Opposition Brief — Lloyd Harris, Petitioner v. Maryland

No. 20-101

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IN THE

SUPREME COURT OF THE UNITED STATES

————————

LLOYD HARRIS,

Petitioner,

v.

STATE OF MARYLAND,

Respondent.

————————

ON PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS OF MARYLAND

————————

BRIEF IN OPPOSITION

————————

BRIAN E. FROSH

Attorney General of Maryland

CARRIE J. WILLIAMS

Counsel of Record

SARAH PAGE PRITZLAFF

JER WELTER

Assistant Attorneys General

Office of the Attorney General

Criminal Appeals Division

200 Saint Paul Place

Baltimore, Maryland 21202

(410) 576-6422

cwilliams@oag.state.md.us

Attorneys for the State of Maryland

QUESTION PRESENTED

Did the Maryland courts properly reject Petitioner’s claim that he was deprived

of due process by preindictment delay where the Maryland courts correctly applied

the conjunctive test for deciding such claims that has been adopted in a substantial

majority of federal and state jurisdictions, where Petitioner never asked the lower

courts to apply the minority balancing test he now advocates, and where Petitioner

would not prevail even under the balancing test on the existing record?

i

TABLE OF CONTENTS

QUESTION PRESENTED .......................................................................................... i

TABLE OF AUTHORITIES ...................................................................................... iv

STATEMENT ............................................................................................................... 1

STATEMENT OF THE CASE .................................................................................... 2

A.

B.

The rape and murder ............................................................................... 2

1.

Stacy Hoffmaster’s disappearance ................................................ 2

2.

The crime scene and the forensic evidence ................................... 3

3.

Harris’s statements ....................................................................... 5

The motion to dismiss for preindictment delay and the lower

courts’ rulings ........................................................................................... 7

1.

The trial court proceedings ........................................................... 7

2.

The appellate court proceedings ................................................. 11

REASONS FOR DENYING THE PETITION ........................................................ 12

I.

II.

HARRIS CONCEDED APPLICATION OF THE CONJUNCTIVE TEST

IN THE COURTS BELOW AND, AS A RESULT, THE QUESTION

PRESENTED IS NOT PRESERVED AND THE RECORD IS

INADEQUATE TO APPLY THE BALANCING TEST HE

ADVOCATES. ................................................................................................... 12

A.

Harris’s argument that the balancing test applies is not

preserved. ............................................................................................... 12

B.

The record is not adequate to apply the balancing test because the

State was not required to elaborate its reasons for the delay. ............. 14

APPLICATION OF THE BALANCING TEST WOULD NOT AFFECT

THE OUTCOME IN THIS CASE. .................................................................... 16

A.

Under either the conjunctive test or the balancing test, the

defendant must demonstrate actual, substantial prejudice. ................ 16

ii

III.

B.

The trial court did not find that Harris satisfied the actualprejudice prong. ...................................................................................... 19

C.

Harris’s claim that unavailable evidence satisfied the actualprejudice prong is misleading and meritless. ........................................ 22

THE SPLIT OF AUTHORITY IS NOT DEEP OR CONSEQUENTIAL

ENOUGH TO REQUIRE RESOLUTION BY THIS COURT. ........................ 28

A.

The conflict of authority is not as deep as Harris suggests. ................. 28

B.

The conflict of authority is not consequential. ...................................... 33

CONCLUSION ........................................................................................................... 36

