Opposition — United States v. MacDonald

OcToBEeR TERM, 1975

No. 75-1892

UNTTED STATES OF AMERICA,

Petitioner,

vs.

JEFFREY R. MacDOoNna.p,

Respondent.

(In Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF IN OPPOSITION FOR

JEFFREY R. MACDONALD

BERNARD L. SEGAL

Suite 220

536 Mission Street

San Francisco, California 94105

MICHAEL J. MALLEY

222 North Central Avenue

Phoenix, Arizona 85004

Attorneys for Respondent.

Of Counsel:

KENNETH A. LETZLER

1229 Nineteenth Street

Wasliington, D.C. 20036

Davi F. PHILLIPs

Suite 618

100 Bush Street

San Francisco, California 94104

———

SS

PERNAU - WALSH PRINTING CO. - 562 MISSION STREET - SAN FRANCISCO. CA $4105

Page

Goateep GHW occoccessvccussnaniensecesstacianaeeeee 1

GOED 0 ccc ccvescoestudessenduceneessesseaenneee 2

Gaationp FUNG ccc cdcccccsceavedepanecesesaanacenas 2

Constitutional Provision and Statute Involved ............ 3

Commer Getenngeh «.o.ccccnccsonccoecescdtesannsadbidesnns 3

Reasons In Opposition To Granting the Writ ............. ll

ee Ff GF erro ere ll

2. Interlocutory Appeals Issue ...............000eee 25

Comebehes «cc cccscvesesesedéseusbcdesssseeeeeneenel 37

Table of Authorities Cited

Cases Pages

Abney v. United States, 530 F.2d 963 (3d Cir.), cert.

granted, 96 S.Ct. 2646 (1976) ............eeeees 25, 27, 28, 30

Babcock & Wilcox Co. v. Foster Wheeler Corp., 54 F.R.D.

oR See Oa ee 27

Barker v. Wingo, 407 U.S. 519 (1972) .............0008-

» ovboccesenceweeseeneeenens 11, 12, 16, 17, 18, 19, 20, 21, 35

Barket v. United States, 530 F.2d 181 (8th Cir. 1975),

petition for cert. filed, 44 U.S.L.W. 3584 (U.S. Mar. 9,

BOND ccccccescscncéentocessssestsaeenae 25, 28, 30, 32, 33

Brady v. Maryland, 373 U.S. 83 (1963) ..............45. 33

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541

(BOG) oc cocccctenéecdeccessasuenstaiannaseee 25, 30, 32, 33

DiBella v. United States, 369 U.S. 121 (1962) ........ 30, 31, 32

Dickey v. Florida, 398 U.S. 30, 38 (1970) .............. 16, 20

Gavino v. MacMahon, 499 F.2d 1191 (2d Cir. 1974) ...... 33

Higgins v. United States, 205 F.2d 650 (9th Cir. 1959) .. 33

Hodgson v. Mahoney, 460 F.2d 326 (1st Cir.), cert. denied,

GD GUE SHRP CHRGED 0 occccssccdeécasenadanmesaneeuns 27

Hudson Distributors, Inc. v. Eli Lilly & Co., 377 U.S. 386

CRORES ce ocvcccocouceceecccoonesednbesaneneneeenie 33

il Tasie or Autuorities Cirep

Pages

Klopfer v. North Carolina, 386 U.S. 213 (1967) ..18, 19, 20, 25

MacDonald y. United States, No. 75-1621 (4th Cir., July 1,

es Ge, I OD on cc ectcoccs 8,10

MacDonald v. United States, No. 75-1681 (4th Cir., July

15, 1975), cert. denied, 423 U.S. 927 ...........ccccees 10

MeCann y. Kerner, 436 F.2d 1343 (7th Cir. 1971) ....... 27

MeSurley v. McClellan, 426 F.2d 664 (D.C. Cir. 1970) ... 33

Mercantile National Bank v. Langdeau, 371 U.S. 55 (1962) 33

Mills v. Alabama, 384 U.S. 214 (1966) .................. 33

Roberts v. United States District Court, 339 U.S. 844

EY SRE RA AEE eee ae a ey eee 33

United States v. Beckerman, 516 F.2d 905 (2d Cir. 1975) 33

United States v. Bishton, 463 F.2d 887 (D.C. Cir. 1972) ..21, 22

United States v. DiSilvio, 520 F.2d 247 (3d Cir.), cert.

