# Graves v. United States

> District of Columbia Court of Appeals · September 23, 1983 · 467 A.2d 712

URL: https://www.frixlaw.com/law-library/cases/4946601

## Case

- **Full name:** Whitfield GRAVES v. UNITED STATES
- **Court:** District of Columbia Court of Appeals
- **Decided:** September 23, 1983
- **Citations:** 467 A.2d 712; 1983 D.C. App. LEXIS 494
- **Precedential status:** Published
- **Opinion:** Concurrence by Perren
- **Judges:** Belson, Ferren, Kelly, Perren
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

PERREN, Associate Judge,
concurring:
I join in Judge Kelly’s opinion for the court. I write separately, however, to emphasize my understanding that the Supreme Court last term clarified that the most significant “prejudice” factors in speedy trial analysis are deprivation of liberty and other disruptions of life, not impairment of defense preparation. United States v. MacDonald, 456 U.S. 1 , 102 S.Ct. 1497 , 71 L.Ed.2d 696 (1982). Consequently, prejudice from appellant’s lengthy pretrial incarceration, coupled with his prompt and frequent assertion of the right to a speedy trial, distinguishes this case from Day v. United States, 390 A.2d 957 (D.C.1978) — relied on by the dissent — and accordingly mandates reversal.
I.
In Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972), the Supreme Court specified four factors — length of the delay, reasons for the delay, assertion of the right, and prejudice to the defendant — for use in speedy trial analysis. Id. at 530 , 92 S.Ct. at 2191 . The Court announced “a difficult and sensitive balancing process” in which “none of the four factors” was “either a necessary or sufficient condition to the finding of a deprivation of the right of a speedy trial.” Id. at 533 , 92 S.Ct. at 2193 .
In connection with the present appeal, it is important to note that prejudice to defense preparation from pretrial delay is not the principal kind of prejudice relevant to Sixth Amendment analysis. In United States v. Marion, 404 U.S. 307 , 92 S.Ct. 455 , 30 L.Ed.2d 468 (1971), the Court said that “the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense.... Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and ... may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” Id. at 320 , 92 S.Ct. at 463; see Moore v. Arizona, 414 U.S. 25, 26-27 , 94 S.Ct. 188, 189-190 , 38 L.Ed.2d 183 (1973) (per curiam).
A year later in Barker, supra, the Court included a Sixth Amendment concern for prejudice to defense preparation. It summarized three forms of prejudice from pretrial delay: “oppressive pretrial incarceration,” “anxiety and concern of the accused,” and “the possibility that the defense will be impaired.” Id. at 532 , 92 S.Ct. at 2192. The Court added: “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.” Id. As Judge Kelly points out, this court in several cases focused on this latter emphasis, testing prejudice for speedy trial purposes significantly, if not primarily, by reference to impairment of defense preparation. See, e.g., Parks v. United States, 451 A.2d 591, 603, 604 (D.C.1982); Warren v. United States, 436 A.2d 821, 836 (D.C.1981); Towles v. United States, 428 A.2d 836, 842 (D.C.1981).
However, in United States v. MacDonald, supra, the Supreme Court receded from Barker’s Sixth Amendment emphasis on impairment of defense preparation. After stressing the language quoted above from Marion, supra, 404 U.S. at 320 , 92 S.Ct. at 463 , the Court stated in MacDonald :
The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to *723 minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.
456 U.S. at 8 , 102 S.Ct. at 1502 . Thus, impairment of liberty and other anxiety-producing disruptions of life are the principal interests protected by the Sixth Amendment; prejudice to defense preparation from pretrial delay, while relevant, is primarily a matter of protection by the Fifth Amendment right to due process. 1
Appellant has conceded he suffered no prejudice to defense preparation from pretrial delay in this case. In the past, under this court’s interpretation of Barker, supra, 407 U.S. at 532 , 92 S.Ct. at 2192 , this concession (or a trial court finding) that the “most serious,” id., form of prejudice was lacking, would have diluted the prejudice factor in the overall analysis, despite lengthy pretrial incarceration, to the point of requiring af-firmance of a close case. See Parks, supra, 451 A.2d at 602-04 . After MacDonald, supra, the “difficult and sensitive balancing process,” Barker, supra, 407 U.S. at 533 , 92 S.Ct. at 2193 , is altered as to the prejudice factor. Consequently, given a two-year pretrial delay, appellant’s pretrial incarceration takes on added significance in comparison with previous analyses, especially when coupled with his persistent assertion of the right to a speedy trial.
II.
Our dissenting colleague votes for affirmance by relying primarily on Day v. United States, 390 A.2d 957 (D.C.1978). That case is readily distinguishable from this appeal on two grounds. First, as the dissent concedes, with respect to assertion of the right to a speedy trial appellant’s “position on appeal is better than Day’s.” Post at 726. Appellant “asserted his speedy trial right promptly and frequently,” ante at 718 (footnote omitted), beginning 7½ months after indictment, whereas Day concentrated his interest in a speedy trial “on the six-month period after remand by this court following an interlocutory appeal beginning 2½ years after arrest.” Day, supra, 390 A.2d at 969 .
Second, in the present case, appellant was incarcerated for “the entire twenty-five month period between arrest and trial,” ante at 719 (footnote omitted), eleven months of which were on the present charges alone. In contrast, Day. “was imprisoned for other crimes during most of the [32-month] period between arrest and trial,” Day, supra, 390 A.2d at 971 , and did “not make a point of prejudice from incarceration.” Id. at 972 . Our dissenting colleague concedes that “the weight to be given Day’s incarceration is lessened somewhat by the fact that during most of it he was serving time on other convictions.” Post at 727.
Especially because of appellant’s prompt and frequent assertion of the right to a speedy trial (in contrast with Day’s 2½ year wait), appellant’s incarceration — including the period when a parole detainer was lodged against him, see Day, supra, 390 A.2d at 972—was manifestly more prejudicial than Day’s incarceration was to him and accordingly should have alerted the prosecutor and the court to a need for faster action. Our dissenting colleague, therefore, is incorrect in concluding “it cannot be said that the prejudice factor is measurably greater in this case than in Day.” Post at 727.
In Day , this court stated:
*724 If any concrete prejudice to defense preparation (or any other type of prejudice) had been brought to light, or if appellant had pressed hard for expedited resolution of the government’s pretrial appeal ..., this two-year delay, amounting to a significant charge against the government, might well have been enough to require dismissal on Sixth Amendment grounds.
Id. at 973 . Those words anticipated the present case. Reversal is required.
. Cf. United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency, - U.S. -, 103 S.Ct. 2005, 2012, 2014 , 76 L.Ed.2d 143 (1983) (Barker v. Wingo Sixth Amendment analysis provides relevant framework for determining whether government’s delay in filing civil proceeding for forfeiture, after customs officer seized claimant’s currency, violated Fifth Amendment right to be heard at meaningful time; due process inquiry into prejudice factor focuses primarily on whether delay hampered claimant in presenting a defense on the merits).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4946601. Public record. Not legal advice.