Petition for Writ of Certiorari — Donald Lee Scott, Petitioner v. Arizona

No. ____________

IN THE

Supreme Court of the United States

___________________

DONALD LEE SCOTT,

Petitioner,

v.

STATE OF ARIZONA,

___________________

Respondent.

On Petition for Writ of Certiorari

To the Arizona Court of Appeals, Division 1

PETITION FOR WRIT OF CERTIORARI

Mikel Steinfeld

Counsel of Record

Aaron Moskowitz

MARICOPA COUNTY PUBLIC

DEFENDER’S OFFICE

620 West Jackson, Suite 4015

Phoenix, Arizona 85003

(602) 506-7711

Mikel.Steinfeld@Maricopa.gov

Counsel for Petitioner

QUESTION PRESENTED

For more than 30 years, lower courts have divided over the proper standard

for evaluating a claim of pre-accusation delay.

There are two primary tests: a strict two-pronged approach and a balancing

test. Both tests require the defendant to prove actual prejudice. The split comes in

the second prong.

Under the strict two-pronged approach, once a defendant shows prejudice,

the defendant must also prove that the prosecutor intentionally delayed bringing

charges for a malicious purpose.

Under the balancing test, once the defendant shows prejudice, the

prosecution explains the reasons for delay. The court then balances the reasons for

delay against the prejudice caused by the delay.

This case squarely presents the issue that has divided courts for three

decades:

What is the proper standard for evaluating pre-accusation delay?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....................................................................................... ii

INTRODUCTION .....................................................................................................1

PETITION FOR WRIT OF CERTIORARI .............................................................. 2

DECISIONS BELOW................................................................................................2

JURISDICTION.........................................................................................................2

RELEVANT CONSTITUTIONAL PROVISIONS .................................................. 3

STATEMENT ............................................................................................................4

1. Donald Scott finds a body in 1988; he is charged with murder three

decades later.....................................................................................................4

2. The trial court summarily denies Scott’s motion to dismiss for preaccusation delay. ..............................................................................................5

3. Because of the delay, Scott is left unable to present exculpatory

statements of a witness who had died.............................................................. 6

4. Without hearing the favorable evidence, a fractured jury convicts

Donald Scott. ...................................................................................................9

5. Arizona’s appellate courts affirm Scott’s conviction. ...................................10

REASONS THIS PETITION SHOULD BE GRANTED .......................................11

1. In cases of pre-accusation delay, courts are split between two tests: a

strict two-pronged approach and a balancing test. ........................................11

2. This is an important and recurring issue........................................................14

3. This case is an ideal vehicle to resolve the split. ...........................................17

4. The balancing test is more consistent with the history of the due process

clause, this Court’s precedent, and fundamental fairness. ............................20

A. Common law—as it existed before independence and before the

passage of the Fourteenth Amendment—supports the balancing test. ....... 20

B. Marion and Lovasco support a balancing test that does not require the

defense to prove the prosecution delayed for malicious purposes. ............ 23

C. The balancing test provides a more equitable distribution of

responsibilities because the prosecution, not the accused, knows the

reasons for delay. ........................................................................................25

CONCLUSION ........................................................................................................27

iii

APPENDIX CONTENTS

Appendix Page

Appendix A State v. Scott, Decision of the Arizona Court of Appeals,

Division 1 ............................................................................................ 1a

Appendix B Arizona Supreme Court ruling denying review .................................. 8a

Appendix C Donald Scott’s Motion to Dismiss .................................................... 10a

Appendix D State’s Response to Motion to Dismiss ............................................. 24a

Appendix E Trial court’s ruling denying Motion to Dismiss................................ 33a

Appendix F Excerpts of Peggy Levee’s testimony ............................................... 35a

Appendix G Excerpts of Dianna Price’s statement ............................................... 60a

Appendix H Excerpts of Prosecutor’s closing argument ....................................... 70a

Appendix I Verdict ............................................................................................... 84a

iv

TABLE OF CITATIONS

Cases

Page

Betterman v. Montana, 578 U.S. 437 (2016) ...........................................................24

Crouch v. United States, 519 U.S. 1076 (1997) ......................................................16

Hoo v. United States, 484 U.S. 1035 (1988)............................................................11

Howell v. Barker, 904 F.2d 889 (4th 1985) .......................................................13, 25

Jackson v. State, 347 So.3d 292 (Fla. 2022) ............................................................15

Marshall v. Rodgers, 569 U.S. 58 (2013) ................................................................19

Reed v. United States, 516 U.S. 820 (1995) ......................................................15, 16

Rogers v. State, 511 So.2d 526 (Fla. 1987) .............................................................15

Shiner v. United States, 565 U.S. 1202 (2012) ........................................................16

State v. Benson, 514 P.3d 491 (Or. 2022) ................................................................15

State v. Broughton, 752 P.2d 483 (Ariz. 1988)....................................................5, 12

State v. Gray, 917 S.W.2d 668 (Tenn. 1996)...........................................................25

State v. S.J.C., 274 A.3d 688 (N.J. Super. 2022) .....................................................14

State v. Scott, 2022 WL 552055 (Ariz. App. 2022, Unpub.) ........................... Passim