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Arizona v. Youngblood,

488 U.S. 51 (1988) .......................................................................................... 32

Betterman v. Montana,

136 S. Ct. 1609 (2016) .................................................................................... 32

Clark v. State,

364 Md. 611 (2001) ................................................................................... 11, 16

Commonwealth v. Dame,

45 N.E.3d 69 (Mass. 2016) ............................................................................. 34

Commonwealth v. Scher,

803 A.2d 1204 (Pa. 2002).......................................................................... 33, 34

Glover v. United States,

532 U.S. 198 (2001) ........................................................................................ 12

Gonzales v. State,

805 P.2d 630 (N.M. 1991) ......................................................................... 29, 35

Harris v. State,

242 Md. App. 655 (2019) .......................................................................... 12, 16

Harrison v. United States,

528 A.2d 1238 (D.C. 1987).............................................................................. 34

Hoo v. United States,

484 U.S. 1035 (1988) ...................................................................................... 35

Howell v. Barker,

904 F.2d 889 (4th Cir. 1990) .......................................................................... 17

iv

Jackson v. State,

614 S.E.2d 781 (Ga. 2005) .............................................................................. 33

Jones v. Angelone,

94 F.3d 900 (4th Cir. 1996) ................................................................ 17, 18, 30

Rogers v. State,

511 So.2d 526 (Fla. 1987) ............................................................................... 30

Sochor v. Florida,

504 U.S. 427 (1992) ........................................................................................ 14

State ex rel. Knotts v. Facemire,

678 S.E.2d 847 (W. Va. 2009)......................................................................... 27

State v. Brown,

656 N.W.2d 355 (Iowa 2003) .................................................................... 29, 33

State v. Cote,

118 A.3d 805 (Me. 2015) ........................................................................... 25, 33

State v. Cyr,

588 A.2d 753 (Me. 1991) ................................................................................. 30

State v. Davis,

201 P.3d 185 (Ore. 2008) ................................................................................ 25

State v. Duran,

581 P.2d 19 (N.M. 1978) ................................................................................. 29

State v. Hales,

152 P.3d 321 (Utah 2007) ............................................................................... 19

State v. Hutchins,

433 A.2d 419 (Me. 1981) ................................................................................. 30

State v. Knickerbocker,

880 A.2d 419 (N.H. 2005) ......................................................................... 19, 33

v

State v. Laird,

447 P.3d 416 (Mont. 2019) ............................................................................. 33

State v. Luck,

472 N.E.2d 1097 (Ohio 1984) ......................................................................... 34

State v. Mouser,

806 P.2d 330 (Alaska App. 1991) ................................................................... 17

State v. Oldson,

884 N.W.2d 10 (Neb. 2016) ............................................................................ 18

State v. Richardson,

70 N.E.3d 1175 (Ohio Ct. App. 2016) .............................................................. 2

State v. Stock,

361 N.W.2d 280 (S.D. 1985) ........................................................................... 35

State v. Stokes,

248 P.3d 953 (Ore. 2011) .......................................................................... 19, 34

State v. Vanasse,

593 A.2d 58 (R.I. 1991) ................................................................................... 27

State v. Whiting,

702 N.E.2d 1199 (Ohio 1998) ......................................................................... 34

State v. Williams,

264 N.W.2d 779 (Iowa 1978) .......................................................................... 29

United State v. Marion,

404 U.S. 307 (1971) .............................................................................1, passim

United States v. $8,850,

461 U.S. 555 (1983) ........................................................................................ 32

United States v. Barken,

412 F.3d 1131 (9th Cir. 2005) ........................................................................ 31

vi

United States v. Benson,

846 F.2d 1338 (11th Cir. 1988) ...................................................................... 34

United States v. Bracy,

67 F.3d 1421 (9th Cir. 1995) .......................................................................... 31

United States v. Breitkreutz,

8 F.3d 688 (9th Cir. 1993) .............................................................................. 31

United States v. Butz,

982 F.2d 1378 (9th Cir. 1993) ........................................................................ 32

United States v. Cornielle,

171 F.3d 748 (2d Cir. 1999) ............................................................................ 33

United States v. Corona-Verbera,

509 F.3d 1105 (9th Cir. 2007) ........................................................................ 31

United States v. Crooks,

766 F.2d 7 (1st Cir. 1985) ............................................................................... 16

United States v. Crouch,

84 F.3d 1497 (5th Cir. 1996) .............................................................17, passim

United States v. DeGeorge,

380 F.3d 1203 (9th Cir. 2004) ........................................................................ 31

United States v. Doe,

149 F.3d 945 (9th Cir. 1998) .......................................................................... 31

United States v. Dudden,

65 F.3d 1461 (9th Cir. 1995) .......................................................................... 31

United States v. Farris,

614 F.2d 634 (9th Cir. 1979) .......................................................................... 31

United States v. Gilbert,

266 F.3d 1180 (9th Cir. 2001) ........................................................................ 31

vii

United States v. Gouveia,

467 U.S. 180 (1984) ........................................................................................ 32

United States v. Gregory,

322 F.3d 1157 (9th Cir. 2003) ........................................................................ 31

United States v. Hoslett,

998 F.2d 648 (9th Cir. 1993) .......................................................................... 31

United States v. Huntley,

976 F.2d 1287 (9th Cir. 1992) ........................................................................ 32

United States v. Irizarry-Colón,

848 F.3d 61 (1st Cir. 2017) ............................................................................. 33

United States v. Jackson,

446 F.3d 847 (8th Cir. 2006) .......................................................................... 29

United States v. Jessee,

605 F.2d 430 (9th Cir. 1979) .......................................................................... 31

United States v. King,

560 F.2d 122 (2d Cir. 1977) ............................................................................ 34

United States v. Lovasco,

431 U.S. 783 (1977) .............................................................................1, passim

United States v. Manning,

56 F.3d 1188 (9th Cir. 1995) .......................................................................... 31

United States v. Martinez,

77 F.3d 332 (9th Cir. 1996) ............................................................................ 31

United States v. Mills,

280 F.3d 915 (9th Cir. 2002) .......................................................................... 31

United States v. Moran,

759 F.2d 777 (9th Cir. 1985) .............................................................. 17, 31, 34

viii

United States v. Pardue,

134 F.3d 1316 (7th Cir. 1998) ........................................................................ 33

United States v. Rogers,

118 F.3d 466 (6th Cir. 1997) .................................................................... 18, 34

United States v. Ross,

123 F.3d 1181 (9th Cir. 1997) ........................................................................ 31

United States v. Sherlock,

962 F.2d 1349 (9th Cir. 1989) ........................................................................ 31

United States v. Sowa,

34 F.3d 447 (7th Cir. 1994) ............................................................................ 34

United States v. Tornabene,

687 F.2d 312 (9th Cir. 1982) .......................................................................... 31

United States v. Townley,

665 F.2d 579 (5th Cir. 1982) .......................................................................... 28

United States v. Walker,

601 F.2d 1051 (9th Cir. 1979) ........................................................................ 31

United States v. Weaver,

565 F.2d 129 (8th Cir. 1977) .......................................................................... 29

Webb v. Webb,

451 U.S. 493 (1981) ........................................................................................ 13

Wyman v. State,

217 P.3d 572 (Nev. 2009) ............................................................................... 33

ix

STATEMENT

Petitioner Lloyd Harris asks the Court to resolve a conflict among the lower

courts regarding the standard for establishing a violation of due process by reason of

excessive preindictment delay.

The question presented is whether to apply the

conjunctive test that Harris acknowledges is applied in at least nine federal circuits

and over two-thirds of the states that have decided the question, Pet. 9-10 & nn.4-5,

or instead to apply Harris’s favored standard, a balancing test that only two circuits

and a small minority of states endorse. Pet. 13 & nn.6-7. For three reasons, this

Court should decline to consider the question of which test to apply in this case.

First, Harris’s question presented is not preserved and, consequently, the

record is inadequate to apply the balancing test that he advocates for the first time

in this Court. Harris expressly stated in the lower courts that the conjunctive test

applied. That test did not require the State to proffer the reasons for the delay, and

the trial court correctly did not insist that the State do so. As a result, even though

the State assured the trial court that there were reasons for the delay and that the

prosecution had acquired new evidence, the record does not detail the reasons that

might explain the delay.

Second, Harris would not prevail under the balancing test he endorses because

it, like the conjunctive test, requires a showing that the defense suffered substantial,

“actual prejudice” that rises to the materiality contemplated by this Court’s decisions

in United States v. Lovasco, 431 U.S. 783, 789-90 (1977), and United State v. Marion,

404 U.S. 307, 326 (1971) (recognizing that “the real possibilit[ies] of prejudice

inherent in any extended delay: that memories will dim, witnesses will become

inaccessible, and evidence be lost” are “not in themselves enough to demonstrate that

[a defendant] cannot receive a fair trial and to therefore justify the dismissal of the

indictment”). Although the deferral of Harris’s indictment might have exposed him

to the “possibility of prejudice inherent in any extended delay,” id., the only examples

of purported prejudice he identified in support of his motion to dismiss were either

factually mistaken or otherwise failed to establish the requisite actual prejudice

because he could not “demonstrate a viable, tangible connection between the missing

evidence or the unavailable witness to the defense of the case.” State v. Richardson,

70 N.E.3d 1175, 1179 (Ohio Ct. App. 2016) (applying the balancing test).

Third, although Harris is correct that lower courts are divided on whether to

apply the conjunctive test or the balancing test, the division of authority is neither so

deep nor so consequential as to demand this Court’s review. Indeed, the cases suggest

that, in practice, the theoretical distinction between the competing tests is rarely

outcome determinative.

STATEMENT OF THE CASE

A.

The rape and murder

1.

Stacy Hoffmaster’s disappearance

On Tuesday, October 1, 1996, fifteen-year-old Stacy Hoffmaster disappeared.

She went to school in the morning but told her best friend, Jamie Hurst, that she had

decided to skip school. Tr. 10/24/17 at 106-08. Stacy walked to McCutcheon’s Apple

Factory, where her boyfriend, Alfred Fisher, worked and arranged to meet him during

his lunch break. Id. at 62-63.

2

Fisher and Stacy ate lunch together. Id. at 63-65. Outside Stacy’s house, they

saw Harris, whom Fisher knew as “weed man.” Id. at 66-68. Stacy asked Harris if

he had any marijuana and Harris said he only had a joint. Id. at 70-71. When Fisher

left to return to work, Stacy was standing in front of her house and Harris was sitting

in a pavilion near a baseball field that was beside Stacy’s house. Id. at 71.

At 1:30 or 1:45 p.m., Stacy’s mother, Vickie Hoffmaster, drove by the house and

saw Stacy sitting on the front porch. Id. at 34, 39-40. When Ms. Hoffmaster returned

home from taking her oldest son to work, Stacy was gone. Id. at 40. Stacy did not

meet Fisher outside McCutcheon’s, as they had planned, when he got off work at 3:00

p.m. Id. at 65-66, 71-72. Stacy was last seen wearing a blue hooded sweatshirt and

sweatpants with the logo of a volunteer fire department, and white Fila sneakers. Id.

at 40, 79-80.

2.

The crime scene and the forensic evidence

Almost three months later, on December 23, 1996, Stacy’s naked body was

discovered 30 feet inside the woods near her house, 50 yards from a makeshift

campsite Harris had constructed in the woods. Id. at 153, 159. Her body was covered

by a blue mover’s blanket. Id. at 160-61; Tr. 10/25/17 at 88. A ligature was wrapped

tightly around her neck and a sock was shoved down her throat. Tr. 10/24/17 at 19394, 199; Tr. 10/25/17 at 87. The body was “hog-tied” with a yellow nylon rope, which

was attached at one end to a railroad spike. Tr. 10/24/17 at 153, 193.

Blankets and ropes like those found with the body were found at Harris’s

campsite. Id. at 204-06. In the woods near the campsite, police found the clothing

3

Stacy had been wearing when she was last seen. Id. at 43-44, 79-80, 207, 215, 218,

221, 226-28, 233. Her underpants and bra were torn. Id. at 23, 207, 211, 258; Tr.

10/25/17 at 58, 64; Tr. 11/1/17 at 78.

An autopsy revealed that Stacy received a forceful blow to the right side of her

forehead prior to death. Tr. 10/27/18 at 23-25. Starchy food fragments consistent

with Stacy’s lunch were found in her stomach and indicated that a small meal had

been eaten within a few hours of death. Id. at 25-27. The cause of death was

strangulation. Id. at 27-28.

Specimens collected during the autopsy, including swabs from the vaginal

cavity, were submitted to the toxicology department of the Office of the Chief Medical

Examiner for Maryland. Tr. 10/26/17 at 125-26; Tr. 10/27/17 at 34-35. Dr. Barry

Levine, who was the chief toxicologist in 1996, testified about the standard operating

procedures and quality assurance processes for the analysis of prostatic acid

phosphatase that was conducted on the vaginal swabs. Tr. 10/26/17 at 121, 126-33.

Although pursuant to a three-year retention policy “the actual measurements that

the spectrophotometer” made had been discarded, Dr. Levine testified that he

reviewed all the raw data when the analysis was conducted in 1996, he ensured that

the standard operating procedures and quality controls were followed in conducting

the analysis, and he determined what should be included in the final report and

signed it, certifying that the results were accurate and scientifically valid. Id. at 12731, 134, 138. The report was admitted in evidence without objection. Id. at 134. The

4

vaginal swab contained 430 micrograms per liter of prostatic acid phosphatase; a

level of 100 or more is potentially significant. Id. at 133-34.

DNA testing of a vaginal swab submitted to the Maryland State Police Forensic

Services Division showed that a sperm was present. Id. at 41-42, 54-55, 59-61.

Further DNA testing of the vaginal swab by Bode Technology in 1998 concluded that

Harris could not be excluded from the DNA extracted from the sperm fraction. Id. at

87, 92, 103-04.

Dr. Stephen Cina was accepted without objection as an expert in forensic

pathology. He testified that the high level of prostatic acid phosphatase in the vagina

indicated within a reasonable degree of medical probability that sexual intercourse

had taken place within a few hours of death and no later than 24 hours prior to death.

Tr. 10/27/17 at 36, 43, 65-66. Based on the high level of prostatic acid phosphatase

in the vagina, the presence of sperm in the vaginal cavity, and the circumstances in

which the body was found,1 Dr. Cina concluded within a reasonable degree of medical

probability that semen was deposited in the vagina shortly before death. Id. at 11,

39-40, 43.

3.

Harris’s statements

On December 24, 1996, Harris, age 33, was interviewed at the police station

by then-Detective Jeff Hutchinson. Harris stated that he built the camp between

1

Dr. Cina explained that the crime scene—a strangled, naked, bound female in

a wooded area—“just screams at you that this is a sex-related homicide.” Tr. 10/27/17

at 35-36, 44.

