United States v. Dunn

• Decision Date: 26 January 1972
• Docket Number: No. 24597.,24597.
• Citation: 148 US App. DC 91,459 F.2d 1115
• Parties: UNITED STATES of America v. Louis L. DUNN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

148 US App. DC 91, 459 F.2d 1115 (1972)

UNITED STATES of America v. Louis L. DUNN, Appellant.

No. 24597.

United States Court of Appeals, District of Columbia Circuit.

Argued November 4, 1971.

Decided January 26, 1972.

Mr. Stephen P. Oggel, La Jolla, Cal. (appointed by this court) for appellant.

Mr. Charles F. Flynn, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before DANAHER, Senior Circuit Judge, and McGOWAN and TAMM, Circuit Judges.

I.

TAMM, Circuit Judge:

The question presented in this appeal is whether an 18½-month delay between arrest and trial is violative of the Sixth Amendment's guaranteed right to a speedy trial. During a large portion of this time appellant was in custody, either in prison or St. Elizabeths Hospital.

On November 2, 1968, appellant was arrested and charged with two counts of assault with intent to commit rape and with enticing a minor child to take indecent liberties with her in violation of D.C.Code, § 22-501 and § 22-3501(b). The chronology of what transpired between November 2, 1968 and May 14, 1970, the date on which the trial commenced, is so disturbing to us that we set it out in full. Following the arrest on November 2, 1968, appellant was held for arraignment which took place on November 4, 1968. At this time appellant was committed to St. Elizabeths Hospital by the District of Columbia Court of General Sessions (now the Superior Court of the District of Columbia) to determine appellant's competency. This was done as a result of a request by appellant's court-appointed counsel. Some two months later, on January 2, 1969, St. Elizabeths staff certified that Dunn was competent and responsible and able to stand trial. On January 7, 1969 the Court of General Sessions called the case but was forced to grant a continuance as the report from St. Elizabeths had not yet been received. The case was again called on January 14, 1969, and again continued for lack of a report from St. Elizabeths. On January 28, 1969 the letter from St. Elizabeths, certifying that appellant was competent, was finally received. At this time the court denied appellant's motion to dismiss and the case was set down for preliminary hearing on February 4, 1969. On that day the arresting officer was unable to attend since he was in North Carolina on emergency leave and the case was dismissed for want of prosecution; the appellant was released from custody after being detained for 95 days.

On February 14, 1969 a new arrest warrant was issued charging the same offenses. However, in this instance the charges were brought not in General Sessions, but rather, in the United States District Court for the District of Columbia. On May 2, 1969 Dunn was arrested on a charge of disorderly conduct and confined to the D.C. Jail, at which time appellant first became aware of the outstanding warrant in the instant case. Counsel for appellant was appointed by the court and a preliminary hearing was conducted on May 8, 1969, the result of which being the defendant's incarceration to await action by the grand jury. On June 18, 1969, the appellant was again committed to St. Elizabeths for another mental competency examination by order of the District Court, acting at the request of officials of the D. C. Jail, where appellant had fought with another prisoner and set a fire. This was an ex parte proceeding, at which neither appellant nor his court-appointed counsel was present. Neither Judge Curran nor the Assistant United States Attorney was aware of appellant's earlier commitment to St. Elizabeths. On July 1, 1969 the grand jury returned an indictment charging appellant with the above-mentioned offenses. Despite Judge Curran's June 18, 1969 commitment order, Dunn remained in D. C. Jail until July 28, 1969, when he physically entered St. Elizabeths. Two days later appellant's counsel at trial filed a motion to dismiss the indictment for failure to prosecute. This motion was argued on August 22, 1969, and although it was not then decided, yet another commitment order was signed. In the interim St. Elizabeths informed the court and the Government that appellant had previously been examined and found competent in January 1969. This communication was dated September 29, 1969. In the ensuing months the case was called three times—on October 3, 1969, December 3, 1969, and January 5, 1970. In each instance the case had to be continued for lack of any report from St. Elizabeths relating to appellant's mental competence. In each of these three instances Dunn's counsel moved for dismissal, but each time the judge postponed ruling on the motion. Finally, after being incarcerated at St. Elizabeths since July 28, 1969, the Hospital reported, on February 20, 1970, that Dunn was both responsible and competent to stand trial. Competence was judicially certificated on February 24, 1970. A conference was held on March 20, 1970, and trial was scheduled for and took place on May 14 and 15, 1970. Despite continuous attempts by appellant to obtain pre-trial release he remained in custody until trial commenced, notwithstanding a favorable recommendation for conditional release received on March 31, 1970 from the D. C. Bail Agency, which was rejected on April 14, 1970 by the Court of General Sessions.