EE FE ee 33

United States v. Flores, 501 F.2d 1356 (2d Cir. 1974) ...21, 23

United States v. King, 482 F.2d 768 (D.C. Cir. 1973) .... 33

United States v. Lansdown, 460 F.2d 164 (4th Cir. 1972) 33

United States v. Lovaseo, 532 F.2d 58 (8th Cir.), petition

for cert. filed, 44 U.S.L.W. 3749 (U.S. June 21, 1976)

i EI on a ee 25

United States v. MaeDonald, 531 F.2d 196 (4th Cir. 1976) 7,8

United States v. Marion, 404 U.S. 307 (1971) ..12, 15, 19, 20, 23

Constitution

United States Constitution:

Me MET GANG end ch benecoee de 00cessesec sé< passim

Statutes

Uniform Code of Military Justice, Art. 32 (10 U.S.C.

AR EE IBS LEE, TRE a a ae 4,6

United States Code:

EE a aes )

ee ecu dduunbossuuc 2

a, es A a Il 3, 32

Treatise

9 Moore’s Federal Practice (1975) .................0005. 30

Iu the Supreme Court

OF THE

Rnited States

OcroBEer TERM, 1975

No. 75-1892

UNITED STATES OF AMERICA,

Petitioner,

vs.

JEFFREY R. MacDONALD,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF IN OPPOSITION FOR

JEFFREY R. MACDONALD

The respondent, Dr. Jeffrey R. MacDonald, respect-

fully prays that this Court deny the Petition of the

United States for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (Pet.App. B)'

is reported at 531 F.2d 196. The order of the court of

“Pet, App.” refers to the separately-bound appendix to cne vev-

ermnent’s petition.

2

appeals (Pet. App. A) denying the government’s peti-

tion for rehearing, with a suggestion for rehearing en

banc, is unreported. The opinion and order of the dis-

trict court denying respondent’s motions to dismiss the

indictment (Pet. App. D) are unreported.

JURISDICTION

The judgment of the court of appeals was entered

on January 23, 1976. A timely petition for rehearing,

with a suggestion for rehearing en banc, was denied

on April 30, 1976. On May 26, 1976, the Chief Justice

extended the time for the government for filing a peti-

tion for a writ of certiorari to and including June 29,

1976. On July 29, 1976, the Clerk of the Court ex-

tended the time for the respondent to file an answer

to the petition for a writ of certiorari to and in-

cluding August 18, 1976. On August 16, 1976, the

Clerk of the Court further extended the time for

filing an answer to and including August 20, 1976.

The jurisdiction of the Court is invoked under 28

U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether respondent was deprived of his Sixth

Amendment right to a speedy trial.

2. Whether a pretrial order declining to dismiss an

indictment on speedy trial grounds may he appealed

by the defendant prior to trial,

3

CONSTITUTIONAL PROVISION AND STATUTE INVOLVED

The Sixth Amendment to the United States Consti-

tution provides in relevant part:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial... .

28 U.S.C. §1291 provides in relevant part:

The courts of appeals shall have jurisdiction of

appeals from all final decisions of the district

courts of the United States ....

COUNTER-STATEMENT

1. In February, 1970, Jeffrey R. MacDonald, a

medical doctor, was serving in the United States

Army, attached to the Sixth Special Forces Group, at

Fort Bragg, North Carolina. He resided with his fam-

ily on the base.

In the early morning hours of February 17, 1970,

Dr. MacDonald’s wife, Colette, and his two daughters,

Kristen (age 3) and Kimberly (age 6) were mur-

dered, and Dr. MacDonald was stabbed in various

parts of his body including his right lung, causing a

near-fatal wound. The murders and assault were

committed by the use of several knives, an ice pick

and wooden clubs.

