Benjamin Henderson Jones v. Ronald J. Angelone, Director, Department of Corrections of the Commonwealth of Virginia

MURNAGHAN, Circuit Judge,

concurring:

I concur in the judgment, however, I write separately in order to clarify what the record establishes as fact and what is speculation or questionable inference in the majority opinion. As the ends sometimes do not justify the means, so too a proper result may proceed from an unjustified method. The case concerns unsatisfactory conduct by both the Virginia prosecutor on the one hand and the defendant on the other. Our conclusion that the defendant has not shown prejudice and is therefore not entitled to relief, however, should not be converted into a justification or excuse for the negligent behavior of the prosecutors.

I

The following is what the record establishes. On January 8, 1975, Marie Gladys Jones and William Anthony Hall were murdered at their home in Wise County, Virginia. J.A. 16. On the day of the murders, the Wise County Sheriffs Office obtained an arrest warrant for Benjamin Jones, the son and half-brother of the victims. J.A. 251-52. Shortly thereafter, those officials learned that Jones was in New York. J.A. 168. When they located Jones in New York in March 1975, he was being held by New York on an unrelated robbery charge. J.A. 16, 117-18, 167. Subsequently, New York tried and convicted Jones of robbery and sentenced him to seven and one-half to fifteen years imprisonment. J.A. 16, 42, 164. As a result of his New York sentence, Jones was not indicted for the murders nor brought to Virginia for trial until 1986. What occurred in the interim follows.

A. 1975

In March 1975, an official from the Commonwealth of Virginia sent a letter to the New York City Police Department asking it to inform the Virginia officials if Jones, whom they referred to “as being held by” the New York City Police Department, refused to waive extradition. J.A. 167. If not, the official indicated that the Commonwealth’s Attorney would begin extradition proceedings. The letter enclosed two warrants to be filed as detainers. J.A. 18,109,167.

The record does not clearly reflect, however, whether extradition proceedings were initiated in 1975. J.A. 18-19, 146-68. At one point in 1975 Jones appeared in a local New York court where he was informed that two Assistant Attorney Generals from Richmond, Virginia were there with warrants charging him with two murders and that they were trying to extradite him. J.A. 54-57. Jones testified that he did not appear in court, and that he understood that the judge dismissed the complaints and warrants. J.A. 18-19, 43-44, 54-57. There is no documentation of the hearing in the record. Jones in a 1985 habeas corpus application stated that: “extradition proceedings were held ... in 1975,” but then dismissed. Supp. J.A. 4. In a 1982 extradition application, the Commonwealth, however, stated that “[n]o other application has been made for a requisition for the said fugitive.” J.A. 159. And the Commonwealth stipulated at the habeas hearing that other than the letter sent to the New York Police *912 Department in 1975 attaching two detainers, its file did not contain a record of any activity to extradite or obtain custody of Jones through other means prior to 1982. J.A. 124-25. No other activity concerning gaining custody of Jones occurred in 1975.

B. 1982

The record reflects that Virginia failed to take any further action after 1975 to secure temporary custody of Jones for trial until 1982. J.A. 18, 124. So, from 1975 to 1982 Virginia’s wish to prosecute Jones was not pursued. Having “lost track” of its key witness, Jones’s sister, the Commonwealth presumably had little motivation to seek Jones’s extradition. 1 In 1982, however, the prosecuting Assistant Commonwealth’s Attorney chanced across the missing witness’s name in a legal notice in a condemnation case, located the witness, and came to understand that Jones was scheduled to be released from New York prison in August or September of 1982. J.A. 19, 108, 158, 160, 165. At that point in time, the Assistant Commonwealth’s Attorney initiated procedures in order to obtain custody of Jones. J.A. 19, 158-165. That is the first time that the Commonwealth’s case file reflects any efforts were made to obtain custody of Jones other than the initial letter sent in 1975 prior to Jones’s trial in New York for robbery.

The Assistant Commonwealth’s Attorney wrote to the superintendent of the New York prison in which Jones resided requesting temporary custody pursuant to the Interstate Detainer Agreement. J.A. 19, 163-165. Additionally, in 1982, the prosecuting Assistant Commonwealth’s Attorney wrote to the Virginia Governor seeking extradition. J.A. 19, 158. There are no records, however, of any action taken by the Governor on the petition or of any follow-up by the Attorney on the request. Jones’s testimony indicates that a hearing began in 1982 in New York relating to the Virginia charges. J.A. 19, 44-45. It is unclear what occurred at that hearing because Jones had to be removed from the courtroom due to his misbehavior.

