Memorandum of Law for a Speedy Trial Violation

MEMORANDUM OF LAW

 

The Defendant moves this Honorable Court to dismiss this complaint with prejudice.  The State is violating the Defendant’s right to a speedy trial as protected by Sixth Amendment to the United States Constitution and Article I, section 6 of the Maine Constitution.  “The right to a speedy trial is generically different from any other rights enshrined in the Constitution for the protection of the accused.  In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at time in opposition to, the interests of the accused.”  Barker v. Wingo, 407 US 514, 519 (1972).  “The right of a speedy trial is necessarily relative.  It is consistent with delays and depends upon circumstances.  It secures rights to a defendant.”  Beavers v. Haubert, 198 US 77, 87 (1905).

The Sixth Amendment of the US Constitution provides, in part “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, …”  (emphasis added).  “The speedy trial provision of the Sixth Amendment [is] directly applicable against the States through the Fourteenth Amendment.”  Klopfer v. State of North Carolina, 386 US 213, 224-25 (1967).  Article I, section 6, of the Maine Constitution provides, in part, “In all criminal prosecutions, the accused shall have a right . . . to have a speedy, public and impartial trial . . ..”  (emphasis added).  In State v. Beauchene, 541 A.2d 914, 918 (Me. 1988), the Law Court held “the analysis of a speedy trial claim is identical under both the Federal and the State Constitutions.”  “The right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment.”  Klopfer v. North Carolina, 386 US 213, 223 (1967).  The criteria by which the speedy trial right is to be judged was set forth by Justice Powell for a unanimous Supreme Court in Barker v. Wingo, 407 US 514 (1972).  The Supreme Court in Barker established a balancing test, which weighs the conduct of both the prosecution and defense in bringing about the delay.  Id. at 530.  The Supreme Court noted four factors to consider in determining if a pretrial delay violates the Sixth Amendment right to a speedy trial:  (1) the length of the delay; (2) justification for the delay; (3) the nature of the prejudice to the accused; and (4) the degree to which the accused asserted his right to be tried promptly.  Id. at 530.  Each factor is related and must be considered in conjunction with the other as no factor is absolutely determinative.  “We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.  Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.”  Barker at 534.  “Whether an accused has been denied the right to a speedy trial can be determined only through the use of a delicate balancing test that takes into account all of the circumstances of the case at hand.”  State v. Murphy, 496 A.2d 623, 627 (Me. 1985)(citing State v. Cadman, 476 A.2d 1148 (Me. 1984).

Length of Delay

 

The length of delay is measured from the time of arrest, indictment, or information, whichever occurs first.  Dillingham v. US, 423 US 64 (1975) and Barker v. Wingo, 407 US 514, 519-20 (1972).     “We cannot definitely say how long is to long in a system where justice is supposed to be swift but deliberate.”  Barker at 521.  The courts have been reluctant to set a per se rule to speedy trial claims.  See State v. Joubert, 603 A.2d 861 (Me. 1992); State v. Carlson, 308 A.2d 294 (Me. 1973).  “We have held that ‘the Barker analysis . . . need be undertaken only when the length of delay is so presumptively prejudicial as to warrant consideration of the three remaining factors.”  State v. Murphy, 496 A.2d 623, 627 (Me. 1985)(citing State v. Dudley, 433 A.2d 711, 713 (Me. 1981)).

“The length of 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.  Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.  To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.”  Barker v. Wingo, 407 US 514, 530-31 (1972) (footnote omitted).  It is clear from the Supreme Court’s statement in Barker that the delay for a misdemeanor OUI is considerably short before a speedy trial analysis is triggered.  A delay of approximately 8 months and 2 weeks is sufficient for a Class D OUI speedy trial analysis.

The Law Court doubted an 8-month delay in a complicated murder case was sufficient to trigger a speedy trial violation analysis, however the Law Court still conducted the analysis in State v. Goodall, 407 A.2d 268 (Me. 1979).  The delay for a simple OUI is much shorter than a complicated murder case.  A delay of 20-months is sufficient to trigger a speedy trial violation analysis in a murder case.  See State v. Harper, 613 A.2d 945, 946 (Me. 1992).  Thus an 8-month delay in the present case is sufficient to trigger the speedy trial violation analysis under Barker.

Reason for the Delay

 

“[D]ifferent weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.  A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.”  Barker v. Wingo, 407 US 514, 530-31 (1972) (footnote omitted).

Here the reason for the delay is the negligence of the State.  The State was negligent in having its own witness, a law enforcement officer, present for hearing on two separate occasion.  There is no indication the State even notified the officer that his presence was required for hearing.  Nor is there any credible reason as to why the officer was not present for the hearing.

The reason for the delay is solely attributable to the State.  This matter was originally set for hearing on the Defendant’s Motion to Suppress on XXX.  The State continued this matter because its officer was not present for the hearing.  The Motion hearing was rescheduled for XXX.  The State’s officer was not present to go forward on this date.  The State attempted to located the officer but was unsuccessful.  Assistant  District Attorney XXX represented to defense counsel that he attempted to have the officer paged but the pages went unanswered.  The State had no knowledge as to why its officer was not present.  The Defendant has done nothing to delay this matter.  “We have been reluctant to find violations of the right to a speedy trial unless the delay is solely attributable to the State’s conduct, or the State acts in bad faith.”  State v. Hider, 715 A.2d 942, 948 (Me. 1998)(citing State v. Willoughby, 507 A.2d 1060, 1066 (Me. 1986); State v. Lewis, 373 A.2d 603, 609 (Me. 1977)).  This reason alone mandates a finding of violation of the Defendant’s right to a speedy trial.

