United States v. Holt

• Decision Date: 28 June 1971
• Docket Number: No. 23928.,23928.
• Citation: 145 US App. DC 185,448 F.2d 1108
• Parties: UNITED STATES of America v. Ronald HOLT, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

145 US App. DC 185, 448 F.2d 1108 (1971)

UNITED STATES of America v. Ronald HOLT, Appellant.

No. 23928.

United States Court of Appeals, District of Columbia Circuit.

Argued January 15, 1971.

Decided June 28, 1971.

Certiorari Denied November 9, 1971.

Mr. Noel H. Thompson, Washington, D. C. (appointed by this court) for appellant.

Mr. John O'B. Clarke, Jr., Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before FAHY, Senior Circuit Judge, and LEVENTHAL and MacKINNON, Circuit Judges.

Certiorari Denied November 9, 1971. See 92 S.Ct. 292.

PER CURIAM:

The Judgment is affirmed.

Judge Fahy and Judge Leventhal agree that under principles pertinent to a claim of denial of speedy trial, appellant has shown a reasonable possibility of significant prejudice; appellant is not foreclosed by failure to raise the issue at an earlier time; and the Government has not provided conclusive justification for delay by advancing later-filed indictments for earlier trial.

Judge Leventhal votes to affirm on indication that a prosecution witness available when case was first set became unavailable after postponement granted defendant for mental examination; this provides countervailing consideration leading to conclusion that trial of other, later-filed cases first is consistent with administration of justice and does not violate constitutional rights.

Judge MacKinnon votes to affirm on the basis that delay was caused primarily by defendant's own conduct which required seven major trials, the absence of any showing of substantial prejudice, defendant's direct responsibility for a minimum of 220 days of the delay, and the implicit consent to delay and to the trial order that is indicated by defendant's motions for mental examination, severance and continuance.

Judge Fahy dissents on the ground that the protracted delay was not justified and violates the defendant's right to speedy trial.

LEVENTHAL, Circuit Judge:

While facts about this case are traversed exhaustively in Judge MacKinnon's opinion, it is my view that these are the critical facts: The case involves an offense committed March 1, 1967, and an indictment filed April 24, 1967. The case was originally set for trial on October 23, 1967, but was then postponed because of defendant's motion for a mental examination. In November and early December three other indictments were filed against appellant. On December 14, 1967, appellant's motion to set trial in this case for January 5, 1968, was granted. But it was not until February 20, 1968, that he was found competent to stand trial. On that day the case was scheduled for trial on March 4, 1968. However, when that appointed trial day arrived, the case was decertified from the ready calendar at the Government's request.

What the record shows after this point can fairly be called a diligent job by the prosecutor in bringing on the other cases for trial, starting on April 23, 1968, with a trial that ended in mistrial. But in doing so he let the oldest case get older. It does not appear the defendant objected to the order in which the prosecutor brought the cases to trial. But that order of trial was within the prosecutor's discretion. He has the burden of justifying the delay of seventeen months in bringing this case on for trial.

I. Application of Speedy Trial Principles Where Delay Is Due to Prosecution of Subsequently Arising Cases

To focus on this case we must first consider the general principles applicable as to speedy trial, and to what extent a defendant's right to a speedy trial in a particular case is affected by the Government's deciding to bring on other cases for trial earlier.

We examined the considerations surrounding the right to a speedy trial in Hedgepeth v. United States, 124 U.S.App.D.C. 291, 294, 364 F.2d 684, 687 (1966) Hedgepeth I. Time is the most important factor; the longer the delay between arrest and trial the heavier the burden on the Government will be in arguing that the right to a speedy trial has not been abridged. The defense claim has prima facie merit if the lapse between arrest and trial is longer than one year. 124 U.S.App.D.C. at 293, 364 F.2d at 686; Harling v. United States, 130 U.S.App.D.C. 327, 401 F.2d 392 (1968), cert. denied, 393 U.S. 1068, 89 S.Ct. 725, 21 L.Ed.2d 711 (1969). On reviewing the intervening events, however, the court must also balance the other factors to be considered: the reasons for the delay, the diligence vel non of the prosecutor, court, and defense counsel, "and the likelihood, or at least reasonable possibility, that defendant has been prejudiced by the delay."¹

Issue of Possibility of Prejudice

It must be recognized that when the delay is caused by the time required for trial of other cases, there is less possibility of "prejudice to the person" than in other cases. In the instant case, appellant's detention stemmed from his arrests on other charges. And the anxiety of overhanging prosecutions was then necessarily with him, for as long as it took to dispose of all pending prosecutions.