State v. Shields, 511 P.3d 931 (Kan. 2022)..............................................................15

State v. Townsend, 897 A.2d 316 (N.J. 2006) .........................................................14

The King v. Marshall and Grantham, 13 East 322, 104 Eng.Rep. 493

(1811) ....................................................................................................................22

The King v. Robinson, 96 Eng.Rep. 313, 1 Blackstone W. 541 (1764) ............20, 22

The Queen v. Hext, 4 Jurist 339 (1840) ...................................................................22

The Queen v. Robins, 1 Cox Crim.Cas. 114 (Somerset Winter Assizes

1844)......................................................................................................................22

United States v. Automated Medical Laboratories, Inc., 770 F.2d 399

(4th Cir. 1985) ...................................................................................................5, 12

United States v. Brown, 959 F.2d 63 (6th Cir. 1992) ..............................................13

United States v. Cornielle, 171 F.3d 748 (2d Cir. 1999) .........................................13

United States v. Crouch, 84 F.3d 1497 (5th Cir. 1996) ...............................12, 13, 15

United States v. Engstrom, 965 F.2d 836 (10th 1992).............................................13

United States v. Hagler, 700 F.3d 1091 (7th Cir. 2012)....................................12, 13

United States v. Irizarry-Colon, 848 F.3d 61 (1st Cir. 2017) ..................................13

United States v. Ismaili, 828 F.2d 153 (3d Cir. 1987) .......................................12, 13

United States v. Jackson, 446 F.3d 847 (8th Cir. 2006) ..........................................13

United States v. Lovasco, 431 U.S. 783 (1977) ............................................... Passim

United States v. Marion, 404 U.S. 307 (1971) ................................................ Passim

United States v. Mills, 925 F.2d 455 (D.C. Cir. 1991) ............................................13

United States v. Moran, 759 F.2d 777 (9th Cir. 1985) ............................................13

v

TABLE OF CITATIONS

Cases (Cont’d)

Page

United States v. Reed, 41 M.J. 449 (Ct. App. Armed Forces 1995) ........................13

United States v. Valentine, 783 F.2d 1413 (9th Cir. 1986)........................................ 5

United States v. Wetherald, 636 F.3d 1315 (11th Cir. 2011) ..................................13

Ventura v. People, 64 V.I. 589 (V.I. 2016)........................................................14, 25

White v. Woodall, 572 U.S. 415 (2014) ...................................................................19

Wright v. Van Patten, 552 U.S. 120 (2008) .............................................................19

Constitutional Provisions

U.S. Const. Amend. 5 ................................................................................................3

U.S. Const. Amend. 14 ..............................................................................................3

Statutes

28 U.S.C. § 1257(a) ...................................................................................................2

28 U.S.C. § 2254(d)(1).............................................................................................19

Ariz. Rev. Stat. § 13-107(A) ....................................................................................19

Rules

Ariz. Supreme Ct. Rule 111(c)(1)(C) ........................................................................ 2

Other Authorities

Michael Cleary, Pre-Indictment Delay: Establishing a Fairer

Approach Based on United States v. Marion and United States v.

Lovasco, 78 Temp. L. Rev. 1049 (2005) ..................................................13, 17, 26

Crouch v. United States, Br. Opp., 1996 WL 33439685 .........................................16

Eli DuBosar, Pre-Accusation Delay: An Issue Ripe for Adjudication

by the United States Supreme Court, 40 Fla. St. U. L. Rev. 659

(2013) ....................................................................................................................17

vi

TABLE OF CITATIONS

Other Authorities (Cont’d)

Page

Phyllis Goldfarb, When Judges Abandon Analogy: The Problem of

Delay in Commencing Criminal Prosecutions, 31 Wm. & Mary L.

Rev. 607 (1990) ............................................................................................. Passim

Jamal Greene, Fourteenth Amendment Originalism, 71 Md. L. Rev.

978 (2012) .............................................................................................................21

Harris v. Maryland, 20-101, Docket and Pet. Cert. ..........................................16, 17

Danielle Rang, The Waiting Game: How Preindictment Delay

Threatens Due Process, 66 S.D. L. Rev. 143 (2021) .........................13, 14, 17, 26

Reed v. United States, Br. Opp., 1995 WL 17108172 .............................................16

Woodard v. United States, 20-6387, Docket and Pet. Cert....................16, 17, 19, 20

vii

INTRODUCTION

For 30 years and counting, the Nation’s courts have been deeply divided

regarding the proper test for resolving claims of pre-accusation delay.

There are two primary approaches: a strict two-pronged approach and a

balancing test. Under both approaches, the defendant must show actual prejudice.

The rub is in what comes next.

In jurisdictions that have adopted the strict two-pronged approach, once the

defendant shows actual prejudice, the defendant must also prove that the

prosecution intentionally delayed bringing charges for a malicious purpose.

Under the balancing test, however, once the defendant establishes prejudice,

the burden shifts to the prosecutor to explain why charges were delayed. The court

then balances the prejudice and reasons for delay.

This Court should grant certiorari and adopt the balancing test. The

balancing test accords with the common law, expresses this Court’s precedents,

and fairly allocates the burden to explain the reasons for delay to the party that has

access to that information—the prosecution.