Dr. MacDonald reported to the authorities that the

crimes had been committed by a number of persons,

including a woman. The description of the woman

furnished matched that of a person seen near the

MacDonald household by a military policeman who

was responding to Dr. MacDonald’s telephone call for

help.

4

The Federal Bureau of Investigation joined the

Criminal Investigation Division of the Army (C.I.D.)

in the early days of the investigation. However, the

Army was given the responsibility of carrying out

the investigation. On May 1, 1970, Army authorities

arrested Dr. MacDonald and charged him with the

murders of his family. He was placed in confinement

under 24-hour armed guard and remained there

throughout the subsequent military investigation and

prosecution.

Proceedings against Dr. MacDonald were commenced

under Article 32 of Uniform Code of Military Justice,

10 U.S.C. $832. The presiding officer was Colonel

Warren VY. Rock, an infantry colonel with thirty years

of service and substantial court-martial experience. He

had the full-time assistance of a qualified military

judge, Captain Hammond Beale, as his legal advisor.

Colonel Rock conducted the proceedings for a period

of five months, from June through September of

1970. There were four full weeks of court testimony.

And, an independent investigation was also under-

taken by Colonel Rock.

Throughout the proceedings the government was

represented by counsel who presented its case. Dr.

MacDonald was present and represented by counsel at

all times during the proceedings.

During the proceedings, Colonel Rock ordered the

government to present all the evidence known to it.

The evidence for the prosecution had been gathered as

a result of months of effort by more than one hundred

(100) military and civilian law enforcement investiga-

tors. These investigators had assembled evidence from

4)

approximately 1,500 witnesses including persons in

several foreign countries (A.673).

The home of Dr. MacDonald was taken over exclu-

sively by military investigators and subjected to con-

tinuing examinations and searches. Large sections of

walls and floors were taken as evidence. Blood stained

clothing, wood and fiber samples were taken.

The hundreds of items of physica] evidence that had

been obtained by the government were subjected to in-

tensive examination at the Criminal Investigation

Laboratory of the Army, located at Fort Gordon,

Georgia. Some evidence was also examined by other

experts retained by the government. While some of

this evidence was destroyed in C.I.D. laboratory test-

ing, the remainder was the same physical evidence

submitted to the Federal Bureau of Investigation

laboratory in 1974. No new physical evidence was ever

uncovered after the initial phases of the investigation

in 1970.

The government called twenty-seven (27) witnesses

against Dr. MacDonald during the military proceed-

ings. Dr. MacDonald presented a full defense to the

charges against him. He testified at length under oath

and was subjected to an extensive and vigorous cross-

examination by counsel for the government. He was

also questioned extensively by the presiding officer.

In addition to his own testimony, Dr. MacDonald

called twenty-nine (29) witnesses on his behalf.

During the course of the Article 32 proceedings, Dr.

MacDonald was subjected to two separate psychiatric

examinations. One of these examinations was ar-

6

ranged by his counsel. The other examination was

made by a team of three Army doctors at Walter

Reed Hospital and was arranged by the presiding

officer. In the words of Colonel Rock’s final report,

“there was a striking similarity in the conclusions”

from these examinations (A.607). Those conclusions

were that Dr. MacDonald was a sane, well-balanced

adult and that “he was not hiding” any facts concern-

ing the night of the murders of his family and the

assault on him. In response to a question by the pre-

siding officer as to whether Dr. MacDonald was “ea-

pable” of committing the gruesome killings of his

wife and his children, a forensic psychiatrist advised

the court that Dr. MacDonald was “not capable” of

having committed these crimes (A.607).

On October 13, 1970, at the conclusion of military

judicial proceedings under Article 32 of the Uniform

Code of Military Justice, Colonel Rock, the presiding

officer, submitted written conclusions and filed a

ninety-page report and 2,000-page hearing transcript

in support of his findings. His report concluded with

two findings:

(1) That the charges against Dr. MacDonald

were “not true.”

(2) That the investigation of another named in-

dividual, a woman, be pursued as a suspect in the

murders of the MacDonald family and the assault

on Dr. MacDonald (A.603).?

2As noted in the government’s petition, “A” refers to the ap-

pendix to respondent's brief in the court of appeals, a copy of which

the government has lodged with the Clerk of this Court.

