noting, in context of constitutional speedy trial analysis, that "court congestion is not the responsibility of the defendant and must be weighed against the Commonwealth in assessing the reasons for the delay"
How later courts described this case
- noting, in context of constitutional speedy trial analysis, that "court congestion is not the responsibility of the defendant and must be weighed against the Commonwealth in assessing the reasons for the delay"
- “Although the issue does not appear to have been presented to this court previously, we think it is clear that the jury must be [so] instructed”
- inferences drawn by jury “need only be reasonable and possible,” not “necessary or inescapable”
- “An officer may testify to events observed, even if the observations are made outside any town or city for which the officer works or where the officer has authority to arrest.”
Written by the judges who cited it.
The opinion
Liacos, J.
(concurring, with whom Abrams, J., joins). This case involves a delay between the date of indictment and trial longer than any delay heretofore considered by this court (fifty-five months), although not quite so long as that involved in Barker v. Wingo, 407 U.S. 514 (1972) (sixty months). I agree that the majority has correctly stated and applied the prevailing constitutional doctrine under both the Federal and State Constitutions. I agree further that the record supports the finding of the motion *344 judge that the defendant failed to show either intentional delay by the prosecution or prejudice to the defendant.
This case, however, seems an appropriate one in which the court should recognize that although court congestion is systemic and chargeable to the Commonwealth, a stronger burden of responsibility belongs on the prosecution. It is, after all, the district attorneys who control the trial lists. G. L. c. 278, § 1. The right to control the trial list given prosecutors by this statute imposes a corresponding obligation on them. Prosecutors have an affirmative duty to maintain current lists of cases for trial. Thus, it seems a fair inference on a record such as this, that while, as the majority state, “[t]he defendant has failed to show a diligent, or even casual, attempt to obtain a speedy trial,” neither did the prosecution seek to bring the matter to trial. Court congestion may be the cause in part, but surely nothing in this record or generally known to the court justifies the view that congestion dictated the lengthy delay involved here.
In such circumstances, the prosecution could well be charged with failing to meet its obligation under the statute, as well as to both the Commonwealth and the defendant. Dilatory tactics by this defendant are not shown on this record; hence, if delay is not caused by intentional design of the prosecution nor its length explained by court congestion, a proper conclusion is prose-cutorial disinterest or neglect.
On such a record it seems to me this court should take the stance based on its general superintendence powers under G. L. c. 211, § 3, and the duties of prosecutors under G. L. c. 278, § 1, that the burden falls on the prosecution in a proceeding on a motion to dismiss to (a) justify or explain the delay, and (b) prove lack of prejudice to a defendant. Failing proof of either, the indictment ought to be dismissed.
I concur in the result because I believe the constitutional rights of the defendant were not shown to be violated. Nor do I think it fair to the prosecution to apply a standard, such as suggested here, in a retroactive way. I *345 note that the problem most likely will be resolved in a more satisfactory manner if Proposed Rule of Criminal Procedure 37, now under consideration by this court, is adopted in some form. 1 What I have suggested here would be, however, a useful standard to apply where the facts indicate it appropriate in the interim period until a new rule becomes effective.
See especially proposed subsection (c) which provides: “DISMISSAL FOR PREJUDICIAL DELAY. Notwithstanding the fact that a defendant is not entitled to a dismissal under subdivision (b) of this rule, a defendant shall, upon motion, be entitled to a dismissal where the court after an examination and consideration of all attendant circumstances determines that: (1) the conduct of the prosecuting attorney in bringing the defendant to trial has been unreasonably lacking in diligence and (2) this conduct on the part of the prosecuting attorney has inured to the prejudice of the defendant.”