Nature of Prejudice to the Accused

 

“Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.  Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.”  Barker v. Wingo, 407 US 514, 530-31 (1972) (footnote omitted); State v. Hider, 1998 ME 203, ¶ 20, 715 A.2d 942, 948 (Me. 1998)(citing State v. Beauchene, 541 A.2d 914, 919 (Me. 1988)).

The Defendant has not been subject to the first interest the right of a speedy trial is designed to protect.  He has not been subjected to oppressive pretrial incarceration.

The second interest the right to a speedy trial is designed to protect is to minimize anxiety and concern of the accused.  The Defendant has suffered a great deal of anxiety and concern regarding these charges.  He has maintained his innocence throughout these proceedings and is subjected to the inherent pressures of prosecution since the State original accusation.  The United State’s Supreme Court stated, “living under a cloud of suspicion and anxiety is prejudice to the defendant.”  Barker v. Wingo, 407 US 514, 534 (1972).  See also Klopfer v. North Carolina, 386 US 213, 221 (US 1967)( Anxiety and concern accompanying public accusation is another prejudicial effect.)  The Defendant has had to live under the suspicion of this allegation for over 8 months.

The final interest the right to a speedy trial is designed to protect is to limit the possibility that the defense will be impaired.  The Defendant’s defense has been impaired by this delay.  This incident involves a car accident when one XXX backed his vehicle into a vehicle the Defendant was a passenger in.  Counsel has attempted to locate XXX however counsel has been unsuccessful in locating XXX.

Another of the State’s witness is XXX.  He was store employee working at Big Apple when the accident occurred.  XXX does not indicate in his statement if he observed who was driving the car the Defendant was a passenger in.  Counsel spoke with XXX who indicated that he did have some recollection of the events of XXX.  XXX noted that a lot of people where coming and going at the store.  However, he was unable to name any of these individuals or give any indication as to how these people could be located.

It is clear that the Defendant’s ability to present a defense has been impaired.  A key witness, the individual driving the vehicle that caused the accident, is missing.  Another witness’s recollection of the events has faded and numerous other witnesses, who may have witnessed who was driving the car the Defendant was a passenger in, are now unknown and missing.

Assertion of Right

 

“A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process.”  Barker at 527.  The Defendant did assert his right to a speedy trial at the time the State dismissed this matter.  The Defendant objected to the State dismissing the case.  Counsel in an attempt to get the matter before the court requested a hearing before the motion judge.  Unfortunately, a record was not established.  Brief oral argument was entertained by the presiding judge. The judge ultimately concluded he had no jurisdiction to decide the issue of dismissal with or without prejudice since the State had already dismissed the case.

Remedy

The remedy for violating the constitutional right to a speedy trial is dismissal with prejudice.  Strunk v. US, 412 US 434 (1975) and Barker at 523.  The court has no discretion to permit reprosecution.

Maine Rule of Criminal Procedure 48

 

Maine Rule of Criminal Procedure 48(b) provides in part, “If there is unnecessary delay in bringing the defendant to trial, the court may upon motion of the defendant dismiss the . . . complaint.”  The Law Court interpreted this Rule in State v. Wells, 443 A.2d 60 (Me. 60).  In Wells the  State filed a complaint in District Court charging the Defendant for terrorizing.  The complaint was filed on July 14, 1981 with a date of incident of July 13, 1981.  Id. at 62.  The case was called for trial on July 23, 1981.  Id. at 62.  “The State, however, informed the District Court it was not ready to proceed and requested a continuance.  The District Court denied the request and dismissed the complaint.”  Id. at 62.  The State subsequently indicted the Defendant for the exact same charges on August 4, 1981.  Id. at 62 The Defendant filed a Motion to Dismiss which the Superior Court granted.  Id. at 62.  The purpose of Rule 48 is to ensure “not only a criminal defendant’s constitutional right to a speedy trial, but also furthers important judicial policy considerations of relief of trial court congestion, prompt processing of all cases reaching the courts and advancement of the efficiency of criminal justice process.”  Id. at 63 (citing State v. Estencion, 625 P.2d 1040, 1043 (Hawaii 1981).  “Federal Rule 48(b), authorizing dismissal for unnecessary delay, is a vehicle for enforcing the Sixth Amendment right to a speedy trial, but that is not all it is.  It is a restatement of the inherent power of the court to dismiss a case for want of prosecution, and that power of the court is not circumscribed by the Sixth Amendment.”  Id. at 63.  “Thus, the proper inquiry under Rule 48 goes not only to the length of delay but necessarily also addresses the reasons for the delay.”  Id.  at 63.

The inherent power of this Honorable Court to dismiss a case for want of prosecution must be used in the current case.  The State dismissed this case on XXX without giving the Defendant an opportunity to argue against such before a court with competent jurisdiction.  The reason the State did not move for a continuance is because the State was well aware that it did not have good cause to request such a continuance and therefore the Court would deny the continuance.  It is standard practice in this Honorable Court to give the State one continuance for failure to have its witnesses present, however, this Court typically denies the State’s request for a continuance on a second Motion to Continue due to the State’s failure to have its witnesses ready.  The reason for the delay is solely attributable to the State for its failure to have its own officer present to testify on the Defendant’s Motion to Suppress.  The State could not even give a reason as to why the officer was not present to testify or where he was on the day in question.

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