7

The findings of the presiding officer were subjected

to two reviews by higher commanders. First, Major

General Edward Flanagan made a full, independent

examination of the findings and report of Colonel

Rock. General Flanagan, who had originally convened

the Article 32 proceedings, dismissed finally the

charges against Dr. MacDonald.°

General Flanagan’s decision to dismiss the charges

was then subjected to an additional review by Lt.

General John J. Tolson. He affirmed the dismissal of

the charges.' On October 28, 1970, Dr. MacDonald was

released from confinement.

On December 5, 1970, Dr. MacDonald was honorably

discharged from the Army.

2. Approximately six months after his discharge

from the Army, Dr. MacDonald moved to Los Angeles,

California, where he is still living and is Director of

Emergency Medicine at St. Mavy’s Medical Center,

Long Beach, California.

From January, 1971 to 1972, the C.I.D. conducted

an extensive re-investigation of the MacDonald family

murders. The C.I.D. uncovered no substantial new evi-

dence during this re-investigation (A.555).

The C.I.D. completed its re-investigation in Decem-

ber, 1971. It was not until approximately June, 1972

that the C.I.D. submitted the results of its re-investi-

gation to the Justice Department and requested that

the government seek an indictment against Dr. Mac-

8Brief for Appellee at 8, United States v. MacDonald, 531 F.2d

196 (4th Cir. 1976) ; Pet. App. B, 8a.

‘Id.

8

Donald for the murders of his family. The Justice De-

partment refused to pursue an indictment at that time

(Pet. App. B, 9a).

From January, 1972 to July, 1974, Dr. MacDonald,

in person and through counsel, requested the Justice

Department to reach a final disposition of the Mac-

Donald case (Pet. App. B, 9a, n.5; 10a, n.6). The Jus-

tice Department declined to act and asserted that it

was conducting an “on-going” investigation of the

case (Pet. App. B, 10a, n.6).

During that period the Justice Department con-

ducted no significant investigation. The MacDonald

case file was assigned and reassigned to a suecession

of staff attorneys who “reviewed and re-reviewed” the

case (A.27). None of these attorneys took any defini-

tive action on the case.

On January 10, 1974, Carl W. Belcher, Chief of the

General Crimes Section, Criminal Division, Depart-

ment of Justice, stated in writing and was quoted on

January 10, 1974, as saying:

.., the evidence currently available in this case is

insufficient to warrant prosecution against Dy.

MacDonald at this time.°

In July, 1974, Vietor C. Woerheide, a Justice De-

partment Attorney, was assigned the MacDonald ease.

He had no previous familiarity with the MacDonald

case. In Angust, 1974, Woerheide began presenting

5MacDonald v. United States (4th Cir.. No. 75-1621, decided

July 1, 1975, cert. denied, 423 U.S. 926); Brief for Appellant at

55, 0.35; United States v. MacDonald, supra.

]

evidence to a grand jury. Dr. MacDonald testified be-

fore the grand jury for six days.

From August, 1974 to January, 1975, the grand jury

periodically heard testimony on the case. The grand

jury proceedings were totally halted severa! times

during those months so that Woerheide could take a

five-week European vacation and later for him to at-

tend to other personal matters.

On January 21, 1975, Dr. MacDonald testified for a

second time before the grand jury. He was asked by a

majority of the grand jurors to submit to a sodium

amytol (the so-called “Truth Serum”) interview. On

January 23, 1975, Dr. MacDonald informed the grand

jury that he was willing to undergo the sodium amy-

tol procedure and that the results would be available

to the grand jury in little more than one week. On

January 24, 1975, the government’s attorneys submit-

ted a bill of indictment to the grand jury and Dr.

MacDonald was indicted on the same day.

An indictment (No. 75-26-CR-3 of the Eastern Dis-

trict of North Carolina), charging Dr. MacDonald

with three counts of murder in violation of 18 U.S.C.

§ 1111, was returned on January 24, 1975, more than

four and one-half years after he had been initially

arrested. Dr. MacDonald was arrested a second time

at his home in Los Angeles, California, imprisoned,

and held without bail until he was released on bond

following a bail reduction hearing.