5

1992 and 1993 when he separated from his wife and had lived there continuously

until July 4, 1996. Tr. 10/25/17 at 96-97. Harris explained that he built the camp to

get away from his mother and to smoke marijuana. Id. at 98. Harris said he only

knew of Stacy because she lived near his mother’s house and he had seen her waiting

outside McCutcheon’s for her boyfriend. Id. at 100-02.

In a second interview with Detective Hutchinson on January 28, 1997, Harris

added that when he saw Stacy outside McCutcheon’s, she asked for weed but he

cursed at her and told her to leave him alone because Stacy’s boyfriend did not want

her to smoke marijuana. Id. at 112-17.

On December 17, 1998, the third time Detective Hutchinson spoke with Harris,

Detective Hutchinson was wearing a microphone under his shirt. Id. at 125, 127.

They were together for about six hours. Id. at 137. During that time, they chatted

at Harris’s mother’s house, picked up Harris’s paycheck, spent a couple of hours at a

coffee shop, and walked around the woods looking at the paths, other encampments,

and the railroad tracks. Id. at 124-25, 129-33, 177-78; Tr. 10/27/17 at 103-04. The

body-wire recording could not be located by the time of trial, but Detective

Hutchinson stated that the quality of a “wire” was poor back then and that the quality

of this recording was “very poor” because his clothing kept rubbing against the

microphone. Tr. 10/25/17 at 127-28. Much of the conversation with Harris was not

relevant to the investigation, and Detective Hutchinson noted anything of

significance in his report. Id. at 129-30.

6

Near the end of their time together, Detective Hutchinson asked Harris

whether he had ever had sex with Stacy. Harris repeatedly denied it. Id. at 133, 179.

But when confronted with evidence that his DNA was inside Stacy’s vagina, Harris

said that it was impossible because he used a “jimmy,” or condom. Id. at 133. Harris

then said that he and Stacy had gotten together on Saturday, three days before she

was last seen, to smoke marijuana and have sex behind a church close to Stacy’s

house. Id. at 134-35, 184. Detective Hutchinson told Harris that he potentially could

be charged with Stacy’s murder, to which Harris replied, “Well, if I did kill her, it was

an accident.” Id. at 136.

A fourth interview with Harris was conducted on January 29, 2016, after his

arrest. Tr. 10/27/17 at 80-81. During the video and audiotaped interview, Harris

stated that a couple of weeks or days before her disappearance, Stacy traded sex for

“herb.” Id. at 99-101, 135. Harris acknowledged telling Detective Hutchinson during

the 1998 interview, “If I did it, it was an accident,” and he repeated that statement

at least six more times during the interview. Id. at 104-05, 108-11, 113-16, 122. In

a written statement to Stacy’s family, Harris again stated, “If it were me, I can only

say it must have been an accident . . . .” Id. at 150; State’s Ex. 92.

B.

The motion to dismiss for preindictment delay and the

lower courts’ rulings

1.

The trial court proceedings

Harris was indicted in the Circuit Court for Frederick County, Maryland, on

January 22, 2016. Pet. App. 2a-3a. The length of the preindictment delay was a little

7

more than 19 years.2 Prior to trial, Harris filed a motion to dismiss for preindictment

delay and the State filed an opposition. R1. 217-33, 238-47.3

At the outset of the hearing on the motion, Harris’s trial counsel declared:

“[T]he test here is actually pretty simple. It’s a two-prong test. It’s whether or not

there’s actual prejudice and whether or not the State acted to gain a tactical

advantage.” Tr. 2/10/17 at 14. Counsel “admit[ted]” that to prevail on the motion,

both prongs of that “conjunctive test” had to be satisfied. Id. Harris’s trial counsel

then alleged that his defense was prejudiced by the delay because certain evidence

was no longer available. R1. 222-26; Tr. 2/10/17 at 14-26.

The State addressed each item of allegedly unavailable evidence in its written

opposition and at the hearing. R1. 241-45; Tr. 2/10/17 at 18, 31-35. The purportedly

unavailable witnesses were either available or the matter about which they would

have testified could be admitted in evidence by alternative means.4 Pet. App. 17a18a; R1. 241-42. The lost body-wire recording was of such poor quality that it likely

would not have been admissible at trial and any statements of significance to the

investigation were documented in the report Detective Hutchinson created at the

2

The trial court recognized that, despite frequent references to a 20-year delay,

the length of delay was in fact closer to 19 years. Tr. 8/30/17 at 6. Stacy’s body had

been on December 23, 1996. Tr. 10/14/2017 at 149-53.

3

References to Volume 1 of the Maryland appeal record are cited as “R1.”

4

In the 19 years since the offenses were committed, only two witnesses had died

and only one had moved outside the country, but it does not appear that Harris sought

to obtain that witness’s testimony by any of the means the trial court suggested. See

Tr. 2/10/17 at 14-18. The other witnesses mentioned in Harris’s motion to dismiss

lived out of state and were available to be served. R1. 228-29, 242.

8

time.

Pet. App. 17a; R1. 242.

Although the raw data for the prostatic acid

phosphatase test had been discarded according to a three-year retention policy, the

State’s discovery obligations did not include turning over the raw data and Dr. Levine

would testify that the test was accurately performed under his supervision. Pet. App.

18a-19a; R1. 241-42. Moreover, Harris did not challenge the results of the test itself

at trial.

Pet. App. 25a-26a.

Finally, the delay did not deprive Harris of the

opportunity to present an alibi. He was on notice early in the investigation that he

was a possible suspect and he would have had the opportunity to memorialize an alibi

then if he had one. Pet. App. 18a. Accordingly, Harris was unable to show that his

defense was actually prejudiced by the delay. Tr. 2/10/17 at 30-35; R1. 241-45.

On the improper-purpose prong, Harris’s trial counsel argued that no new

evidence had been developed since 2000 and that the trial court should infer, based

on the allegedly unavailable evidence alone, that the State purposefully delayed trial

to gain a tactical advantage. Tr. 2/10/17 at 27-30. The trial court pointed out that

the 19-year period included the tenure of different elected State’s Attorneys and

involved various investigators, but Harris’s trial counsel argued that they were all

complicit in a purposeful effort to gain a tactical advantage by delaying the

indictment for 19 years. Id. at 29.

The State argued that the delay was not the result of prosecutorial misconduct.

Id. at 35. Further, in its written response to the motion to dismiss and again at the

hearing, the prosecution stated that new evidence had been developed during the

ongoing investigation, which led to the 2016 indictment. R1. 217-18, 238, 243; Tr.

9

2/10/17 at 35-37. The State pointed out that it did not “matter” what the new evidence

was, because the prosecution was not required to proffer it under the conjunctive test.

R1. 243; Tr. 2/10/17 at 35-37. The prosecutor added, “quite frankly, part of it is trial

strategy. And pointing out certain things” that the defense “may or may not have

picked up on, I don’t think I should be put in a position to do.” Tr. 2/10/17 at 35. The

prosecutor confirmed that the new evidence had been disclosed to the defense, but

that “[w]hether or not they choose to see it as new evidence is up to them,” and argued

that the State should not “be put in the position of having to give strategy at this

point.” Id. at 37. Implicitly agreeing, the trial court did not require the State to

further elaborate its reasons or to proffer the new evidence it had developed.

The trial court decided the motion under the conjunctive test. Pet. App. 42a.

The court observed that the defense and the State had experienced “some prejudice”

from the 19-year delay, Pet. App. 42a, but the court stopped short of finding that the

prejudice proffered by Harris’s trial counsel satisfied the actual-prejudice prong.

Turning to the improper-purpose prong, the court observed that the “police

investigation” had been “ongoing” and that the State has discretion as to when to

bring charges. Pet. App. 42a-43a. The court declined to find that successive State’s

Attorneys colluded to purposefully delay charging Harris. Pet. App. 43a. The court

found that Harris had failed to meet his burden on the second prong and denied the

motion to dismiss for that reason. Pet. App. 43a-44a.

10

Harris renewed the motion to dismiss prior to jury selection, arguing that there

had been “continued prejudice” to the defense because of witness unavailability. Tr.

10/23/17 at 35-36. The court denied the renewed motion. Id. at 36.

Twenty-two witnesses testified at trial and over 100 exhibits were admitted in

evidence. After deliberating for less than three hours, a jury convicted Harris of firstdegree premeditated murder, first-degree felony murder, first-degree rape, and thirddegree sexual offense. Tr. 11/1/17 at 112-13; Tr. 1/3/18 at 8-9. Harris was sentenced

to two concurrent terms of life imprisonment. Tr. 1/3/18 at 40.

2.

The appellate court proceedings

On direct appeal to the Court of Special Appeals of Maryland, Harris argued,

among other things, that the trial court erred by denying the motion to dismiss for

preindictment delay. As he had in the trial court, Harris stated that the conjunctive

test applied: “a defendant ‘must prove (1) actual prejudice to the accused and (2) that

the delay was purposefully made by the State to gain a tactical advantage over the

accused.’” Harris’s Appellant’s Br. 32 (citing Clark v. State, 364 Md. 611, 645 (2001)).

Harris asserted that the trial court had found he satisfied the actual-prejudice prong.