1

PETITION FOR WRIT OF CERTIORARI

Donald Scott petitions this Court for a writ of certiorari to review the

judgment of the Arizona Court of Appeals affirming the conviction in his case.

DECISIONS BELOW

The decision of the Arizona Court of Appeals is available at State v. Scott,

2022 WL 552055 (Ariz. App. 2022, Unpub.). 1 Although the decision is unreported,

Arizona allows parties to cite to unreported decisions in several circumstances.

Ariz. Supreme Ct. Rule 111(c)(1)(C).

JURISDICTION

This Petition is timely, and this Court has jurisdiction under 28 U.S.C. §

1257(a). The Arizona Court of Appeals issued its decision on February 24, 2022.

Scott timely filed a Petition for Review with the Arizona Supreme Court. The

Arizona Supreme Court denied that petition on August 26, 2022. Appendix 9a.

The decision is also available through the Arizona Court of Appeals, Division 1

website: https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2022/1%20CACR%2021-0024%20Scott.pdf.

1

2

RELEVANT CONSTITUTIONAL PROVISIONS

The Fifth Amendment provides, in pertinent part: “No person shall be …

deprived of life, liberty, or property, without due process of law ….” U.S. Const.

Amend. 5.

The Fourteenth Amendment provides, in pertinent part: “... nor shall any

State deprive any person of life, liberty, or property without due process ….” U.S.

Const. Amend. 14.

3

STATEMENT

Donald Scott was charged with murder more than 30 years after he found the

victim’s body in the desert. During that interim, at least one favorable witness died.

The delay left Scott unable to present that witness’s statements. Scott thus asked

the trial court to dismiss the case. But because Scott could not prove the prosecutor

intentionally delayed charges for a malicious purpose, the trial court denied Scott’s

motion. A fractured jury ultimately convicted Scott of murder.

1. Donald Scott finds a body in 1988; he is charged with murder three

decades later.

In 1988, Donald Scott and his wife found a murdered body while out in the

desert. State v. Scott, 2022 WL 552055, ¶¶ 2-3 (Ariz. App. 2022, Unpub.) (attached

at Appendix 1a). He called the police and took them to the body. Id. at ¶¶ 3-4.

After a brief investigation, police released the two of them. Id. at ¶ 4.

Thirty years later, in 2018, prosecutors charged Scott with the murder. Id. at

¶¶ 6-7. The police had originally found semen in the victim’s vagina and on her

jeans. Id. at ¶ 6. When DNA technology developed, officers created a DNA profile,

but the profile didn’t match any suspects, and the police entered the DNA profile in

a database and waited. Id. The police eventually received a passive hit that

matched Scott. Id.

4

2. The trial court summarily denies Scott’s motion to dismiss for preaccusation delay.

Before trial, Scott moved to dismiss the case for pre-accusation delay.

Appendix 10a.

In his motion, Scott acknowledged that Arizona uses a strict two-pronged

approach for deciding claims of pre-accusation delay. Appendix 13a. That

approach requires the defendant to show 1) the defendant suffered actual prejudice

from the delay and 2) the prosecution intentionally delayed charges to gain a

tactical advantage or harass the defendant. See State v. Broughton, 752 P.2d 483,

486 (Ariz. 1988). This test is used in most jurisdictions.

But Scott asked the court to apply a different test—a balancing test.

Appendix 20a (citing United States v. Valentine, 783 F.2d 1413, 1416 (9th Cir.

1986); United States v. Automated Medical Laboratories, Inc., 770 F.2d 399, 40304 (4th Cir. 1985)). Under the balancing test, a defendant still needs to show the

delay caused actual prejudice. After doing so, the burden shifts, and the prosecutor

is required to explain the reason for delay. The court then balances the prejudice

against the reason for delay. Scott argued the balancing test was more consistent

with the federal constitution and this Court’s cases. Appendix 20a-22a.

Scott also explained why he’d been prejudiced: vital witnesses had died

during the 3-decade delay. Appendix 12a. One such witness was Dianna Price, the

victim’s ex-girlfriend. Id.

5

One day after the prosecutor filed a response—and without holding an

evidentiary hearing, hearing oral argument, or waiting for a reply—the trial court

summarily denied the motion. Appendix 34a.

3. Because of the delay, Scott is left unable to present exculpatory

statements of witnesses who had died.

The delay left Scott unable to present exculpatory evidence—statements

made by the victim’s ex-girlfriend Dianna Price that undercut several of the

prosecutor’s arguments. See Scott, 2022 WL 552055, ¶¶ 9-13.

At trial, the state’s theory was that Scott kidnapped and sexually assaulted

the victim before murdering her. Scott’s defense was that he had consensual sex

with her a day or two before, but that someone else murdered her.

In closing argument, the prosecutor Scott’s defense by emphasizing three

points: dirty jeans, elbow injuries, and sexual orientation. First, the victim was

wearing jeans that had semen on them. The victim’s sister—Peggy Levee—

testified that the victim was concerned with her hygiene and would not have worn

soiled pants. Appendix 46a-47a. The prosecutor claimed this proved the sexual

encounter had occurred on the same day as the murder. Appendix 76a, 80a.