There remains, however, the second aspect of the dual protection provided by the Sixth Amendment, the protection against "prejudice to a defendant's defense." Hedgepeth v. United States, 125 U.S.App.D.C. 19, 22, 365 F.2d 952, 955 (1966) Hedgepeth II.

It is at this point that I part ways with Judge MacKinnon. His opinion states that delay "alone is not dispositive; there must be some resulting prejudice." (p. 1118, infra.) But the rule does not require that defendant show prejudice; as stated above, defendant must show only a "reasonable possibility" that his defense has been prejudiced by the delay.²

In this case, a possibility of prejudice arises from the combination of delay and the difficulty of establishing the defense version of the clothes worn by defendant on the critical date of the offense.

The defendant testified that he could remember the pants he was wearing on March 2 but not the pants he was wearing on March 1. He remembers the pants on March 2 because on that date the officer told him at No. 1 Precinct: "Yeah, you still got on the same pants." (Tr. 175). The transcript continues: Q: "Didn't that cause you to think back to what you had been wearing the previous day? A: Well, it didn't cause me to do nothing."

One might say this put the defendant on "notice." But it is not the unsophisticated defendant, plunged into a situation of perhaps paralyzing anxiety, who is charged with preparing the defense. That is the task of his counsel, and she may not have been apprised of the officer's colloquy in early conferences. If the trial had been held promptly she would have had the benefit of more recent recall by witnesses other than defendant, and perhaps a refreshment of recollection on the part of defendant.

There is another possibility of prejudice even assuming that if the instant case were tried first it would have resulted in conviction. Defendant might have fared better in terms of disposition if he had more promptly received the Youth Corrections Act sentence (ultimately ordered in this case). There might well have been a reasoned decision by the prosecutor to nolle, or at least hold up, the other more serious prosecutions, perhaps with a defense stipulation, until it was at least seen whether the YCA rehabilitation was effective. The fact that appellant committed other crimes in 1967 before he had the opportunity for YCA rehabilitation would not necessarily mean he could not be reformed with proper treatment.

It cannot be said that there is no reasonable possibility of prejudice to the defense from this denial of prompt trial.³

Defense Failure To Raise Objection

Another thread running through Judge MacKinnon's opinion ascribes significance to the fact that defendant did not raise an objection to being tried last on Crim. 471-67. He asserts at one point that defendant's failure to raise this objection was a "tactical decision."

The record does not establish this conclusion. All defense counsel said was because of the possibility that the Government might dismiss the case she did not move for a transcript of the preliminary hearing. But there is nothing to indicate that she failed to make a demand for trial of this case because she thought that it would enhance the likelihood of dismissal by the Government.

Indeed, if she had sought and the court had ordered a speedy trial of this case in the spring of 1968, the fact that complainant had moved to Germany (on December 17, 1967) might very well have led the Government to nolle this case, rather than make arrangements for transportation of the victim from Germany, and to expect to prevail on the other criminal charges then pending.

More important, however, is the principle accepted in this jurisdiction, that at least in a case where delay has run for more than a year, we do not require that the defendant make a demand for a speedy trial. We hold that the burden of moving promptly is on the Government, and that no "waiver" is to be inferred from lack of demand by defense counsel. See, e. g., Coleman v. United States, 142 U.S.App.D.C. 402, 442 F.2d 150 (decided March 8, 1971).

This is the approach recommended by the American Bar Association Project on Minimum Standards for Criminal Justice,⁴ a report recently cited with approval in another connection by Chief Justice Burger.⁵ The Commentary to the Standards notes that the cases are split as to whether the defendant must make a demand for a speedy trial, finds that "the demand requirement is inconsistent with the public interest in prompt disposition of criminal cases," and concludes that the better rule is that such demand is not required in order to be able to present the claim of denial of a speedy trial by a pre-trial motion to dismiss.⁶

In our jurisdiction it is peculiarly appropriate to hold the Government to the obligation of arranging a speedy...