Harris’s Appellant’s Br. 34. On the second prong of the conjunctive test, Harris

contended that Clark left open whether that element could be satisfied by showing

that the State’s delay was reckless rather than purposeful, and he urged the

intermediate appellate court to find that the State’s delay was reckless. Harris’s

Appellant’s Br. 32-37.

11

Applying the conjunctive test, the Court of Special Appeals held that the trial

court did not err in denying the motion. Pet. App. 23a; Harris v. State, 242 Md. App.

655, 675 (2019). Addressing Harris’s recklessness argument, the court held that it

was not preserved: Harris “did not argue this point before the trial court and will not

be allowed to circumvent the judgment of a trial court.” Pet. App. 24a; Harris, 242

Md. App. at 676. The court also noted that a recklessness standard had not been

adopted as part of Maryland jurisprudence. Pet. App. 24a-25a; Harris, 242 Md. App.

at 676-77.

Harris filed a pro se petition for a writ of certiorari in the Court of Appeals of

Maryland, which was denied. Pet. App. 1; Harris v. State, 467 Md. 270 (2020).

REASONS FOR DENYING THE PETITION

I.

HARRIS CONCEDED APPLICATION OF THE CONJUNCTIVE

TEST IN THE COURTS BELOW AND, AS A RESULT, THE

QUESTION PRESENTED IS NOT PRESERVED AND THE

RECORD IS INADEQUATE TO APPLY THE BALANCING TEST

HE ADVOCATES.

A.

Harris’s argument that the balancing test applies is not

preserved.

The question Harris seeks to have this Court resolve was not raised or even

mentioned in the state-court proceedings. “In the ordinary course,” this Court does

“not decide questions neither raised nor resolved below.” Glover v. United States, 532

U.S. 198, 205 (2001). The Court has expressed an especially strong aversion to

addressing such unpreserved questions in a case arising from state courts, due to

12

both “[p]rinciples of comity” and what the Court has identified as other “very practical

reasons.” Webb v. Webb, 451 U.S. 493, 499-500 (1981). Among these “practical

reasons for insisting that federal issues be presented first in the state-court system”

is the need to “afford[ ] the parties the opportunity to develop the record necessary

for adjudicating the issue.” Id. at 500. Because Harris did not attempt to raise the

issue in the state courts, the parties lacked the necessary opportunity to develop the

record in ways pertinent to the question presented, which makes this case

particularly ill-suited for this Court’s review.

Harris never argued in the courts below that the balancing test should be

applied to the preindictment delay. To the contrary, at the motions hearing, Harris’s

trial counsel expressly stated that the “two-prong[ed]” conjunctive test applied. Tr.

2/10/17 at 14 (“It’s whether or not there’s actual prejudice and whether or not the

State acted to gain a tactical advantage.”). Harris “admit[ted]” that he had to satisfy

“both” prongs of the “conjunctive test.” Id.

On appeal, Harris again advanced the conjunctive test, this time arguing that

the second prong could be satisfied by showing that the State’s delay was reckless,

rather than purposeful. Harris’s Appellant’s Br. 32-37. The Court of Special Appeals

of Maryland held that the argument was not preserved because it had not been

presented to the trial court. Pet. App. 24a.5

5

Harris likewise did not argue for the balancing test in his pro se certiorari

petition to the Court of Appeals of Maryland. Harris Md. Cert. Pet. 16.

13

In this Court, Harris, represented by new counsel, makes yet another

argument. Disregarding his arguments below, which all proceeded from the premise

that a conjunctive standard applied, Harris now argues for a balancing test. This

Court does not ordinarily decide issues that petitioners have failed to preserve in

state court, and should not do so here. See, e.g., Sochor v. Florida, 504 U.S. 427, 53334 (1992) (holding that Court lacked jurisdiction to decide claim which state court

had rejected on adequate and independent state ground of lack of preservation).

Harris’s failure to preserve the issue that he asks this Court to review is itself reason

enough to deny his petition.

B.

The record is not adequate to apply the balancing test

because the State was not required to elaborate its

reasons for the delay.

Harris’s failure to preserve the question in the lower courts poses more than a

technical impediment to this Court’s review. It deprives this case of usefulness as a

vehicle to decide the question he presents, because the record is inadequate for this

Court to assess the reasons for the State’s delay in indicting Harris. Further, without

the reasons for the delay stated on the record, Harris cannot claim that he would

prevail under the balancing test he prefers. See Pet. 17-18.

Harris expressly conceded at the motions hearing that, under the conjunctive

test, dismissal is required only if “the State acted to gain a tactical advantage.” Tr.

2/10/2017 at 14. Nevertheless, the State repeatedly averred that its charging decision

was based not only on having “new eyes on the evidence,” but also on the development

14

of “new evidence.” Id. at 36-37; see also R1. 242-43.6 The prosecution also stated that

there was “new evidence” in addition to Harris’s 2016 statement. Tr. 2/10/17 at 37.

But the State resisted having to reveal trial strategy by specifically identifying that

new evidence because doing so was unnecessary, given that whether new evidence

existed was “not the test”; rather, as Harris acknowledged, the standard was whether

the prosecution had purposefully delayed for a tactical purpose. Id. at 35, 37. The

trial court accordingly did not insist that the State proffer exactly what new evidence

had led to the 2016 indictment, but rather denied the motion because there had been

no showing of “a purposeful attempt by the State to gain a tactical advantage.” Id. at

43; Pet. App. 43a.7

The result is that the record in this case is inadequate to assess the strength

of the State’s reasons for waiting to indict Harris until it did. This deficiency in the

record promises to frustrate this Court’s efforts to evaluate whether the asserted due

process claim is better analyzed under a balancing test rather than the conjunctive

6

In a footnote, the Court of Special Appeals observed that the “crux” of the

State’s decision to indict was “fresh eyes” on the evidence. Pet. App. 19a. The State’s

proffer was that it was only part of the reason.

7

Harris is wrong when he asserts, based on a silent record, that there is no valid

explanation for the delay. Pet. 17-18. The trial testimony reveals that police

continued investigating the case, including by re-interviewing Fisher in 2015. Tr.

10/24/17 at 77-78, 85-86. While there may not have been an evidentiary “smoking

gun” that was obvious to the defense, in a complicated circumstantial evidence case,

small shifts in different aspects of the evidence may tip the balance toward a

determination that there is enough evidence to indict, to proceed to trial, and to prove

guilt beyond a reasonable doubt. This Court recognized in Lovasco, 431 U.S. at 791,

that “prosecutors are under no duty to file charges as soon as probable cause exists

but before they are satisfied they will be able to establish the suspect’s guilt beyond

a reasonable doubt.”

15

test, or, indeed, whether the choice of test would make any practical difference in the

outcome of the case. In the absence of a more detailed record of the State’s reasons

for delay, this Court would be unable to weigh those reasons against the prejudice

Harris alleges. Resolution of the question presented based on such an undeveloped

record would be unlikely to yield sufficiently useful guidance of the kind lower courts

and litigants expect from the Court.

II.

APPLICATION OF THE BALANCING TEST WOULD NOT

AFFECT THE OUTCOME IN THIS CASE.

This case is also a poor vehicle because the result does not turn on resolution

of the question presented. Both the conjunctive test and the balancing test require

Harris to demonstrate that his defense was actually prejudiced by the delay, and he

failed to make that showing at the motions hearing. Consequently, Harris’s due

process claim fails regardless of which standard applies.

A.

Under either the conjunctive test or the balancing test, the

defendant

must

demonstrate

actual,

substantial

prejudice.

The conjunctive test requires satisfying two prongs: (1) that “a pre-indictment

delay caused an accused ‘actual, substantial prejudice,’” and that (2) the delay was

“‘the product of a deliberate act by the government designed to gain a tactical

advantage’” or another improper prosecutorial purpose. Harris, 242 Md. App. at 67475 (quoting Clark, 364 Md. at 631); see, e.g., United States v. Crooks, 766 F.2d 7, 11

(1st Cir. 1985) (Breyer, J.) (stating that preindictment delay violates due process

16

“only if the delay significantly prejudices the defendant and the government

‘intentionally delayed’ the indictment ‘to gain an unfair tactical advantage or for

other bad faith motives’”) (citation omitted). Under the balancing test, in contrast,

the defendant must still “prove actual prejudice” at the outset; but, if the defendant

can do so, “then the court must balance the defendant’s prejudice against the

government’s justification for delay,” whatever it might be, to make an open-ended

assessment of “‘whether the government’s action in prosecuting after substantial

delay violates fundamental conceptions of justice or the community’s sense of fair

play and decency.’” Howell v. Barker, 904 F.2d 889, 895 (4th Cir. 1990) (citation

omitted); accord United States v. Moran, 759 F.2d 777, 780-82 (9th Cir. 1985).

Regardless of which test applies, however, the lower courts “have uniformly

held that to obtain a dismissal under the Due Process Clause a defendant must

establish that a pre-indictment delay actually prejudiced his defense.”

Jones v.