Second, the victim had injuries the prosecutor argued were consistent with assault,

particularly cuts on her elbows. Appendix 73a. And third, the victim self-identified

as a lesbian. Levee also testified the victim was a lesbian and would not have slept

6

with men. Appendix 55a. The prosecutor used this to suggest that any sexual

encounter with a man, like Scott, would have been nonconsensual. Appendix 78a.

These arguments were persuasive, however, because the delay left Scott

unable to present statements made by Dianna Price. Days after the murder, Dianna

Price told the primary investigator—Detective Riley—she believed the victim’s

brother, William McKenna, murdered the victim. Appendix 63a. And Price’s

statements called into question each of the prosecutor’s arguments.

Price told police that the victim had worn the same pants—the pants semen

was found on—two days before the murder:

Appendix 69a. Although Levee was correct that the victim was hygiene conscious,

Price explained the victim didn’t own many clothes. And Price told officers the

victim was wearing the same pants—pants semen was eventually found on—two

7

days prior. This thus undercut the prosecutor’s assertion that the presence of semen

proved the sexual encounter occurred on the day of the murder.

Price told the police that the victim’s brother—William McKenna—had

caused the injuries to the victim’s arms:

Appendix 63a. This would have repudiated the prosecutor’s claim that the injuries

to the victim’s elbows proved a sexual assault.

And Price explained that, although the victim identified as a lesbian, the

victim engaged in consensual sex acts with men:

8

Appendix 66a. This statement would have contradicted Levee’s claim that the

victim would not have willingly slept with men. And it would have countered the

prosecutor’s subsequent assertion that any sexual contact with Scott was

nonconsensual.

4. Without hearing the favorable evidence, a fractured jury convicts

Donald Scott.

The jury that decided Donald Scott’s fate was left without complete

information. The jury never learned that the victim wore the same pants—pants

9

that had semen on them—two days prior. The jury never learned that the victim’s

brother, William McKenna, had caused the very injuries that the prosecutor

attributed to Scott. And the jury never learned that, while she identified as a

lesbian, the victim willingly had sexual contact with men.

In a fractured verdict, the jury convicted. Appendix 85a. The state had

presented two theories of guilt: premeditated murder and felony murder. One juror

rejected the premeditated-murder theory; two jurors rejected the felony-murder

theory. Id.

5. Arizona’s appellate courts affirm Scott’s conviction.

On appeal, Scott argued the trial court erred when it denied the motion to

dismiss for pre-accusation delay. Applying the strict two-pronged approach, the

lower court rejected Scott’s argument. Scott, 2022 WL 552055, ¶¶ 15-20.

Scott filed a Petition for Review and the Arizona Supreme Court declined

review. Appendix 9a.

This Petition for Writ of Certiorari follows.

10

REASONS FOR GRANTING THE WRIT

This Court should grant the writ of certiorari to resolve the ongoing split

regarding how to analyze claims of excessive pre-accusation delay. Since this

Court decided the two key cases regarding pre-accusation delay—United States v.

Marion, 404 U.S. 307 (1971), and United States v. Lovasco, 431 U.S. 783

(1977)—courts across the county have extended inconsistent protections to guard

against pre-accusation delay. Because the split is entrenched, the issue has recurred

time and again, and this case is an ideal vehicle to resolve the divide, this Court

should grant certiorari.

1. In cases of pre-accusation delay, courts are split between two tests: a

strict two-pronged approach and a balancing test.

More than 30 years ago, Justice Byron White dissented from the denial of

certiorari on the very issue presented here—the proper “test for determining if

prosecutorial preindictment delay amounts to a violation of the Due Process Clause

of the Fifth Amendment.” Hoo v. United States, 484 U.S. 1035, 1035 (1988)

(White, J., dissenting from denial of certiorari).

While some jurisdictions have minor deviations, there are two primary

approaches: the strict two-pronged approach and the balancing test.

Under the strict two-pronged approach, the defendant must show 1) that the

defendant was actually prejudiced by the delay; and 2) that the prosecution

11

intentionally delayed filing charges for an improper reason, such as gaining a

tactical advantage or harassing the defendant. See, e.g., United States v. Ismaili,

828 F.2d 153, 167 (3d Cir. 1987); United States v. Crouch, 84 F.3d 1497, 1508

(5th Cir. 1996).

Arizona has aligned itself with the strict two-pronged approach. In State v.

Broughton, the Arizona Supreme Court ruled that the defendant must prove “that

the prosecution intentionally delayed proceedings to gain a tactical advantage over

the defendant or to harass him, and that the defendant has actually been prejudiced

by the delay.” State v. Broughton, 752 P.2d 483, 486 (Ariz. 1988). The Arizona

Court of Appeals applied Broughton here. Scott, 2022 WL 552055, ¶ 16.

Under the balancing test, the defendant still must show actual prejudice, but

the burden then shifts to the prosecution to explain the reason for the delay. See,

e.g., United States v. Automated Medical Laboratories, Inc., 770 F.2d 399, 403-04

(4th Cir. 1985); United States v. Hagler, 700 F.3d 1091, 1099 (7th Cir. 2012). The

evaluating court then balances the reasons for delay against the prejudice.