On April 8, 1975, he filed ten pretrial motions in the

district court, all of which were subsequently heard

and decided by Judge Franklin T. Dupree, Jr.

10

On May 30, 1975, Dr. MacDonald’s motica for a

change of venue to Los Angeles, California was denied

by the district court.*

On July 28, 1975, the district court denied Dr. Mae-

Donald’s motion to dismiss the indictment because of

discrimination in the selection of the grand jury (A.3).

On July 29, the district court also denied, in a single

four-and-one-half-page order and opinion, seven other

separately filed pretrial motions (Pet. App. D 44a).

Dr. MacDonald appealed this decision to the court of

appeals, which granted a stay of the trial and allowed

the appeal (Pet. App. C, 42a). The appeal was al-

lowed because the court of appeals found that “the

contentions made are not frivolous and the rights as-

serted [both the speedy trial claim and the double jeop-

ardy claim] are too important to be denied review,

and if review is postponed until after the trial of the

case, claimed rights will have been irreparably lost”

(Pet. App. C, 42a-43a).

On January 23, 1976, the court of appeals reversed

the district court and remanded with directions to dis-

miss the indictment on the ground that Dr. MaeDon-

ald had been denied his Sixth Amendment right to

a speedy trial (Pet. App. B, 3a-27a).

3. The government has summarized in its petition,

in part, the sequence of events in this ease following

®“The court of appeals dismissed respondent's appeal from this

order, VacDonald v. United States (4th Cir., No. 75-1621, decided

July 1, 1975, cert. denied, 423 U.S. 926). It also denied his petition

for a writ of mandamus to compel the distriet court to grant the

ehange of venue, MacDonald v. United States (4th Cir.. No.

75-1681, decided July 15, 1975, cert. denied, 423 U.S. 927).

11

the indictment of the respondent. In its discussion of

the dissent of Judge Craven in the court of appeals

it makes clear that he substanially relied for part of

his views on a conclusion that Dr. MacDonald was

never arrested by the Army in 1970 (Pet. App. B,

38a). However, the government concedes its doubts

about the efficacy of this conclusion later in its Peti-

tion for Certiorari. At pages 18-19, n.13, the govern-

ment states it is willing to accept for the purposes of

the petition, that Dr. MacDonald was arrested on May

1, 1970.

REASONS IN OPPOSITION TO GRANTING THE WRIT

1. THE SPEEDY TRIAL ISSUE

a. It would be inappropriate for the Court to

grant the government’s request for certiorari on the

speedy trial issue. In sustaining Dr. MacDonald’s

contention that he was denied his right to a speedy

trial, the court of appeals relied upon the standards

set down by this Court in Barker v. Wingo, 407 U.S.

514 (1972). The application of those criteria was both

precise and accurate, And, they were applied to a case

that concededly is unique and extraordinary on its

facts.

The Barker test required the courts below to con-

sider the length of the delay, the reasons for the

delay, the assertions of the speedy trial right by the

defendant and the prejudice to him. Barker, supra,

at 530,

12

The length of the delay, nearly five years from the

formal accusation of the defendant until indictment,

was by any analysis an extreme one. Dr. MacDonald

Was arrested and charged with murder by the United

States Army on May 1, 1970, and became the “ae-

cused” within the meaning of the Sixth Amendment

and thus his speedy trial rights were triggered.’

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

was not indicted until January 24, 1975, more than

four and one-half years later. As the Court explained

in Barker, supra, at 530, the length of the delay is

a “triggering mechanism,” which determines whether

it is necessary to consider the other three criteria.

And, the Court in Barker considered a period of more

than four years more than enough to require inquiry

into the other criteria,

The second of the Barker criteria is the reason

assigned by the government for the delay in the pres-

ent case. This Court in Barker, supra, at 531, ex-

plained that:

. different weights should be assigned to differ-

ent reasons. A deliberate attempt to delay the

trial in order to hamper the defense should be

weighed heavily against the government. A more

neutral reason such as negligence . .. should be

considered since the ultimate responsibility for

the circumstances must rest with the govern-

ment rather than with the defendant. Finally,

7The Solicitor General concedes for the purpose of his petition

the fact of Dr. MacDonald's arrest in May of 1970. Petitioner's

Brief For Certiorari n.13, at 19.