Angelone, 94 F.3d 900, 907 (4th Cir. 1996) (emphasis in original). The prejudice “not

only must be actual, rather than presumed or potential, but must also be

‘substantial.’” United States v. Crouch, 84 F.3d 1497, 1515 (5th Cir. 1996) (en banc)

(collecting cases). This is a “heavy burden”: the “proof must be definite and not

speculative, and the defendant must demonstrate how the loss of a witness and/or

evidence is prejudicial to his case.” Moran, 759 F.2d at 782; see, e.g., State v. Mouser,

806 P.2d 330, 337 (Alaska App. 1991) (“By actual prejudice we mean a particularized

showing that the unexcused delay was likely to have a specific and substantial

adverse impact on the outcome of the case.”).

17

The “real possibility of prejudice inherent in any extended delay: that

memories will dim, witnesses become inaccessible, and evidence be lost,” Marion, 404

U.S. at 326, is not by itself sufficient to demonstrate actual prejudice. See State v.

Oldson, 884 N.W.2d 10, 62 (Neb. 2016) (“[A] defendant bears the burden to show

actual prejudice, and not just prejudice due to dimmed memories, inaccessible

witnesses, and lost evidence.”).

Thus, a “mere loss of potential witnesses is insufficient absent a showing that

their testimony ‘would have actually aided the defense.’” Crouch, 84 F.3d at 1515

(citation omitted). The defendant must “identify the witness he would have called;

demonstrate, with specificity, the expected content of that witness’s testimony;

establish to the court’s satisfaction that he has made serious attempts to locate the

witness; and, finally, show that the information the witness would have provided was

not available from other sources.” Jones, 94 F.3d at 908.

Likewise, the death of a witness is not determinative of prejudice.

A

“defendant does not show actual prejudice based on the death of a potential witness

if he has not given an indication of what the witness’s testimony would have been and

whether the substance of the testimony was otherwise available.” United States v.

Rogers, 118 F.3d 466, 475 (6th Cir. 1997).

Even where documentary or physical evidence has been lost or destroyed, the

burden to show actual prejudice remains on the defendant: “the defendant must

provide the ‘expected content’ of the document,” must “indicate how that document

. . . would have aided the defense” and must “show causation by establishing that he

18

could not have obtained the crucial evidence from another source and that the

evidence would have been available if it were not for the government’s delay in filing

the charges.” State v. Hales, 152 P.3d 321, 334 (Utah 2007); see State v. Stokes, 248

P.3d 953, 963 (Ore. 2011) (finding no prejudice where “the destroyed evidence in this

case [including a rape kit, the victim’s clothes, and the recording of a 911 call] may

have supported the state’s case; both parties were forced to proceed without it”).8

The trial court’s conclusion here that both Harris and the State experienced

“some prejudice” due to the passage of time was not tantamount to a finding that

Harris established actual, substantial prejudice. Indeed, as discussed below, Harris

did not do so, and that failure would doom his due process claim regardless of whether

the conjunctive test or the balancing test applies.

B.

The trial court did not find that Harris satisfied the actualprejudice prong.

Harris did not show, and the trial court did not find, that the delay caused

actual, substantial prejudice to Harris’s defense. The trial court focused on the

improper-purpose prong early in the hearing, with the understanding that, as

Harris’s trial counsel conceded, Harris was required to demonstrate both that he was

8

Indeed, given that the impact on trial of lost testimony and missing evidence

is inherently speculative, some courts have concluded that dismissal due to

preindictment delay “prior to trial will rarely (if ever) be appropriate,” and that except

in “all but the clearest and most indisputable cases” a court should not decide such a

motion until after trial when an assessment of trial prejudice can more accurately be

made. Crouch, 84 F.3d at 1523 (emphasis in original); accord State v. Knickerbocker,

880 A.2d 419, 471 (N.H. 2005). Here, Harris did not renew his motion to dismiss

following the trial.

19

actually prejudiced and that the State had an improper purpose for the delay. See

Tr. 2/10/17 at 15 (asking, “Are you saying the State purposely waited until these

people were dead to bring the indictment?”).

During the hearing, the trial court disputed many of Harris’s arguments about

why particular evidence was either unavailable or its absence was prejudicial.9 In its

ruling, the trial court stated that it was applying the conjunctive test. Pet. App. 42a.

It then summarily touched on the actual-prejudice prong, noting only that both

Harris and the State had “suffered some prejudice.” Pet. App. 42a. The court did not

discuss the merits of Harris’s actual-prejudice claim, which would have been the basis

for any factual finding. Instead, the court quickly moved on to the improper-purpose

prong, discussed it at length, and unambiguously found, “I don’t believe they’ve met

the second prong, and so I’m going to deny the motion to dismiss.” Pet. App. 42a-44a.

The trial court’s summary treatment of the actual-prejudice prong and its

comment that Harris as well as the State had, unsurprisingly, “suffered some

prejudice” due to the 19-year delay does not equate to a factual finding of substantial,

actual prejudice. Rather, it is consistent with the court’s earlier observation that both

parties would be affected by witnesses’ faded memories. Tr. 2/10/17 at 22.

9

See, e.g., Tr. 2/10/17 at 17-18 (suggesting that “somebody ought to be making”

a motion for a de bene esse deposition for potential witness in London); id. at 20, 3839 (observing that the loss of the body-wire recording might be “fortuitous” for the

defense and that the recording was unnecessary); id. at 22-23, 40 (pressing Harris’s

trial counsel to proffer with specificity the expected unavailable-witness testimony

and suggesting a stipulation).

20

Harris’s trial counsel likewise did not understand the court to have found

actual prejudice. At the trial court’s invitation, Harris’s trial counsel renewed the

motion to dismiss immediately before jury selection began and again argued that

Harris continued to be prejudiced by the unavailability of witnesses. Tr. 10/23/17 at

35-36. Had counsel concluded that the court already found that his defense was

actually prejudiced, an assertion of further prejudice would have been unnecessary.

The trial court denied the renewed motion, id. at 36, again rejecting Harris’s

argument.

On direct appeal, the State argued that the factual allegations of prejudice

were “weak,” “deficient,” and “disproved” and “were not essentially undisputed,” as

Harris had posited in his brief.10 State’s Br. of Appellee 34, 38-39. In its opinion, the

Court of Special Appeals of Maryland summarized the court’s ruling by stating: “The

trial judge ultimately found that, although Harris may have been prejudiced by the

delay, he had failed to prove that the State purposefully acted to gain a tactical

advantage . . . .” Pet. App. 19a-20a (emphasis added).

The trial court did not make a factual finding that the actual-prejudice prong

was satisfied. Further, as discussed below, the proffer made by the defense was

wholly inadequate to satisfy that standard.

10

On appeal, the State did not challenge the trial court’s finding that Harris

suffered “some prejudice,” State’s Br. of Appellee 39, but the State did challenge the

extent of the prejudice and did not concede that the trial court found the actualprejudice prong was satisfied.

21

C.

Harris’s claim that unavailable evidence satisfied the

actual-prejudice prong is misleading and meritless.

Harris’s petition cites to the same six pieces of allegedly unavailable evidence

that he unsuccessfully proffered to the trial court. Pet. 3-4. None of his claims satisfy

his burden of showing actual, substantial prejudice to the defense.

First, Harris refers to a deceased “alternate suspect[ ]” who “resided at the

campsite.”

Pet. 3.

The defense identified James Sexton as the now-deceased

person,11 but Sexton was not a viable “alternate suspect” because, as the evidence at

trial showed, he was excluded as a contributor to the DNA extracted from the sperm

fraction of the vaginal swab recovered from Stacy, from the hairs on the blanket that

covered her body, and from a cigarette butt found near the body. Tr. 10/26/17 at 6263, 72-73; Tr. 11/1/17 at 91-92. In addition, to the extent that Harris could have

pointed to Sexton as a potential alternate suspect despite the DNA exclusion, the

evidence at trial allowed him to do so: evidence was admitted that Sexton lived in the

woods where the body was found, that he had been a suspect, and that it appeared

that Styrofoam taken from Harris’s campsite was found at Sexton’s campsite. Tr.

10/25/17 at 69-71, 75-76, 151-52, 167-68.

The prejudice alleged by Harris is

nonexistent.

11

Sexton did not live at “the campsite” with Harris, as he suggests. Sexton, along

with Bruce Adcock, lived in an above-ground cement culvert, which was across the

woods and about 100 yards from Stacy’s body and Harris’s campsite. Tr. 10/15/2017

at 68-70, 90-91.

22

Second, Harris states that a “forensic analyst, who had reviewed evidence from

the crime scene and concluded that it did not match petitioner, also died.” Pet. 3.

The forensic analyst to whom Harris refers analyzed the hairs on the blanket covering

Stacy’s body. The hairs were available to the defense for analysis, and the parties

stipulated at trial that the original DNA analysis of the hairs excluded Harris. R1.

241, 244; Tr. 2/10/17 at 34-35, 40; Tr. 11/1/17 at 91-92. The fact that the forensic

analyst was deceased, therefore, did not prejudice Harris’s defense.