Automated Medical Laboratories, 770 F.2d at 403-04; Hagler, 700 F.3d at 1099.

Our Circuit Courts are deeply divided on the proper test to apply. Nine

Circuits—the First, Second, Third, Fifth, Sixth, Eighth, Tenth, Eleventh, and D.C.

12

Circuits—apply the strict two-pronged approach. 2 Three Circuits—the Fourth,

Seventh, and Ninth Circuits—apply the balancing test. 3

Our states are similarly divided. A survey published in 2021 concluded that

thirty states had adopted a version of the strict two-pronged approach. Danielle

Rang, The Waiting Game: How Preindictment Delay Threatens Due Process, 66

S.D. L. Rev. 143, 154-55 (2021). Thirteen states, on the other hand, had adopted

some form of the balancing test. Id. at 155.

Additionally, jurists and commentators alike have widely recognized the

continuing split:

● Judge Mwiss: “In fact, the circuits are split on this issue, with some circuits

expressly rejecting [the majority] view of the teachings of Marion and

Lovasco.” United States v. Reed, 41 M.J. 449, 458 (Ct. App. Armed Forces

1995) (Mwiss, J., dissenting).

● Michael Cleary: “The Court’s lack of clear guidance in both Marion and

Lovasco regarding pre-indictment delay led to a split among the circuit

courts of appeals that continues today.” Michael Cleary, Pre-Indictment

Delay: Establishing a Fairer Approach Based on United States v. Marion

and United States v. Lovasco, 78 Temp. L. Rev. 1049, 1051 (2005).

United States v. Irizarry-Colon, 848 F.3d 61, 70 (1st Cir. 2017); United States v.

Cornielle, 171 F.3d 748, 752 (2d Cir. 1999); United States v. Ismaili, 828 F.2d 153

(3d Cir. 1987); United States v. Crouch, 84 F.3d 1497 (5th 1996); United States v.

Brown, 959 F.2d 63, 66 (6th Cir. 1992); United States v. Jackson, 446 F.3d 847

(8th Cir. 2006); United States v. Engstrom, 965 F.2d 836 (10th 1992); United

States v. Wetherald, 636 F.3d 1315, 1324 (11th Cir. 2011); United States v. Mills,

925 F.2d 455, 464 (D.C. Cir. 1991), vacated and replaced in part on other

grounds, 964 F.2d 1186 (D.C. Cir. 1992).

3

Howell v. Barker, 904 F.2d 889 (4th 1985); United States v. Hagler, 700 F.3d

1091 (7th 2012); United States v. Moran, 759 F.2d 777, 780-81 (9th Cir. 1985).

2

13

● Chief Justice Hodge: “There is a split among jurisdictions as to what the

second prong of the pre-indictment delay test should be, which has not yet

been resolved by the United States Supreme Court.” Ventura v. People, 64

V.I. 589, 609 (V.I. 2016).

● Danielle Rang: “There is a healthy split among the states on the issue of

preindictment delay, with over half of the states adopting the strict twoprong test and the other half either rejecting the strict two-prong test or

lacking a clear position on the issue.” Rang, The Waiting Game, 66 S.D. L.

Rev. at 154.

This Court should grant certiorari to resolve this widely acknowledged and

deeply entrenched split.

2. This is an important and recurring issue.

There are no signs of this divide closing. Four decisions issued in 2022

prove this point.

First, the New Jersey Superior Court, Appellate Division, adopted the

balancing test in State v. S.J.C., 274 A.3d 688, 697 (N.J. Super. 2022). This was a

fundamental change because the New Jersey Supreme Court had previously

embraced the strict two-pronged approach in State v. Townsend, 897 A.2d 316, 325

(N.J. 2006). But in S.J.C., the court acknowledged that the defendant had never

contested the issue in Townsend. S.J.C., 274 A.3d at 696. The court thus adopted

the balancing test, but ultimately found no prejudice. Id. at 698-99.

Second, the Kansas Supreme Court reaffirmed “that a defendant must show

that the State intentionally delayed charging the defendant to gain a tactical

14

advantage or advance some other improper purpose.” State v. Shields, 511 P.3d

931, 946 (Kan. 2022). This came about in response to the defendant’s request that

the court adopt the balancing test. Id.

Third, the Florida Supreme Court embraced the strict two-pronged approach

in Jackson v. State, 347 So.3d 292, 306 (Fla. 2022). This was a swap in the

opposite direction of New Jersey. Florida had previously used the balancing test.

Rogers v. State, 511 So.2d 526, 531 (Fla. 1987).

And fourth, the Oregon Supreme Court reaffirmed its commitment to the

balancing test in State v. Benson, 514 P.3d 491, 496 (Or. 2022). Notably, the

Oregon Supreme Court reaffirmed its use of the balancing test even after

discussing Crouch—the primary case that set forth the strict two-pronged approach

for the Fifth Circuit. See id. (discussing Crouch, 84 F.3d at 1523).

Percolation has not provided an answer. This is not a situation where just a

couple jurisdictions are adhering to vestiges of the past. Rather, this issue is

recurring in courts across the country, and the divide is deepening.