13

a valid reason, such as a missing witness, should

serve to justify appropriate delay.

The respondent does not claim that the delay was

a deliberate attempt to hamper his defense. And, the

government has not suggested that its delay resulted

because of a missing witness or related reason. Rather,

it is in the middle ground of negligence and indiffer-

ence to Dr. MacDonald’s constitutional rights that

the cause of the delay is to be found.

The Criminal Investigation Division of the Army,

at the request of the Department of Justice, reinves-

tigated the MacDonald case. After a one-year investi-

gation, the C.I.D. submitted a thirteen-volume report

of its findings to the Department of Justice with a

recommendation that an indictment be sought against

the respondent (Pet. App. B, 9a).

However, the Department of Justice failed to act.

Instead, the files were “assigned and reassigned” and

“review(ed) and re-review(ed)” (A. 27).

In January 1974, the Chief of the General Crimes

Section of the Criminal Division of the Department

of Justice, Carl Belcher, was writing that there was

insufficient evidence to bring Dr, MacDonald to trial

(Pet. App. B, 10a, n.6). And, in response to a letter

from Dr. MacDonald’s counsel, in which the respond-

ent was urging the final disposition of the case,

Belcher answered with the investigator’s catechism

that “the matter is under investigation,” and “that

this case will remain under consideration for the

foreseeable future” (Pet. App. B, 10a, n.6, emphasis

supplied).

14

In fact, the MacDonald case was not under active

investigation for most of the time it was in the

Department of Justice. The court of appeals found

that “no significant new investigation was undertaken

during this period [of more than two years after the

C.D. made its recommendation in June 1972],

and none was pursued from August 1973 until the

grand jury was convened a year later” (Pet. App. B,

21a).

And, the only significant result of the grand jury

proceedings was to have the Federal Bureau of In-

vestigation Crime Laboratory re-examine and reinter-

pret the evidence that had been in possession of the

government for four and one-half years. The govern-

ment was challenged on the issue of whether it had

developed any new evidence that would account for

the extraordinary delay in the case. The colloquy that

took place between the United States Magistrate and

counsel for the government at the bail reduction hear-

ing in this case provided the answer:

THe Magistrate: But this evidence has been

gone over—this evidence is four or five years

old now...

Assistant Unitep Srares Arrorney: Yes.

The evidence with regard to the pajama top, the

bath mat and the sheet: all that evidence has

heen produced within the last five months by the

F.B.1. Lab.

THe Maarsrrate: But that evidence—the

analysis of that evidence was within the last five

months, is that correct ?

Assistant UNrirep States Arrorney: Yes, sir.

The evidence was tn existence the whole time:

the bloody sheet, the bath mat and the...

15

THe Maatstrrate: The time—three to four

years passed between the creation of the evidence

and its analysis?

Assistant Unirep Svates ArrorNney: That’s

correct. (A.55, emphasis supplied.)

When the Magistrate asked counsel for the govern-

ment to explain the delay, he was told that “govern-

ment bureaucracy” was to blame (Pet. App. B, 22a).

The court of appeals did not misapply the criteria

of this Court when it concluded that this is an un-

acceptable excuse for delaying the prosecution of Dr.

MacDonald. “Government bureaucracy” is another

way of saying that the Justice Department was un-

able to regulate itself and to meet the obligations

imposed upon it by the Sixth Amendment to

. move with the dispatch that is appropriate

to assure an accused an early and proper dis-

position of the charges against him. Marion,

supra, at 313.

If the court of appeals had not rejected the “gov-

ernment bureaucracy” excuse in this case, then every

government delay would have to be excused on the

ground that it was the best that can be expected

from inefficient, indifferent and even negligent prose-

cution agencies.

Part of the “government bureaucracy” delay was

due to the time consumed to allow a succession of

attorneys to “become familiar” with the case. The

affidavit of Deputy Assistant Attorney General Kevin

T. Maroney described the process;

16

The case was assigned and reassigned to various

staff attorneys, of the General Crimes Section,

who repeatedly reviewed and re-reviewed the

matter, Numerous conferences were held .. .