Third, Harris states that “[m]ultiple witnesses” who saw Stacy after her

disappearance were “unavailable.” Pet. 3. Only two witnesses were proffered in the

motion to dismiss: Jamie Hurst and Corinne Winters. Hurst, Stacy’s best friend, was

not unavailable, as evidenced by her attendance and testimony at trial.12 Winters, a

performer, had been in the state of Washington for weeks at the time of the hearing

and was to return to London the following week. Tr. 2/10/17 at 16-18. The trial court

encouraged the defense to make a motion for a de bene esse deposition to obtain

Winters’s testimony, but the defense failed to do so. Id. at 17-18. Further, defense

counsel was unable to proffer what Winters’s testimony would be. Id. at 23. At trial,

another witness acknowledged that she may have told police that Stacy called her on

October 10, 1996, days after Stacy’s disappearance, and the defense used that

testimony to support its argument that Stacy was still alive after October 1. Tr.

12

Hurst did not testify that she saw Stacy after October 1, 1996. See Tr. 10/24/17

at 110.

23

11/1/17 at 37-38, 96. Harris was not prejudiced by the fact that a potential witness

resided in London.

Fourth, Harris alleges that the State “decided not to preserve its six-hour

recorded interview of petitioner.” Pet. 3. No such decision was made. The State

proffered that the recording could not be located, and even Harris’s trial counsel,

referring to the recording, stated, “I would assume they’re lost.” Tr. 2/10/17 at 19, 32.

Harris’s brief discussion of the lost body-wire recording includes other

inaccuracies. According to Harris, two different statements—“I imagine there are

other[ ]” lost recordings and “[r]est assured” that the State would have retained

recordings favorable to its case—were made by the prosecution. Pet. 3. Not so. These

speculative statements were made by Harris’s counsel, Pet. App. 12a; Tr. 2/10/2017

at 19-20, who never supported them. Harris’s suggestion that the State was cavalier

about lost recordings is unfounded.

During the six-hour period when Detective Hutchinson was wearing a body

wire, he and Harris spoke at Harris’s mother’s house, they picked up Harris’s

paycheck, they went to a coffee shop, they talked over coffee, and they walked around

the wooded area at length. Although they were together for six hours, only two

significant inculpatory statements were admitted at trial and, as documented in

Detective Hutchinson’s report, both were near the end of the interview after Harris

was confronted with DNA evidence. Tr. 10/25/17 at 129-30, 133-36, 198-99.

Those who heard the body-wire recording in 1998 stated that the quality was

so poor that Harris could hardly be heard and the recording likely would not have

24

been admitted in evidence. Tr. 2/10/17 at 31; Tr. 10/25/17 at 127-28. Even if a clear

recording of Harris’s inculpatory statements existed, it would not have benefitted

Harris’s defense for the jury to hear him concede that he had sex with Stacy and to

say, “if I did it, it was an accident.” Cf. State v. Cote, 118 A.3d 805, 812 (Me. 2015)

(holding that defendant was not prejudiced by delay during which recording of

interview of child sexual-assault victim went missing, in part because there was a

“real prospect that the recording would have worked to Cote’s disadvantage by

allowing the jury to hear an account of the assaults in a child victim’s voice”).

The record also does not support Harris’s suggestion that numerous recorded

witness interviews were lost. As the prosecutor stated, police did not routinely record

witness interviews in the mid-1990s. Tr. 2/10/17 at 38. Harris’s trial counsel alleged

that “several” recordings had been lost. R1. 228. Other than the body-wire recording,

however, the only recording that Harris identified was that of Stacy’s older brother,

Michael Zittle. But Harris’s trial counsel never proffered why Zittle’s interview with

police was important to the defense. Moreover, even though Zittle apparently was

available to both parties, he was never called to testify. Cf. State v. Davis, 201 P.3d

185, 200 (Ore. 2008) (“The loss of the recording does not establish actual prejudice,

because the asserted value of its contents is, again, entirely speculative.”).

Fifth, Harris claims that the State “lost or destroyed” the “underlying data” for

the acid phosphatase test. Pet. 3. The “actual measurements that the spectrophotometer” made were not discoverable material, Tr. 10/7/17 at 34, and were

discarded pursuant to a three-year retention policy.

25

Tr. 10/26/17 at 33-34.

Accordingly, even if Harris had been indicted in 1999 or 2000, the data would not

have been available. In any event, Dr. Levine testified that he reviewed all the raw

analytical data when the analysis was conducted in 1996, made sure that the test

was conducted properly, and certified with his signature that the results were

accurate and scientifically valid. Tr. 10/26/17 at 127-31, 134, 138. Moreover, the

defense did not challenge the result of the test itself; rather, it disputed how the result

was used by Dr. Cina to reach his opinion about the time between intercourse and

death. Pet. App. 25a-26a. The defense presented its own expert witness, Dr. Karl A.

Reich, who opined that an analysis of the amount of prostatic acid phosphatase was

not a valid or reliable method to determine time since intercourse, particularly in a

cadaver. Tr. 10/30/2017 at 17-70. The defense theory, in other words, was not that

the data underlying Dr. Cina’s conclusions was faulty—it was that Dr. Cina’s

conclusions could not legitimately be drawn from the data. The unavailability of the

raw data did not prejudice Harris.

Sixth, Harris argues that he was deprived of a “meaningful ability to put forth

an alibi” because he was “suddenly compelled” to find alibi witnesses years after the

offenses were committed. Pet. 3-4. Harris was on notice that he was a suspect early

in the investigation because he had to provide DNA samples, he was interviewed

multiple times by police, and his camp was near Stacy’s body. On January 15, 1997,

police ascertained that Harris was not working on October 1, 1996, or any day that

week. Tr. 10/25/17 at 103. If Harris had an alibi, in all likelihood he would have

26

memorialized it.13 Cf. State ex rel. Knotts v. Facemire, 678 S.E.2d 847, 857 (W. Va.

2009) (holding that defendant’s proffer “that his ability to establish an alibi with

reference to some of the offenses has been hampered by the fading of memories,

including his own” was too “vague” and “conclusory” to establish actual prejudice);

State v. Vanasse, 593 A.2d 58, 64 (R.I. 1991) (stating that “the prejudice resulting

from faded memories, the increased difficulty in establishing an alibi, and the

unavailability of a witness” is “exactly the type of prejudice that the Marion Court

deemed ‘inherent in any extended delay’”).

As the State remarked at the hearing, only two witnesses died during the 19year delay and, except for the faded memories of witnesses, which both parties

experienced, Harris’s defense was not prejudiced at all. Tr. 2/10/17 at 31. The lack

of actual, substantial prejudice forecloses relief to Harris in this case regardless of

which test is applied. If this Court were to review this issue, it should do so in a case

where the different tests would produce different outcomes.

13

In his allocution at sentencing, Harris stated that his ex-wife could have

testified that he was home with their child on October 1, 1996, but he was waiting for

the State to call her as a witness. Tr. 1/3/18 at 21.

27

III.

THE

SPLIT

OF

AUTHORITY

IS

NOT

DEEP

OR

CONSEQUENTIAL ENOUGH TO REQUIRE RESOLUTION BY

THIS COURT.

Review of this issue, if it is to be conducted, should await a better vehicle for

the additional reason that the split of authority is not as deep as Harris suggests, nor

is it consequential in most cases.

A.

The conflict of authority is not as deep as Harris suggests.

As Harris admits, the balancing test is currently applied in only two federal

circuits and twelve state courts of last resort. Pet. 10, 13 & nn.6-7. But even that

lopsided tally against the balancing test may overstate the balancing test’s tenacity.

Not all of the balancing jurisdictions have squarely rejected the conjunctive test.

Several jurisdictions, after they initially aligned with the balancing test,

adopted the conjunctive test instead upon more mature consideration. The Fifth

Circuit, for instance, initially held post-Lovasco that “[o]nce actual prejudice is

shown, it is necessary to engage ‘in a sensitive balancing of the government’s need for

investigative delay against the prejudice asserted by the defendant.’” United States

v. Townley, 665 F.2d 579, 582 (5th Cir. 1982) (citation omitted). But the Fifth Circuit

reevaluated the standard en banc in Crouch, 84 F.3d at 1514, overruled Townley, and

squarely adopted the conjunctive test.

The Fifth Circuit explained the analytic

inferiority of the balancing test:

The [balancing] test purports to weigh or balance the extent or degree of

the actual prejudice against the extent to which the government’s “good

faith reasons” for the delay deviate from what the court believes to be

28

appropriate. However, what this test seeks to do is to compare the

incomparable. The items to be placed on either side of the balance

(imprecise in themselves) are wholly different from each other and have

no possible common denominator that would allow determination of

which “weighs” the most. Not only is there no scale or conversion table

to tell us whether eighty percent of minimally adequate prosecutorial

and investigative staffing is outweighed by a low-medium amount of

actual prejudice, there are no recognized general standards or principles

to aid us in making that determination and virtually no body of

precedent or historic practice to look to for guidance. Inevitably, then,

a “length of the Chancellor’s foot” sort of resolution will ensue and judges

will necessarily define due process in each such weighing by their own

“‘personal and private notions’ of fairness,” contrary to the admonition

of Lovasco.

Id. at 1512. The Eighth Circuit and the state courts of Iowa and New Mexico have

likewise abandoned the balancing test and adopted the conjunctive test.14

The consensus in favor of the conjunctive test is likely to continue to grow even

without this Court’s intervention. Several jurisdictions that Harris classifies as

having adopted the balancing test may not truly be in conflict with the conjunctive

test.