A significant number of petitions have also asked this Court to resolve the

issue. For example, twice in the 1990s, the Federal Government conceded a split

but argued there were vehicle problems with the particular cases. The Government

first took this approach in Reed v. United States, 516 U.S. 820 (1995). In its Brief

in Opposition, the Government conceded the split existed. Reed v. United States,

15

Br. Opp., 1995 WL 17108172, pg. 7. The Government, however, argued the case

was a poor vehicle because the defendant’s claimed prejudice was too general, and

the delay was minimal. Id. This Court denied certiorari. Reed, 516 U.S. 820

(1995). The Government repeated this tack in Crouch v. United States, 519 U.S.

1076 (1997), the Fifth Circuit case that has now become one of the leading

authorities supporting the strict two-pronged approach. In its Brief in Opposition,

the Government again conceded the split existed, but again argued the case was a

poor vehicle in part because the offered testimony would not have affected the

outcome. Crouch v. United States, Br. Opp., 1996 WL 33439685, pg. 9. This Court

denied certiorari. Crouch v. United States, 519 U.S. 1076 (1997). More recently,

this Court denied certiorari on the issue in Shiner v. United States, 565 U.S. 1202

(2012).

And two cases raised the issue during this Court’s 2020 Term:

● Harris v. Maryland, 20-101. Petitioner Harris raised the issue in the

Certiorari Petition. See Harris v. Md. Pet. Cert. 20-101, (i). After an initial

waiver, this Court asked Maryland to respond. Harris v. Maryland, Docket

20-101, Response Requested on September 3, 2020. This Court then relisted

the matter 12 times before it eventually denied certiorari on May 17, 2021.

See Harris v. Maryland, Docket 20-101.

● Woodard v. United States, 20-6387. Petitioner Woodard raised the issue in

the Certiorari Petition. See Woodard v. United States Pet. Cert. 20-6387, ii.

The Government indicated its intent to respond by requesting an extension.

After the response, an amicus, and a reply were filed, this Court relisted the

matter 6 times before it denied certiorari on May 17, 2021. See Woodard v.

United States, Docket 20-6387.

16

Commenters have also called on this Court to address the split for more than

30 years. See Phyllis Goldfarb, When Judges Abandon Analogy: The Problem of

Delay in Commencing Criminal Prosecutions, 31 Wm. & Mary L. Rev. 607, 62228 (1990); Michael Cleary, Pre-Indictment Delay: Establishing a Fairer Approach

Based on United States v. Marion and United States v. Lovasco, 78 Temple L.

Rev. 1049, 1051-53 (2005); Eli DuBosar, Pre-Accusation Delay: An Issue Ripe for

Adjudication by the United States Supreme Court, 40 Fla. St. U. L. Rev. 659

(2013); Danielle Rang, The Waiting Game, 66 S.D.L. Rev. 143, 161 (2021).

The proper standard for analyzing claims of pre-accusation delay is an issue

that recurs regularly. And without this Court’s guidance, courts have reached

inconsistent answers regarding what the Constitution requires.

3. This case is an ideal vehicle to resolve the split.

This case is well-suited to help this Court resolve the split for five reasons.

First, Scott was charged more than 30 years after he found the victim’s body.

This significantly exceeds the 20-year delay presented to this Court in Harris v.

Maryland, Docket 20-101, and it dwarfs the 3-year delay in Woodard v. United

States, Docket 20-6387. The length of delay alone places Scott’s case in a unique

position from other cases that have sought review.

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Second, Scott preserved the issue at every court. In his motion to dismiss,

Scott argued the strict two-pronged approach was unfair—particularly its

requirement that Scott prove the prosecutor intentionally delayed the case for an

improper purpose. Appendix 20a-22a. He cited cases from the Ninth and Fourth

Circuits applying the balancing test, pointed out that the strict two-pronged

approach imposed an unfair burden on defendants to prove the prosecutor’s intent,

and urged the trial court to employ the “fairer approach used by the minority of

circuits ….” Id. He advanced the same arguments before the Arizona Court of

Appeals and the Arizona Supreme Court.

Third, the trial court’s decision hinged on Scott’s failure to prove the

prosecutor intentionally delayed for an improper purpose. While Scott alleged

significant prejudice and argued for the balancing test, he conceded Arizona

applied the strict two-pronged approach. Appendix 13a. In its response, the

prosecutor emphasized the prong regarding intentional delay for an improper

purpose. Appendix 28a-29a. Without a hearing, oral argument, or opportunity to

file a reply, the trial court summarily denied Scott’s motion. Appendix 34a.

Fourth, this case is still on direct review, which is the necessary procedural

posture to resolve this split. Under the Antiterrorism and Effective Death Penalty

Act, habeas review is only proper if a state court issued a decision “that was

contrary to, or involved an unreasonable application of, clearly established Federal

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law, as determined by” this Court. 28 U.S.C. § 2254(d)(1). This Court has yet to

clearly establish the Federal law that should govern the claim—hence the deeply

entrenched split among state and federal courts. Any habeas review would thus be

futile; the appropriate time to consider a question of this sort “would be on direct

review, not in a habeas case governed by § 2254(d)(1).” See White v. Woodall, 572

U.S. 415, 427 (2014); accord Marshall v. Rodgers, 569 U.S. 58, 64 (2013); Wright

v. Van Patten, 552 U.S. 120, 128 (2008) (Stevens, J., concurring). This case is on

direct review—the ideal time to resolve this issue.

