Hartridge v. United States

GLICKMAN, Associate Judge,

dissenting in part:

“It is axiomatic that the right to a speedy trial is a fundamental constitutional right.” Ante at 207 (internal quotation marks and citations omitted). So we have said, but flexible judicial application of the mandated four-factor balancing test repeatedly proves how “necessarily relative” rather than essentially fundamental the prized speedy trial right turns out to be in reality. Barker v. Wingo, 407 U.S. 514, 522 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972) (internal quotation marks and citation omitted). The Sixth Amendment terms it a “right,” but perhaps, regrettably, it would be more accurate to call it a speedy trial “preference” — a preference readily and unpredictably outweighed by numerous other factors, such as convenience. If we shrink from that characterization, and faithfully seek to preserve the guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial,” U.S. CONST., Amend. VI (emphasis added), we are obligated to apply the Barker balancing test with rigor and objectivity, and to resist trimming the right to avoid overturning convictions for serious offenses.

Elastic as I recognize the Barker balancing test is, I submit that the opinion of the. majority stretches it to the breaking point in rejecting appellant Hartridge’s speedy trial claim. Rather than strain to ignore or deny the obvious, I would acknowledge that in this case — unlike in every past case in which this court has found no deprivation of a speedy trial — all four relevant factors weigh heavily in favor of finding that Hartridge’s Sixth Amendment right was violated.

(1) Length of the Delay. Two-and-one-half years elapsed between Har-tridge’s arrest and the start of his trial. 1 *225 Under settled case law, this delay was clearly “uncommonly long,” “presumptively prejudicial,” and well beyond the threshold that is “unreasonable enough to trigger the Barker enquiry.” Doggett v. United States, 505 U.S. 647 , 651-52 & 652 n. 1, 112 S.Ct. 2686 , 120 L.Ed.2d 520 (1992) (internal quotation marks and citations omitted). See also Hammond v. United States, 880 A.2d 1066, 1079 (D.C.2005) (“A delay of a year or more between arrest and trial gives prima facie merit to a claim that a deprivation of an accused’s speedy trial rights has occurred.”) (quoting Tribble v. United States, 447 A.2d 766, 768 (D.C. 1982)). In evaluating the weight to be given this factor, I think it no sufficient answer to say that we have — on rare occasions in unique circumstances — “tolerated” or “countenanced” even more egregious delays. Ante at 208. It is the government’s burden to “justify” delay in excess of a year, and the longer the period of delay, the heavier that burden is. Graves v. United States, 490 A.2d 1086, 1091 (D.C. 1984) (en banc).

(2) Reasons for the Delay. In categorizing the various reasons for the delay of Hartridge’s trial as either significant, neutral, neutral plus, or neutral minus, it is easy to lose sight of the fact that all of them — including the government’s desire to try Hartridge jointly with his repeatedly unready co-defendants 2 — are “weighed more or less heavily against the government.” Ante at 209 (quoting Hammond, 880 A.2d at 1080 ) (emphasis added). That is, none of the proffered explanations enables the government to shoulder its burden of “justifying” the excessive delay. More significantly, I think the majority opinion tilts the balance too much in favor of preserving joinder of co-defendants at all costs, even when it means greatly delaying the trial of an incarcerated defendant who is invoking his right to be tried speedily. I grant that “[j]oinder of cases is favored, where appropriate, because it fosters efficient use of judicial and prose-cutorial resources and decreases the burden on citizens who are called as witnesses.” Ante at 210 (quoting Adams v. United States, 466 A.2d 439, 445 (D.C. 1983)). 3 I appreciate, too, that in some cases (including this one) the government may be concerned that its witnesses are at risk or fearful and would be reluctant to return for a second trial. For those reasons, a modicum of additional delay incurred to accommodate the conflicting schedules and legitimate needs of all the parties and their attorneys is a reasonable *226 price to require each individual defendant to pay so that all properly joined co-defendants may be tried together. 4 But there are limits to the amount of delay that should be deemed tolerable for joinder purposes (i.e., deemed not to “weigh heavily against the government”) over a defendant’s speedy trial objections, especially where the defendant is held without bond pending trial. I think those limits plainly were exceeded in Hartridge’s case, where the government concedes that nearly sixteen months of delay were “precipitated by co-defendants’ counsels or by the difficulty of coordinating the schedules of the trial court and counsel.”