Some courts, although using language that is characteristic of balancing

(sometimes drawn from later-abrogated decisions in other jurisdictions), have done

so without explicitly assessing the conjunctive test as an alternative standard and

14

See State v. Duran, 581 P.2d 19, 20-21 (N.M. 1978) (applying balancing test),

overruled by Gonzales v. State, 805 P.2d 630, 631-33 & n.3 (N.M. 1991) (adopting

conjunctive test); compare State v. Williams, 264 N.W.2d 779, 782-83 (Iowa 1978)

(applying balancing test), with State v. Brown, 656 N.W.2d 355, 363 (Iowa 2003)

(adopting conjunctive test); compare United States v. Weaver, 565 F.2d 129, 131 (8th

Cir. 1977) (stating that court should “balance[ ] ‘the reasonableness of the delay

against any resultant prejudice to the defendant’”) (citation omitted), with United

States v. Jackson, 446 F.3d 847, 849 (8th Cir. 2006) (stating that, rather than

satisfying a “balancing test,” “defendants claiming a due process violation for preindictment delay must carry the burden of proof on two separate elements”).

29

without confronting a case where the difference between the standards would

matter.15 Others, while nominally endorsing balancing, have cast doubt on whether

anything short of deliberate or reckless delay would actually tip the “balance” in the

defendant’s favor.16

Particularly in the two federal circuits that still recognize it, the balancing test

stands on uncertain ground.

The Fourth Circuit, in Jones, 94 F.3d at 904-05,

acknowledged that every other circuit but the Ninth had adopted the conjunctive test,

but recognized that it could not overrule its prior panel precedent in favor of the

balancing test without an en banc proceeding. It was unnecessary in that case, as

the Jones court observed, to consider en banc review because the defendant in that

case could not show actual prejudice, and thus could not establish a due process

violation even under the balancing test. Id. at 905. The Ninth Circuit, for its part,

continues to profess allegiance to the balancing test–but not once, in 43 years of

reported opinions since Lovasco was decided, has the Ninth Circuit encountered a

case where it found that delay caused actual, substantial prejudice such that

15

See, e.g., Rogers v. State, 511 So.2d 526, 531 (Fla. 1987) (adopting balancing

test from the Fifth Circuit’s since-overruled Townley decision, without assessing

conjunctive test).

16

Compare State v. Cyr, 588 A.2d 753, 756 (Me. 1991) (stating that court must

“inquire as to the reasons for the delay that may be offered by the State and

determine, on balance, whether the prejudice caused by the delay remains

unjustified”), with State v. Hutchins, 433 A.2d 419, 423 n.3 (Me. 1981) (expressing

doubt that anything less than intentional, tactical delay or recklessness might

qualify).

30

conducting any real balancing against a culpable government motive was

necessary.17

17

In two early cases, the Ninth Circuit found that “moderate,” non-“severe”

prejudice was easily outweighed by “proper” delay to “await an evaluation of the

strength of the case,” United States v. Walker, 601 F.2d 1051, 1056-57 (9th Cir. 1979),

and that “doubtful” prejudice did not outweigh “little evidence” of “culpable” delay.

United States v. Jessee, 605 F.2d 430, 431 (9th Cir. 1979) (per curiam). In four other

cases, all in the next decade, the Ninth Circuit found the evidence of prejudice

sufficiently marginal that it chose to rest its decision on the ground that the delay

was the result of entirely legitimate investigation. See United States v. Sherlock, 962

F.2d 1349, 1354-55 (9th Cir. 1989) (where showing of prejudice was “slim,” finding no

due process violation because “ongoing investigation was a legitimate reason for the

delay”); Moran, 759 F.2d at 783 (although having “serious doubts whether Moran has

made any showing of prejudice beyond that which the statute of limitations is

designed to control,” reversing dismissal of indictment because the “record in this

case is absent any evidence of culpability”); United States v. Tornabene, 687 F.2d 312,

317 (9th Cir. 1982) (rejecting preindictment delay claim because government’s

“‘ongoing investigation’ [was] a legitimate reason for delay”); United States v. Farris,

614 F.2d 634, 640 (9th Cir. 1979) (rejecting preindictment delay claim where “despite

lengthy motion proceedings, including an evidentiary hearing, the defense did not

show negligence or intentional misconduct by the prosecution”).

In every other reported decision, including each one in the past thirty years,

the Ninth Circuit has found no prejudice and therefore nothing against which to

balance. See, e.g., United States v. Corona-Verbera, 509 F.3d 1105, 1113 n.2 (9th Cir.

2007) (“[W]e need not address the reasons for the delay because Corona-Verbera has

not demonstrated actual prejudice[.]”); United States v. Barken, 412 F.3d 1131, 1136

(9th Cir. 2005) (same); United States v. DeGeorge, 380 F.3d 1203, 1212 (9th Cir. 2004)

(same); United States v. Gregory, 322 F.3d 1157, 1165 (9th Cir. 2003) (same); United

States v. Mills, 280 F.3d 915, 920 (9th Cir. 2002) (same); United States v. Gilbert, 266

F.3d 1180, 1187 (9th Cir. 2001) (rejecting preindictment delay claim on basis of lack

of prejudice without addressing government’s reasons); United States v. Doe, 149 F.3d

945, 949 (9th Cir. 1998) (finding no “need . . . to address the second prong of the due

process test” absent showing of actual prejudice); United States v. Ross, 123 F.3d

1181, 1186–87 (9th Cir. 1997) (same); United States v. Martinez, 77 F.3d 332, 335

(9th Cir. 1996) (same); United States v. Bracy, 67 F.3d 1421, 1427 (9th Cir. 1995)

(same); United States v. Dudden, 65 F.3d 1461, 1466 (9th Cir. 1995) (same); United

States v. Manning, 56 F.3d 1188, 1194 (9th Cir. 1995) (same); United States v.

Breitkreutz, 8 F.3d 688, 690 (9th Cir. 1993) (same), abrogated on other grounds by

Old Chief v. United States, 519 U.S. 172, 178 (1997); United States v. Hoslett, 998

31

Post-Lovasco precedent from this Court lends further support to the

appropriateness of the conjunctive test. In dicta in Arizona v. Youngblood, 488 U.S.

51, 57 (1988), United States v. Gouveia, 467 U.S. 180 (1984), and United States v.

$8,850, 461 U.S. 555 (1983), the Court has described the standard consistent with the

conjunctive test.18

F.2d 648, 659 (9th Cir. 1993) (rejecting preindictment delay claim solely because

prejudice was “too speculative”); United States v. Butz, 982 F.2d 1378, 1380 (9th Cir.

1993) (finding no “need [to] address the second prong of the pre-indictment delay test”

where defendants “did not establish actual prejudice”); United States v. Huntley, 976

F.2d 1287, 1290-91 (9th Cir. 1992) (reversing dismissal for preindictment delay

where, “[s]ince prejudice was not established, the district court could not properly

reach the second prong of the due process test, balancing the length of the delay

against the reasons for it,” and noting that “[t]he task of establishing the requisite

prejudice for a possible due process violation is ‘so heavy’ that we have found only two

cases since 1975 [both in other circuits] in which any circuit has upheld a due process

claim”). Thus, although it is nominally a balancing jurisdiction, the Ninth Circuit

has done little actual balancing.

18

See Youngblood, 488 U.S. at 57 (emphasizing “the importance for

constitutional purposes of good or bad faith on the part of the Government when the

claim is based on loss of evidence attributable to the government,” and citing Marion

and Lovasco for the proposition that a due process violation is not shown where “‘[n]o

actual prejudice to the conduct of the defense is alleged or proved, and there is no

showing that the Government intentionally delayed to gain some tactical advantage

over appellees or to harass them’”) (quoting Marion, 404 U.S. at 325); Gouveia, 467

U.S. at 192 (“[T]he Fifth Amendment requires the dismissal of an indictment, even if

it is brought within the statute of limitations, if the defendant can prove that the

Government’s delay in bringing the indictment was a deliberate device to gain an

advantage over him and that it caused him actual prejudice in presenting his

defense.”); $8,850, 461 U.S. at 563 (stating that a claim of unconstitutional

preindictment delay “can prevail only upon a showing that the Government delayed

seeking an indictment in a deliberate attempt to gain an unfair tactical advantage

over the defendant or in reckless disregard of its probable prejudicial impact upon

the defendant’s ability to defend against the charges”) (emphasis added); see also

Betterman v. Montana, 136 S. Ct. 1609, 1613 (2016) (citing Lovasco for the proposition

that that the Due Process Clause is a “safeguard against fundamentally unfair

prosecutorial conduct” before an indictment is filed, and that it “may be violated, for

instance, by prosecutorial delay that is ‘tactical’ or ‘reckless’”).

32

Thus, the split of authority is not as entrenched as Harris suggests, and may

continue to resolve itself even without this Court’s intervention.

B.

The conflict of authority is not consequential.

In the meantime, the conflict of authority is tolerable because it rarely affects

the outcome of cases. Of course, it is a somewhat unusual case where there is such

significant preindictment delay that a due process claim is made in the first place.

