and the more vigorous the defendant's demand to be tried speedily, the more reason the state must show for the delay and the less harm (of whatever type) to himself the defendant need show. If this seems a rather spongy formula (the Supreme Court in Barker described the constitutional right to a speedy trial as "amorphous," "vague," and "slippery," 407 U.S. at 521-22, 92 S.Ct. at 2187), and one undoubtedly generous to the state, we must bear in mind that delay frequently favors criminal defendants rather than prosecutors. See id. at 521, 92 S.Ct. at 2187. Too rigid a right to a speedy trial would enable many defendants to escape conviction who had not been harmed at all--had actually been helped--by the delay in bringing them to trial. It seems odd, though, that impairing the defendant's ability to mount an effective defense is not on the list in MacDonald of the elements of harm to the defendant from delay of trial. Although in Barker it had been considered the most important factor bearing on harm to the defendant, see 407 U.S. at 532, 92 S.Ct. at 2193, in MacDonald it was said to be "protected primarily by the Due Process Clause and by statutes of limitations," 456 U.S. at 8, 102 S.Ct. at 1502. But in the word "primarily" (also found in the statement in the opinion that "the Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time," id.) may be found some basis for continuing to regard such prejudice as bearing on a defendant's right to a speedy trial. And if not, it hardly matters; we would simply construe Mitchell's complaint as encompassing a claim that the delay in bringing him to trial violated the due process clause by interfering with his ability to defend himself against the state's charges.

Six years elapsed between Mitchell's arrest and his trial, but this includes 16 months between the time when a grand jury in Illinois returned a "no bill" against him and the time when another grand jury in Illinois indicted him. This interval, during which no charges were pending against Mitchell in Illinois, does not count for purposes of determining whether Mitchell's right to a speedy trial was infringed. See United States v. MacDonald, supra, 456 U.S. at 7, 102 S.Ct. at 1501. Most people against whom charges are not pending do not want a speedy--or any--trial. It is true that when the Illinois charges against Mitchell were dropped he was "released" into custody in Florida, but that does not change the principle. "[A]n arrest or indictment by one sovereign [Florida] would not cause the speedy trial guarantees to become engaged as to possible subsequent indictments by another sovereign [Illinois]." Id. at 10 n. 11, 102 S.Ct. at 1503 n. 11.

That still leaves, however, more than four and a half years during which the constitutional guarantee of a speedy trial was applicable to Mitchell (June-August 1973, December 1974-June 1979), and that is an awfully long time without a trial--more than enough to require us to look closely at the reasons for the delay, and the harm to the defendant. See Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2192 ("The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance."); United States ex rel. Fitzgerald v. Jordan, 747 F.2d 1120, 1127 (7th Cir.1984); Terry v....