Jones was not released as scheduled in 1982 because he violated prison rules. J.A. 109-10, 122, 130-31. The majority suggests that Jones violated prison rules in order to delay his release and return to Virginia for trial. That suggestion is based only, however, on speculation — the Assistant Commonwealth’s Attorney’s memory of phone calls— some from over a decade ago — with unnamed New York prison officials who, the Attorney asserts, stated that Jones violated prison rules to avoid being paroled. 2

C. 1985

The record reflects no further activity by Virginia until 1985. J.A. 19-20. In 1984, New York had written Virginia to inform it of Jones’s upcoming release in March 1985. J.A. 19, 157. Virginia responded by inform *913 ing New York that it would seek extradition upon release if Jones refused to waive it. J.A. 156. Jones, however, was not released in March 1985. Later that spring and summer, Virginia initiated efforts to obtain custody over Jones. J.A. 146-55. Finally, in January 1986, New York released Jones from jail. J.A. 48. Virginia transferred Jones to Virginia, indicted him, and approximately one year later in 1987 tried him for murder. J.A. 48-49, 250.

The record reflects that Jones opposed Virginia’s efforts to gain temporary custody of him when those efforts were initiated in 1982 and thereafter. J.A. 44 — 45, 47, 50-51, 114. One after all can make an effort, even a losing one, to succeed in a legal process. However, absolutely nothing in the record reflects any activity by Jones opposing any such efforts before 1982.

The majority also suggests that “apparently” New York refused to release Jones because it feared that he would be subjected to the death penalty in Virginia and requested assurances that Jones was not eligible for capital punishment. J.A. 129-30. However, the Assistant Commonwealth’s Attorney tes-tiffed that no governor of New York refused to transfer Jones prior to 1985. 3 J.A. 134. And, there is no record in the Commonwealth’s file of a refusal of extradition by a New York Governor. 4

D. 1987 — Trial

In 1987, approximately twelve years after the murders occurred and twelve years after Virginia knew where Jones was located, the Commonwealth prosecuted Jones for the murder of his mother and half-brother. The thrust of the Commonwealth’s case against Jones was the eye-witness testimony of his sister. 5

Jones contended throughout trial that he had been in New York during the time of the murders. Jones’s attorneys attempted to locate the witnesses Jones named with specificity and the hotel records of the hotel where Jones claims he was staying at the time of the murders. J.A. 69-72, 95, 249. The attorneys traveled to New York and found the hotel. They spoke with the hotel clerk whom Jones had remembered, Teddy Black. Black thought he remembered Jones, but was unsure and not able to identify a photograph of *914 Jones from 1986. J.A. 82-83, 96-97. Black recognized the other names or descriptions Jones had given the attorneys, but those individuals had all left the hotel and then-whereabouts were unknown. J.A. 83, 85. The hotel records from 1975 were not available because records were routinely destroyed. J.A. 84. Ail other investigation failed to lead to any further information.

II

With respect to the extraordinary delay, the record reflects that the 1975 efforts were fragmentary and that there were no efforts from 1975 to 1982 by Virginia to obtain custody of Jones, and the prosecution advances no explanation or excuse for the delay. 6 The reasons for the delay are not clear. However, as the Magistrate Judge, who conducted the factfinding in this case opined, it appears that “the primary reason was neglect by Wise County officials.” J.A. 26. 7 In light of the unexplained extraordinary delay attributable to Virginia prosecutors and the evidence at trial, if Jones could demonstrate actual prejudice, under Howell v. Barker, 904 F.2d 889 (4th Cir.), cert. denied, 498 U.S. 1016 , 111 S.Ct. 590 , 112 L.Ed.2d 595 (1990), he would be entitled to a dismissal of the indictment. 8

Jones, however, failed to demonstrate actual prejudice. Jones named several potential witnesses who lived in the same hotel where he claims he was on the day of the murder, and he raised the absence of the hotel’s records as prejudicial to his defense. 9 Jones failed, however, to demonstrate what the missing witnesses would have testified to or what the missing documents would have shown that would have been exculpatory. Jones also failed to demonstrate that there were no other witnesses or documents that could establish the same objective. Actual prejudice must be demonstrated with more than mere speculation. Thus, I concur in the judgment, though I believe it overstates the factual basis which supports it.