But even in the universe of cases where such a claim is made, many claims are denied

due to the defendant’s failure to satisfy the stringent actual-prejudice requirement,

which is common to both the conjunctive test and the balancing test.19

Further, in cases where prejudicial delay is found, all jurisdictions agree that

if the prosecution’s reason for the delay is to obtain a tactical advantage, dismissal is

required. Most jurisdictions that apply the conjunctive test and have had occasion to

consider the question also agree that dismissal is appropriate if the reason for the

19

In addition to the cases from the Ninth Circuit cited in note 17, supra, there

are several cases just among those cited in Harris’s petition—from conjunctive and

balancing jurisdictions alike—that were resolved on the basis that the defendant

failed to establish actual prejudice, making it unnecessary to consider the

prosecution’s reasons for delay. See State v. Laird, 447 P.3d 416, 431 (Mont. 2019);

United States v. Irizarry-Colón, 848 F.3d 61, 71 (1st Cir. 2017); Cote, 118 A.3d at 81112; Wyman v. State, 217 P.3d 572, 579 (Nev. 2009); Jackson v. State, 614 S.E.2d 781,

784 (Ga. 2005); Knickerbocker, 880 A.2d at 477; Brown, 656 N.W.2d at 363;

Commonwealth v. Scher, 803 A.2d 1204, 1229 (Pa. 2002); United States v. Cornielle,

171 F.3d 748, 753 (2d Cir. 1999); United States v. Pardue, 134 F.3d 1316, 1319-20

(7th Cir. 1998).

33

delay was prosecutorial recklessness.20

Conversely, even balancing jurisdictions

recognize that the prosecutorial reason for the delay must be somehow “culpable” or

“unjustified” for dismissal to be warranted. See, e.g., Moran, 759 F.2d at 783 (“our

cases clearly require some showing of governmental culpability to prove a deprivation

of due process”); Stokes, 248 P.3d at 960 (stating that “some level of government

culpability” is necessary to make out a claim of unconstitutional pre-indictment

delay, and that legitimate “‘investigative delay’ never violates a defendant’s due

process rights”); State v. Luck, 472 N.E.2d 1097, 1105 (Ohio 1984) (stating that

“length of delay will normally be the key factor in determining whether a delay caused

by negligence or error in judgment is justifiable”).21

20

As Harris acknowledges, Pet. 8-9 & n.3, several jurisdictions that apply the

conjunctive test recognize that the improper-purpose prong can be satisfied not only

by intentional bad-faith delay, but alternatively by “‘reckless disregard of

circumstances, known to the prosecution, suggesting that there existed an

appreciable risk that delay would impair the ability to mount an effective defense.’”

Lovasco, 431 U.S. at 795 n.17 (quoting United States’ concession that recklessness

would suffice); see, e.g., United States v. King, 560 F.2d 122, 129-30 (2d Cir. 1977);

Commonwealth v. Dame, 45 N.E.3d 69, 79 (Mass. 2016); Scher, 803 A.2d at 1221-22,

1229-30; Harrison v. United States, 528 A.2d 1238, 1240 (D.C. 1987). But see United

States v. Rogers, 118 F.3d 466, 476 (6th Cir. 1997) (rejecting recklessness); United

States v. Benson, 846 F.2d 1338, 1343 n.5 (11th Cir. 1988) (same).

21

Some courts have found dismissal appropriate where, in the face of a showing

of actually prejudicial delay, the prosecution fails to proffer a reason for the delay at

all. See, e.g., State v. Whiting, 702 N.E.2d 1199, 1201-02 (Ohio 1998). But that is not

a result of the substantive balancing test, per se, but rather is a result of a burdenshifting procedure that is ordinarily, but not exclusively, applied in balancing

jurisdictions. Some jurisdictions that apply the conjunctive test also shift the burden

to the prosecution to present its reason for the delay if the defense shows actual

prejudice. See, e.g., United States v. Sowa, 34 F.3d 447, 450 (7th Cir. 1994) (en banc)

(holding that “due process is only implicated if the government purposely delayed the

indictment to take advantage, tactically, of the prejudice or otherwise acted in bad

34

Thus, the only cases where the conflict of authority is likely to make a

difference to the outcome are those cases where prosecutorial delay caused

substantial, actual prejudice and was negligent but was not reckless. Little wonder,

then, that in the more than thirty years since Justice White identified the conflict in

authority, see Hoo v. United States, 484 U.S. 1035, 1036 (1988) (White, J., dissenting

from denial of certiorari), none of the petitions for certiorari presenting this issue has

been granted.22 The sheer rarity of cases where there is prejudicial delay that is

negligent but not reckless counsels against the need to grant review.

faith,” but that “the burden shifts to the government to explain its reasons for delay

after the defendant has proven prejudice”); Gonzales v. State, 805 P.2d 630, 633 (N.M.

1991) (adopting conjunctive test but providing for burden shifting: “if defendant

makes a prima facie showing of prejudice and that the state knew or should have

known delay was working a tactical disadvantage on defendant, then the burden of

production shifts to the prosecution to articulate a legitimate reason for the delay”);

State v. Stock, 361 N.W.2d 280, 282-84 (S.D. 1985) (adopting conjunctive test but

placing “burden of establishing justification for preaccusatorial delay” on the

prosecution). Whether such a burden-shifting procedure is appropriate is a separate

issue from the substantive question that Harris presents, which is whether the

conjunctive test or the balancing test applies.

22

See Lively v. United States, No. 17-352, 2017 WL 4004790 (cert. pet. filed Sept.

5, 2017), cert. denied, 138 S. Ct. 366 (2017); Shiner v. United States, No. 11-808, 2011

WL 6934734 (cert. pet. filed Dec. 23, 2011), cert. denied, 565 U.S. 1202 (2012);

McGuire v. Wisconsin, No. 10-536, 2010 WL 4163766 (cert. pet. filed Oct. 18, 2010),

cert. denied, 562 U.S. 1110 (2010); G.R.H. v. Louisiana, No. 09-1440, 2010 WL

2132051 (cert. pet. filed May 25, 2010), cert. denied, 562 U.S. 834 (2010); Robinson v.

Ohio, No. 08-1188, 2009 WL 788663 (cert. pet. filed Mar, 19, 2009), cert. denied, 558

U.S. 815 (2009); Messer v. Ohio, No. 08-237, 2008 WL 3911269 (cert. pet. filed Aug.

21, 2008), cert. denied, 555 U.S. 1045 (2008); Holton v. Georgia, No. 06-537, 2006 WL

2985283 (cert. pet. filed Oct. 12, 2006), cert. denied, 549 U.S. 1078 (2006); Scher v.

Pennsylvania, No. 02-1031, 2003 WL 21698367 (cert. pet. filed Jan. 3, 2003), cert.

denied, 538 U.S. 908 (2003); Gaylor v. West Virginia, No. 00-395, 2000 WL 33999536

(cert. pet. filed Aug, 30, 2000), cert. denied, 531 U.S. 979 (2000); Desai v. Michigan,

No. 99-1471, 2000 WL 34013948 (cert. pet. filed Jan. 31, 2000), cert. denied, 531 U.S.

811 (2000); Mulderig v. United States, No. 97-805, 1997 WL 33549730 (cert. pet. filed

35

CONCLUSION

The petition for a writ of certiorari should be denied.

Dated: December 4, 2020

Respectfully submitted,

BRIAN E. FROSH

Attorney General of Maryland

CARRIE J. WILLIAMS

Counsel of Record

SARAH PAGE PRITZLAFF

JER WELTER

Assistant Attorneys General

Attorneys for the State of Maryland

Nov. 12, 1997), cert. denied, 523 U.S. 1071 (1998); Manges v. United States, No. 97315, 1997 WL 33557786 (cert. pet. filed Aug. 19, 1997), cert. denied, 523 U.S. 1106

(1998); Dunlap v. Arizona, No. 96-1660, 1997 WL 33561890 (cert. pet. filed Apr. 14,

1997), cert. denied, 520 U.S. 1275 (1997); Crouch v. United States, Nos. 96-315 & 96319 (petition not available on Westlaw), cert. denied, 519 U.S. 1076 (1997); Michigan

v. Mallory, No. 94-1940, 1995 WL 17048483 (cert. pet. filed May 26, 1995), cert.

denied, 516 U.S. 912 (1995); Bennett v. Arkansas, No. 94-1315, 1995 WL 17048847

(cert. pet. filed Jan. 31, 1995); cert. denied, 514 U.S. 1018 (1995); Anagnostou v.

United States, No. 92-1245, 1993 WL 13075383 (cert. pet. filed Jan. 22, 1993), cert.

denied, 507 U.S. 1050 (1993); Lauver v. United States, No. 90-1211, 1991 WL

11176621 (cert. pet. filed Jan. 11, 1991), cert. denied, 500 U.S. 941 (1991); Barker v.

Howell, No. 90-336, 1990 WL 10059243 (cert. pet. filed Aug. 22, 1990), cert. denied,

498 U.S. 1016 (1990); Bennett v. Arkansas, No. 90-138, 1990 WL 10058607 (cert. pet.

filed July 19, 1990), cert. denied, 498 U.S. 851 (1990).

36