Simply put, the non-constitutional reasons of policy that favor joinder — efficient use of resources and decreasing the burden on witnesses — are not so compelling that they outweigh the “fundamental” policy enshrined in the Constitution. Enforcement of a defendant’s right to a speedy trial may necessitate a “sensitive balancing” of relevant factors, Barker, 407 U.S. at 533 , 92 S.Ct. 2182 , but that necessity is not an excuse to whittle away the Sixth Amendment guarantee in favor of every other interest that may be advanced. A proper balancing must be “sensitive” to the high value we place on the right to a speedy trial. A defendant’s right to a speedy trial therefore must not be held hostage to co-defendants’ prolonged inability to proceed with trial, just as it must not be held hostage to the prosecution’s inability to do so.

(3) Assertion of the Right to a Speedy Trial. “The defendant’s assertion of his speedy trial right, the Supreme Court has said, ‘is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.’ ” Graves, 490 A.2d at 1098 (quoting Barker, 407 U.S. at 531-32 , 92 S.Ct. 2182 ). In my view, the most serious misjudgment in the majority opinion’s analysis of Hartridge’s claim is its failure to give due weight to his repeated and insistent demand for a speedy trial. I am not sure this court has ever seen a stronger showing on the third Barker factor. As the majority opinion itself recounts, ante at 205-07, Hartridge asked for a speedy trial at his arraignment on April 12, 1994, and requested a severance in order to expedite his trial date; objected to a continuance of the trial date at a status conference on July 19, 1994; reiterated his objection to any further postponement of the trial date at a status conference on October 6, 1994; opposed a continuance of the trial date on November 15, 1994; sought a severance at a pretrial conference on April 14, 1995, so that his scheduled May 31 trial date' would not be cancelled; followed up that request with a written speedy trial motion (which asked again for severance and trial on May 31 as an alternative to dismissal); reminded the trial court of this still-pending motion on June 23, 1995; personally as well as through his counsel opposed yet another delay of his trial at a status hearing on September 12, 1995; reiterated that opposition on September 29, 1995; and renewed his request for a severance on January 29, 1996, so that his trial could proceed without further delay. Hartridge never requested that his trial be continued. His invocation of his Sixth Amendment right to a prompt trial was not “merely pro forma,” Hammond, 880 A.2d at 1085 , nor was it untimely, erratic, insincere or frivolous. The trial court was well aware from the outset that Hartridge was consistently demanding not to be de *227 prived of his right to a speedy trial and was not acquiescing in the continuances-requested by other parties. If “the assertion of the right must be considered in light of its ‘frequency and force,’ ” ante at 210 (quoting Hammond, 880 A.2d at 1086 , and Dickerson v. United States, 650 A.2d 680, 685 (D.C.1994)), Hartridge’s assertions strongly support his claim. The majority’s contrary conclusion rests on an unduly selective, blinkered view of the record.

(4) Prejudice. “[T]he Speedy Trial Clause’s core concern is impairment of liberty.” United States v. Loud Hawk, 474 U.S. 302, 312 , 106 S.Ct. 648 , 88 L.Ed.2d 640 (1986). First and foremost, the Clause was intended “to prevent oppressive pretrial incarceration.” Barker, 407 U.S. at 532 , 92 S.Ct. 2182 . Thus, “[t]he speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial.... ” United States v. MacDonald, 456 U.S. 1, 8 , 102 S.Ct. 1497 , 71 L.Ed.2d 696 (1982). Given these principles, it cannot be denied that two-and-one-half years of pretrial incarceration — two-and-one-half years sitting in the restrictive and uncomfortable confínes of the D.C. Jail, one’s life on indefinite hold, waiting for one’s trial to commence — is very substantial prejudice, of the precise kind that the Speedy Trial Clause was meant to avoid. 5

