Reed v. United States

KELLY, Associate Judge,

concurring in the result:

It is now beyond dispute that in this jurisdiction a delay of one year between arrest and trial, for whatever reasons, gives prima facie merit to a claim of a denial of the right to a speedy trial. United States v. Clark, D.C.App., 376 A.2d 434 (1977); Branch v. United States, D.C.App., 372 A.2d 998 (1977); United States v. Mack, D.C. App., 298 A.2d 509 (1972); United States v. Holt, 145 U.S.App.D.C. 185 , 448 F.2d 1108 , cert. denied, 404 U.S. 942 , 92 S.Ct. 292 , 30 L.Ed.2d 257 (1971); Hedgepeth v. United States, 124 U.S.App.D.C. 291 , 364 F.2d 684 (1966). Such a lengthy delay is “presumptively prejudicial” as that term is used in Barker v. Wingo, 407 U.S. 514, 530 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972), and places on the government an obligation to justify the delay. Branch v. United States, supra; Smith v. United States, 135 U.S.App.D.C. 284 , 418 F.2d 1120 , cert. denied, 396 U.S. 936 , 90 S.Ct. 280 , 24 L.Ed.2d 235 (1969). To me the disturbing aspect of this case is that a large part of the fifteen-month delay between arrest and trial was caused by a trial judge’s failure to rule on appellant’s motions to compel discovery and to dismiss the indictment which, in turn, necessitated several trial continuances. 1 This period approximated one year from the filing of the motions to decision (ten months from the hearing on the motions to decision) and was an institutional delay chargeable to the government in the Barker v. Wingo weighting process. United States v. Brown, 172 U.S.App.D.C. 92 , 520 F.2d 1106 (1975); United States v. West, 164 U.S.App.D.C. 184 , 504 F.2d 253 (1974).

In my judgment, however regrettable it is that all legal decisions are not made within reasonable time limits, if they are not, the decisional delay becomes unreasonable and weighs heavily against the government in the speedy-trial balancing process. Inordinate delays in deciding motions in the trial court and, indeed, inordinate delays in the appellate process are not readily justified or excused. See, e. g., United States v. Sarvis, 173 U.S.App.D.C. 228 , 523 F.2d 1177 (1975); United States v. Brown, supra; United States v. West, supra; United States v. Perry, 353 F.Supp. 1235 (D.D.C.1973). Having expressed this concern, however, I nevertheless agree that the delay here, when weighed with the other balancing factors, does not require dismissal of the indictment for lack of a speedy trial.

As to the logic of Judge Leventhal’s suggestion in Bundy, 2 it was accepted by this court in Jones v. United States, D.C.App., 343 A.2d 346, 352 (1975), where we said:

Consequently, we think that in a proper case arising in the future the trial judge may in lieu of any other sanction charge the jury with a variant of the so-called missing witness instruction.

In any event, it is sufficient, without more, to say that the substance of the lost notes *324 was incorporated in the radio description, see Moore v. United States, D.C.App., 363 A.2d 288 (1976), and therefore a type of missing witness instruction was inappropriate in this case.

. One such continuance was for a period of five months. Appellant objected to this continuance and to one other, and there is, of course, no significant difference between an objection to a request for a continuance and a motion to dismiss for lack of a speedy trial.

. In some circumstances, and particularly in the face of a general routine of preservation, such as the D.C. police have established, the absence of notes may be the kind of mishap best handled by instructing the jury with an adaptation of the kind of instruction used in case of a missing witness, that the jury is free to infer that the missing original notes would have been different from the testimony at trial and would have been helpful to defendant. . . . [United States v. Bundy, 153 U.S.App.D.C. 191, 194 , 472 F.2d 1266, 1269 (1972) (Leventhal, J., concurring).]