And fifth, the Due Process Clause provides Scott’s sole protection against

pre-accusation delay. Arizona has no statute of limitations for murder cases. Ariz.

Rev. Stat. § 13-107(A) (“A prosecution for any homicide … may be commenced at

any time.”). This Court has recognized that the “primary guarantee” against overly

stale prosecutions is the statute of limitations. Lovasco, 431 U.S. at 789; Marion,

404 U.S. at 322. The Due Process Clause plays a “limited role” in protecting

against improper delay. Lovasco, 431 U.S. at 789. But because there is no statuteof-limitations protection for Scott’s case, the Due Process Clause—however

limited—provides the only guarantee protecting Scott against oppressive delay.

This again sets Scott’s case apart from cases like Woodard v. United States,

Docket 20-6387. In Woodard, the defendant suffered a 3-year delay, but the

government had filed charges well within the 5-year statute of limitations. Because

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the statute of limitations set the primary protection, Woodard wouldn’t have been a

good vehicle. But Scott’s case—which has no statutory protection—is ideal.

This Court should grant certiorari because this case presents the opportune

vehicle to finally resolve an issue that has divided courts for three decades.

4. The balancing test is more consistent with the history of the Due Process

Clause, this Court’s precedent, and fundamental fairness.

In deciding whether a defendant should be required to prove the prosecution

intentionally delayed for improper purposes, this Court should look to our

common-law history, this Court’s precedent, and the fundamental fairness of such

a test.

A. Common law—as it existed before independence and before the

passage of the Fourteenth Amendment—supports the balancing

test.

Foremost, the common law supports a balancing test. In The King v.

Robinson, decided more than a decade before our Declaration of Independence was

signed, Lord Mansfield set forth four factors that amount to a balancing test. The

King v. Robinson, 96 Eng.Rep. 313, 1 Blackstone W. 541 (1764). Two factors—

possible disfavor and the consequences of the information—are consistent with the

examination of prejudice. Id. at 313. The other two factors—the “time of

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application” and “suspicious state of the case”—are consistent with the

examination for the reasons for delay. Id.

This balancing did not demand that the defendant prove the prosecutor’s

reasons for the delay. See id. Rather, Lord Mansfield explained, “if delayed, the

delay must be reasonably accounted for.” Id. In application, Lord Mansfield noted,

“the delay is not accounted for.” Id. at 314. Lord Mansfield expected the party

bringing the charges to account for the delay, and their failure to do so is what

Lord Mansfield found notable. See id.

The common law never foisted a burden upon a defendant to prove the

prosecution delayed in bringing charges for malicious purposes. Our founders

would have thus understood the Due Process guarantee of the Fifth Amendment to

require a balancing of the prejudice and reasons for delay—reasons that would be

provided by the prosecution.

Because the Fourteenth Amendment extended the Due Process guarantee to

the states, we can also consider how the framers of the Fourteenth Amendment

would have understood the protection. See Jamal Greene, Fourteenth Amendment

Originalism, 71 Md. L. Rev. 978, 979-80 (2012). Common-law cases that

addressed pre-accusation delay in the period between the approval of our

Constitution and the adoption of the Fourteenth Amendment were consistent with

the balancing test. See Goldfarb, When Judges Abandon Analogy, 31 Wm. & Mary

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L. Rev. at 635 (discussing The King v. Marshall and Grantham, 13 East 322, 104

Eng.Rep. 493 (1811); The Queen v. Hext, 4 Jurist 339 (1840); and The Queen v.

Robins, 1 Cox Crim.Cas. 114 (Somerset Winter Assizes 1844)).

Justice William O. Douglas recognized this common-law history in his

concurrence in Marion. He expressly quoted Lord Mansfield’s decision in

Robinson. See Marion, 404 U.S. at 328 (Douglas, J., concurring). He further

discussed The Queen v. Hext, and quoted The Queen v. Robins, which emphasized

the unfairness of putting a person on trial after significant delay: “It is monstrous to

put a man on his trial after such a lapse of time. How can he account for his

conduct so far back? If you accuse a man of a crime the next day, he may be

enabled to bring forward his servants and family to say where he was and what he

was about at the time; but if the charge be not preferred for a year or more, how

can he clear himself? No man’s life would be safe if such a prosecution were

permitted. It would be very unjust to put him on his trial.” Id. at 328-29 (Douglas,

J., concurring) (quoting Robins, 1 Cox Crim.Cas. 114).

While Justice Douglas cited this history to explain why he would have ruled

that the Sixth Amendment’s Speedy Trial Clause protected against pre-accusation

delay, the history conversely explains how our framers would have understood the

protection extended by the Due Process Clause.

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Thus, the Due Process guarantee extended to the states in the Fourteenth

Amendment would have been understood to protect a balancing test and require

the prosecution—not the defense—to explain why the prosecutor delayed the

charges.

B. Marion and Lovasco support a balancing test that does not require

the defense to prove the prosecution delayed for malicious

purposes.