Rather than admit that Hartridge unquestionably did suffer palpable prejudice from his prolonged incarceration, the majority opinion focuses its sights elsewhere and faults Hartridge for his inability to prove that his defense at trial was impaired. 6 His argument on that score, the majority opinion states, “lacks specificity.” Ante at 211. Then, from Hartridge’s inability to demonstrate with specificity that he was hindered in his defense, the majority opinion leaps incautiously to the conclusion that there was no such prejudice — a conclusion that “weighs heavily” in the majority’s determination of Hartridge’s speedy trial claim. Id. (citations omitted). There are two things fundamentally wrong with the majority’s reasoning.

First, and most important, whether or not impairment of one’s defense is “the most serious” type of prejudice from the denial of a speedy trial, Barker, 407 U.S. at 532 , 92 S.Ct. 2182 , it is not the only type, and the absence of such impairment is by no means fatal to Hartridge’s speedy trial claim. Graves, 490 A.2d at 1103 . Even if it is true that Hartridge’s defense at trial was not impaired, he suffered other cognizable and substantial prejudice on ac *228 count of what one court has called “the second most important factor” — his lengthy pretrial incarceration. Jackson v. Ray, 390 F.3d 1254, 1264 (10th Cir.2004); see also Berry v. State, 93 P.3d 222, 237 (Wy.2004) (holding that 720 days of pretrial detention “weighs heavily in favor” of defendant’s speedy trial claim). As the Supreme Court explained in Barker , “[t]he time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness.... The time spent in jail is simply dead time.” 407 U.S. at 532-33 , 92 S.Ct. 2182 . “Imposing those consequences on anyone who has not yet been convicted is serious.” Id. at 533 , 92 S.Ct. 2182 .

Second, the majority’s argument that Hartridge did not present affirmative evidence of prejudice to his defense

takes it only so far: consideration of prejudice is not limited to the specifically demonstrable, and ... affirmative proof of particularized prejudice is not essential to every speedy trial claim.... [Citations omitted.] Barker explicitly recognized that impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony “can rarely be shown.” 407 U.S. at 532 , 92 S.Ct. 2182 .... Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, see Loud Hawk, [474 U.S.] at 315, 106 S.Ct. 648 it is part of the mix of relevant facts, and its importance increases with the length of delay.

Doggett, 505 U.S. at 655-56 , 112 S.Ct. 2686 . If we take seriously what the Supreme Court has said about “presumptive prejudice,” then the burden must be on the government to rebut the presumption, i.e., in the present case, to demonstrate affirmatively that Hartridge’s defense suffered no material impairment as a result of the excessive pretrial delay. The majority opinion does not suggest that the government has carried that burden. Cf. Doggett, 505 U.S. at 658 n. 4, 112 S.Ct. 2686 (“While the Government ably counters Doggett’s efforts to demonstrate particularized trial prejudice, it has not, and probably could not have, affirmatively proved that the delay left his ability to defend himself unimpaired.”).