In determining where the fault lies for each of these delays, the Government, in a memorandum requested by this court, asserts that of the total delay, 323 days are attributable to St. Elizabeths Hospital, the reason for 99 days of delay is unclear, while 56 days can be attributed to the courts, 55 to the appellant and 23 days for divers reasons all attributable to the Government. In the memorandum submitted by the appellant, 499 days of delay are computed as being attributable to the Government and 60 days to appellant. The parties are not always agreed as to which delays are attributable to which party, but it is interesting to note that their end results are approximately the same. Even by attributing the initial 60-day commitment at St. Elizabeths to appellant, which the Government does not seek to do, the total delay attributable to the Government would still be approximately 440 days. We find a delay of this nature to be both unexplainable and unjustifiable in light of the Constitution, Federal Rules of Criminal Procedure, the case law, and in fact, our entire historical and jurisprudential commitment to the concept of the speedy dispensing of justice.

It is not surprising that in drafting the Bill of Rights our founding fathers included the following in what was to become the Sixth Amendment to the Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, . . . .

At the time the Republic was in its embryonic stage the concept of speedy trial had a 610-year history. Writing for the Court in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), Mr. Chief Justice Warren went to great lengths in setting out the history of an accused's right to a speedy trial. We quote at length from Klopfer in the hope of renewing the historical perspective of the precious Sixth Amendment guarantee:

We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, "We will sell to no man, we will not deny or defer to any man either justice or right",¹ but evidence of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon (1166).² By the late thirteenth century, justices, armed with commissions of gaol delivery and/or oyer and terminer³ were visiting the countryside three times a year.⁴ These justices, Sir Edward Coke wrote in Part II of his Institutes, "have not suffered the prisoner to be long detained, but at their next coming have given the prisoner full and speedy justice, . . . without detaining him long in prison."⁵ To Coke, prolonged detention without trial would have been contrary to the law and custom of England;⁶ but he also believed that the delay in trial, by itself, would be an improper denial of justice. In his explication of Chapter 29 of the Magna Carta, he wrote that the words "We will sell to no man, we will not deny or defer to any man either justice or right" had the following effect:

"And therefore, every subject of this realme, for injury done to him in bonis, terris, vel persona, by any other subject, be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay."⁷

Coke\'s Institutes were read in the American Colonies by virtually every student of the law.⁸ Indeed, Thomas Jefferson wrote that at the time he studied law (1762-1767), "Coke Lyttleton was the universal elementary book of law students."⁹ And to John Rutledge of South Carolina, the Institutes seemed "to be almost the foundation of our law."¹⁰ To Coke, in turn, Magna Carta was one of the fundamental bases of English liberty.¹¹ Thus, it is not surprising that when George Mason drafted the first of the colonial bills of rights,¹² he set forth a principle of Magna Carta, using phraseology similar to that of Coke\'s explication: "In all capital or criminal prosecutions," the Virginia Declaration of Rights of 1776 provided, "a man hath a right . . . to a speedy trial . . . ."¹³ That this right was considered fundamental at this early period in our history is evidenced by its guarantee in the constitutions of several of the States of

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