Beyond our common-law history, the balancing test is also more in line with

the language and approach of Marion and Lovasco.

In Marion, this Court ruled that pre-accusation delays were protected by the

Due Process Clause of the Fifth Amendment, not the Speedy Trial provision of the

Sixth Amendment. See Marion, 404 U.S. at 325. In reaching this decision, this

Court relied upon the Government’s concession that intentional delays to gain a

tactical advantage or harass the defendant would violate Due Process. Id. at 324.

With this concession, this Court agreed that the Due Process Clause was the

constitutional provision at play, not the Speedy Trial Clause. Id. at 324-25.

But courts that adopted the strict two-pronged approach have glossed over

the fact that this intentional delay for a nefarious purpose was not a demand; it was

recognition of a concession. Goldfarb, When Judges Abandon Analogy, 31 Wm. &

Mary L. Rev. at 622-23. The result has been that several courts “have fixed the

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ceiling and the floor in identical locations, requiring both actual prejudice and

intentional tactical delay as the minimum showing for a due process violation.” Id.

at 623.

Moreover, in Lovasco, this Court expanded what qualified as a Due Process

violation. There, the government conceded that reckless disregard could also

support a Due Process claim. Lovasco, 431 U.S. at 795 fn. 17. And this Court

reiterated the reckless-disregard standard when summarizing Lovasco in Betterman

v. Montana, 578 U.S. 437, 441 (2016) (noting in parenthetical that the “Due

Process Clause may be violated, for instance, by prosecutorial delay that is

‘tactical’ or ‘reckless’”).

Although this Court never went so far as to announce a formal test in

Lovasco, this Court employed a balancing test. This Court ruled “that proof of

actual prejudice makes a due process claim concrete and ripe for adjudication ….”

Lovasco, 431 U.S. at 789. The only burden on the defendant is actual prejudice.

Once the defendant establishes prejudice, the reviewing court must balance the

prejudice against the reasons for delay: “Thus Marion makes clear that proof of

prejudice is generally a necessary but not sufficient element of a due process claim,

and that the due process inquiry must consider the reasons for the delay as well as

the prejudice to the accused.” Id. at 790.

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Although this Court never set an explicit test in Marion or Lovasco, this

Court’s analysis in both cases supports a balancing test.

C. The balancing test provides a more equitable distribution of

responsibilities because the prosecution, not the accused, knows

the reasons for delay.

And finally, it is fundamentally unfair to require the defense to prove the

prosecution delayed charges for a malicious purpose because the defendant lacks

access to the prosecutor’s motivation.

Cases that have rejected the burden have often observed just how unfair it is

to require the defense to explain why the prosecution failed to act. The Tennessee

Supreme Court recognized that requiring the defendant to prove malicious intent

“places a daunting, almost insurmountable, burden on the accused.” State v. Gray,

917 S.W.2d 668, 673 (Tenn. 1996). The Fourth Circuit noted that the burden

ignores “the difficulty defendants … encounter in attempting to prove improper

prosecutorial motive” and means that many defendants are unable to prove a due

process violation “no matter how egregious the prejudice.” Howell, 904 F.2d at

895. And the Supreme Court of the Virgin Islands similarly concluded “that

requiring the defendant to prove the reason behind the government’s decision to

delay charging him with a crime would be nearly impossible, rendering the rule

defunct ….” Ventura, 64 V.I. at 609.

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Academic critics of the strict two-pronged approach have decried the same

unfairness. Professor Goldfarb recognized that the burden was unfair because

prosecutors have “exclusive access to the information necessary.” Goldfarb, When

Judges Abandon Analogy, 31 Wm. & Mary L. Rev. at 622-28. A more recent

commentator opined that “placing the burden on the defendant to prove both

prongs of a pre-indictment delay claim is unreasonable considering the practical

difficulties faced by defendants in showing improper motive by the prosecution.”

Cleary, Pre-Indictment Delay, 78 Temple L. Rev. at 1051-53, 1069. And just last

year another commentator explained: “The problem with the required showing of

prejudice in most jurisdictions is that it is unfair to shoulder a criminal defendant

with the burden to prove the subjective intention of the prosecutor when only the

prosecutor will have that information.” Rang, The Waiting Game, 66 S.D.L. Rev.

at 161.

Requiring a defendant to explain the reasons for delay makes little sense

because the prosecution is the party with that information. The balancing test

corrects this inequity by requiring the party that knows the reason for delay to

provide the explanation for it.

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CONCLUSION

Courts across the country remain irreconcilably divided regarding how to

review claims of pre-accusation delay. This Court should grant review to resolve

that split.

In doing so, this Court should ultimately adopt the balancing test. The

balancing test is in line with the common law, consistent with this Court’s

precedents, and fairly allocates the burdens to the proper party. This Court should

then remand Scott’s case so that he has an opportunity to prove the prejudice in his

case during an evidentiary hearing.

Respectfully submitted this 23rd day of November, 2022.

/s/ Mikel Steinfeld

Mikel Steinfeld

Counsel of Record

Aaron Moskowitz

MARICOPA COUNTY PUBLIC

DEFENDER’S OFFICE

Counsel for Petitioner

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