To my colleagues, Doggett “implies” that Hartridge’s speedy trial claim cannot succeed “absent either serious fault by the government in causing the lapse of time or specific prejudice to preparation of the defense.” Ante at 212. The case implies no such thing; I submit my colleagues misread the Supreme Court’s opinion. The threshold legal issue in Doggett and the Court’s resolution of it were the opposite of what my colleagues seem to think they were. The Court’s prior cases had said that “unreasonable delay between formal accusation and trial threatens to produce more than one sort of harm, including ‘oppressive pretrial incarceration,’ ‘anxiety and concern of the accused,’ and ‘the possibility that the [accused’s] defense will be impaired’ by dimming memories and loss of exculpatory evidence.” 505 U.S. at 654 , 112 S.Ct. 2686 (citations omitted). In Dog-gett, however, the government contended (in rather striking contrast to its present position) that the Speedy Trial Clause is not intended to prevent prejudice to the defense, but is intended only to prevent oppressive pretrial incarceration and anxiety of the accused; i.e., that only pretrial deprivation of liberty and anxiety could be relied upon to establish a speedy trial violation. See 505 U.S. at 654 , 112 S.Ct. 2686 ; *229 see also id. at 660 , 112 S.Ct. 2686 et seq. (Thomas, J., dissenting). 7 While the Supreme Court held that the Speedy Trial Clause is indeed concerned as well with prejudice to the accused’s defense, by no stretch of the imagination did the Court cast doubt on the Clause’s unquestioned purpose of preventing oppressive pretrial incarceration and anxiety on the part of the accused. My colleagues’ mistaken inference that impairment of the accused’s ability to defend himself is, after Doggett , a virtual sine qua non of a successful speedy trial claim, founders on the Supreme Court’s explicit holding that “the speedy trial enquiry must weigh the effect of delay on the accused’s defense just as it has to weigh any other form of prejudice that Barker recognized.” Id. at 655, 112 S.Ct. 2686 (emphasis added).

In support of their reading of Doggett , my colleagues quote a single brief passage out of context — the Court’s statement that “if the Government had pursued Doggett with reasonable diligence from his indictment to his arrest, his speedy trial claim would fail ... as a matter of course however great the delay, so long as Doggett could not show specific prejudice to his defense.” Ante at 212 (quoting Doggett, 505 U.S. at 656 , 112 S.Ct. 2686 ) (emphasis added). In context, this statement merely reflects the fact that prejudice to his defense was the only prejudice Doggett claimed or could claim. See 505 U.S. at 654 , 112 S.Ct. 2686 . Because Doggett was not detained before trial, he could not claim prejudice from pretrial incarceration (and, as he was unaware of the pending criminal charges, he suffered no pretrial anxiety). At most, therefore, the Supreme Court’s statement means only that in the absence of government fault, an unincar-cerated defendant will need to show specific prejudice to his defense in order to prevail on a speedy trial claim. The statement cannot logically or fairly be taken to imply that a defendant who has been deprived of his liberty for a prolonged period also will need to show such prejudice. 8

Thus, I think that the fourth Barker factor, like the other three if not more so, weighs heavily in favor of finding a deprivation of Hartridge’s Sixth Amendment right. I cannot fathom how the majority can dismiss two-and-one-half years of imprisonment without trial and say that Har-tridge’s claim of prejudice “is simply unpersuasive on this record.” Ante at 213.

In sum, to return now to where I began in this dissent, it seems to me that if we apply the Barker balancing test with rigor and objectivity, the only conclusion we properly can reach is that Hartridge was deprived of his Sixth Amendment right to a speedy trial. While this court has issued many past decisions finding no speedy trial violation, I am unaware of any such decision (and the majority opinion does not cite a single one) with a comparably strong showing by the defendant on each of the *230 four Barker factors. 9 Accordingly, I am obliged to dissent from the affirmance of Hartridge’s convictions.

. Before the trial proper got under way, nearly three months were taken up with hearings on the defendants’ various motions. Treating the starting date of the motions hearings as the relevant trial commencement date, the majority therefore measures the length of the *225 pretrial delay in this case as two years and three months rather than two-and-a-half years-. While I do not consider the three-month difference to be material to my speedy trial analysis, I think two-and-a-half years may be a better measure of the pretrial delay that Hartridge was obliged to endure on account of the trial court’s refusal to expedite his trial by severing his case from the cases of his co-defendants. Had the court granted severance, I am confident it would have conducted the hearings on Hartridge’s motions alone in appreciably less than three months (though precisely how much less I cannot say).