. The majority states that Virginia "understandably lost contact” with the witness because of New York's initial refusal in 1975 to allow Virginia temporary custody of Jones. As previously explained, the record does not reflect exactly what occurred in 1975. While it appears that two individuals traveled to New York, it is unclear whether an extradition proceeding actually occurred. Jones testified that he never appeared in court. It is certainly not evident in the record that New York refused to extradite Jones. There was no proof of such refusal. Nor was there any proof that Virginia actually sought extradition. Furthermore, the record does not reflect an effort on the part of the Commonwealth to keep in touch with the witness (Jones's sister), to keep a current address of the witness, or to maintain any information on the key witness in the case against Jones. Most significantly, the record does not reflect any further efforts whatsoever by the Commonwealth to extradite Jones after the initial 1975 letter was sent until its Assistant Commonwealth's Attorney years later happened upon the witness.

. The evidence relied upon is the Assistant Commonwealth's Attorney's memories of telephone calls he had with New York prison officials who in turn were speculating on Jones’s motives for violating the rules. The very same Assistant Commonwealth's Attorney had some difficulty remembering facts of the case and referred the questioner to what was established in the case file. J.A. 120-24. For example, he responded to the following question:

Q. You sent a detainer up and said, "Don't turn him loose,” but did you do anything else to get him back down here? Did you p[ursue] any other routes until 1982?

A. Well, whatever the records show, I am sure we just didn't sit and wait. Telephone communications and whatnot, they would say "We will let you know when he is coming up for release,” and then every time we would get ready, I would have the deputies line up to go *913 up there, they would call back and say, "Hold it. He has violated the rules intentionally, because he doesn't want to go back to Virginia.”

J.A. 122 (emphasis added). The Commonwealth case record did not reflect any of the telephone communications referenced. Reliance on record testimony that is based on speculation in some instances and hearsay in others is speculation. J.A. 109-10, 122, 130.

. He states:

Q. Now, you said the Governor made you sign that you wouldn't ask for the death penalty when you brought him back. Which Governor was that in New York?

A. I don't remember his name.

Q. Was that the Governor who was Governor in 1985 through 1986?

A. Yes, it would be something from whoever was in office then, and I don't have any idea.

Q. Now, did any other Governor ever refuse to send him back from New York?

A. Not that I know of, no.

J.A. 134. Thus, in any event, the excuse offered only applies to the very end of the extraordinary delay at issue and is, therefore, not a sufficient excuse at all.

. Only on October 28, 1985, the same month New York paroled Jones to Virginia's custody, did the Assistant Commonwealth's Attorney write to New York to explain that Jones was not legally eligible for capital punishment. J.A. 20, Supp. J.A. 1. The only other evidence of New York's position is testimony by the Assistant Commonwealth's Attorney — the very same attorney who had some difficulty remembering details of the case and referred the questioner to the record. J.A. 118-24. The record was entirely silent as to New York's position, with the exception of the October 1985 letter.

My disagreement with the majority, however, is irrelevant to my ultimate point. If indeed New York's "apparent” fear of the death penalty was the alleged reason New York refused to extradite Jones prior to 1985, then it could have been easily cured well before 1985 because Jones was ineligible for the death penalty.

.While, as the majority states, two siblings testified at trial, in fact only one gave an eye-witness account of Jones committing the murders. The majority has criticized my clarification that two witnesses did not give eye-witness testimony of the murder. As the majority's footnote four reveals, however, the brother did not testify that he saw (i.e., witness with his eyes) Benjamin Jones pull the trigger. Thus it is inaccurate of the majority to say that two siblings gave eye-witness testimony.

. The Commonwealth of Virginia had at its disposal three different methods for obtaining temporary custody of Jones in order to try him. First, a state may obtain temporary custody through the Interstate Agreement on Detainers. Va.Code Ann. §§ 53.1-210 through 53.1.-215 (Michie 1994). Second, the Uniform Criminal Extradition Act allows a state to secure temporary custody over another state's prisoner in order to try him or her. Va.Code Ann. §§ 19.2-85 through 19.2-118 (Michie 1995). Finally, Virginia could have sought a writ of habeas corpus ad prosequendum. While such writs are normally used by federal courts to gain custody of individuals in state custody, state courts may issue the writs to other states. See, e.g., Stewart v. Bailey, 7 F.3d 384, 386 (4th Cir.1993).

. While the district court found that the evidence demonstrated that Jones was "at least as blameworthy for the delay” as the Commonwealth, the evidence only showed that for the period following 1982. J.A. 14. Prior to 1982, there is no evidence that Jones was responsible for the delay. Indeed, the evidence reflects that the Commonwealth failed to act at all during the vast majority of the delay — the period between 1975 and 1982.

. The delay was so extraordinary that the district court found that it verged on "actual prejudice perse." J.A. 13.

. As explained previously, all but one of the witnesses Jones named had disappeared in the long delay. And that one witness suffered from a faded memory due to the passage of time. All hotel records had been destroyed as the result of regular document destruction.