. See Hammond, 880 A.2d at 1081 ("[T]he government bears responsibility for delays occasioned by requests of co-defendants, since the government chooses to try defendants jointly.”); Ruffin v. United States, 524 A.2d 685, 688-89 (D.C.1987) (same); Townsend v. United States, 512 A.2d 994, 999 (D.C.1986) (stating that government’s desire for joint trial "does not excuse” the resulting delay "or render it neutral”); Gaffney v. United States, 421 A.2d 924, 928 (D.C.1980) ("While much of the delay was attributable to Gaffney’s unpreparedness, the consequential delay of Engram’s trial is somewhat weighed against the government because the government chose to try the appellants jointly.”).

. I find it a bit ironic, though, that excessive delay should be deemed acceptable in the interests of efficiency.

. In Ruffin, Townsend, Adams, and Gaffney , only a few months of the pretrial delay was attributable to joinder of co-defendants.

. We cannot dismiss this most basic form of prejudice on the ground that Hartridge ultimately was found guilty at trial and sentenced to a lengthy prison term, nor does anyone suggest that we should. The majority opinion discounts Hartridge’s lengthy pretrial incarceration, however, because greater delay "will be tolerated” in cases involving "more serious and complex... charge[s],” ante at 211 (internal quotation marks and citations omitted). On the question of prejudice from pretrial incarceration (as opposed to the mere length of the delay), this statement is a non sequitur; that aside, the short rejoinder is that the seriousness and complexity of the charges in this case were not the reason Hartridge’s trial was delayed. Both the prosecution and Hartridge were ready for trial not long after Hartridge was arraigned.

. The majority opinion also discounts — rather cavalierly, some might think — the anxiety and concern that Hartridge "may have suffered" while he awaited trial on a first-degree murder charge, ante at 211, noting that he points to no specific impact on his health or other aspects of his life. Although I find the majority’s reasoning unpersuasive, I think it unnecessary to belabor the point. The anxiety and concern that an accused "may” suffer are a form of prejudice separate and distinct from that of oppressive pretrial incarceration. See Barker, 407 U.S. at 532 , 92 S.Ct. 2182 ; Graves, 490 A.2d at 1101 .

. The government argued that "the effect of delay on adjudicative accuracy is exclusively a matter for consideration under the Due Process Clause.” Id. at 655 n. 2, 112 S.Ct. 2686 .

. Doggett also demonstrates the fallacy in any suggestion, see ante at 212 n. 17, that more than one form of cognizable prejudice must be shown for a speedy trial claim to succeed in the absence of serious governmental fault. Under Doggett , proof that the defendant sustained even one form of prejudice may suffice. None of the cases cited by the majority indicate otherwise, for the defendants in United States v. Stephenson, 891 A.2d 1076, 1076 (D.C.2006), District of Columbia v. Cruz, 828 A.2d 181, 183 (D.C.2003), and Akins v. United States, 679 A.2d 1017, 1024 (D.C.1996), suffered no (or virtually no) prejudice whatsoever of any type the Speedy Trial Clause was intended to prevent.

. In Hammond , for example, this court found no speedy trial violation even though fifty-four months elapsed before Hammond's trial was held. But that case is distinguishable from this one in three crucial respects. First, unlike Hartridge, Hammond acquiesced in much of the delay (some of which was attributable to his own counsel’s scheduling difficulties), and his assertion of a right to a speedy trial was belated, pro forma, and undercut by his "expressed” preference not to be tried until after his co-defendant. 880 A.2d at 1086 . Second, unlike Hartridge, Hammond did not suffer prejudice from pretrial incarceration, because he was lawfully incarcerated anyway on other, unrelated federal charges "during most of the period of delay.” Id. at 1086 . (Nor did Hammond establish other significant prejudice.) Third, unlike in Hartridge's case, sixteen months of the pretrial delay in Hammond’s case was deemed "justified” (almost all the balance was given “neutral” weight) because it related to the government’s successful interlocutory appeal of an evidence suppression ruling and the government sought to expedite the appeal (while Hammond did not). Id. at 1083-85, 1108-09 . Thus, unlike in this case, in Hammond only the first Barker factor, the length of the delay, strongly supported the speedy trial claim.