(A, 27-28).

However, Mr. Maroney never explains what action,

if any, the Department of Justice took as a result of

this constant review and re-review of the matter. The

government itself offered no reason why so many

attorneys were used, Nor, when one attorney had

studied the case, why he or she did not submit a ree-

ommendation as to the disposition to be made of the

case. But when the matter was finally turned over to

a Justice Department attorney with instructions to

proceed with the case, he was able to review all the

files and commence the presentation of evidence to

the grand jury within one month after being assigned

to the matter.

Perhaps, as this Court suggested in Dickey v. Flor-

ida, 398 U.S. 30, 38 (1970), having too few lawyers

may make some delay inevitable. But, a delay result-

ing from having too many lawyers is not inevitable.

The third factor this Court laid down in Barker

is the defendant’s responsibility to assert his right.

The court of appeals found that Dr, MacDonald had

“consistently expressed a desire to have the case re-

solved” starting as early as January, 1972 (Pet. App.

B, 24a). His attorney wrote letters to the Justice

Department offering the government the opportunity

to question Dr. MaeDonald and asking for a final

decision on the matter (Pet. App. B, 2a, n.5; 10a,

n.6; 24a),

17

Far from impeding the prosecution, Dr. MacDonald

testified and was cross-examined at his Article 32

hearing; he submitted voluntarily to a C.1.D. inter-

view or February 19, 1971 (A. 557); he waived im-

munity and testified for six days before the grand

jury; and he repeatedly offered to be interrogated by

the Department of Justice. He even agreed to a grand

jury request to submit to interrogation under sodium

amytol. But all of Dr. MacDonald’s requests for

expedition were ignored by the government.

“Both the facts and the law,” the court of appeals

held, ‘“‘warrant the conclusion that MacDonald reason-

ably asserted his right to a speedy trial” (Pet. App.

B, 24a). By any reckoning this factor, too, must weigh

heavily on respondent’s side of the balance. Barker,

supra. And, the court of appeals properly applied

it in its analysis.

The fourth factor this Court laid down in Barker

for judging speedy trial claims is one of prejudice to

the accused. In discussing this factor, this Court said:

Prejudice, of course, should be assessed in the

light of the interests of defendants which the

speedy trial right was designed to protect. This

Court has identified three such interests: (i) to

prevent oppressive pretrial incarceration; (ii) to

minimize anxiety and concern of the accused;

and (iii) to limit the possibility that the defens<

will be impaired. Barker, supra, at 532.

Dr. MacDonald has twice been subjected to con-

finement, for a total of more than six months, as

a result of these charges. However, this Court has

18

specifically held in Klopfer v. North Carolina, 386

U.S. 213 (1967) that oppressive pretrial confinement

is not required for relief under the speedy trial por-

tion of the Constitution,

But, Dr. MacDonald’s ability to present his defense

has seriously been impaired by the passage of so many

vears. The case against Dr. MacDonald is, in the

words of the court of appeals, “wholly circumstantial

and rests on a detailed, hypothetical reconstruction of

the crime” (Pet. App. B, 5a-6a). It depends on the

recollection of such details as the position of a chair

or flowerpot, the manner in which a pajama top was

folded. Such matters are difficult enough to remember

accurately immediately after the event; five years

later it is nearly impossible to rely on the accuracy

of the witnesses’ recollection of such details. The best

that could be hoped for after so much time, is testi-

mony from memories “refreshed” by reference to

records and transcripts where they exist."

Even the termination of the military proceedings

against Dr. MacDonald and his release from deten-

tion on bail, in the words of the court of appeals,

‘In this regard, the court of appeals noted:

The prosecution emphasizes that all of the testimony at the

Article 32 hearing and the statements made to investigators

since then have kept and may be used to refresh memories.

Yet this in itself illustrates the prejudice to MacDonald. A

stale witness, foreed to rely on statements made half a decade

previously, cannot be as effective as one actually remembering

what he saw. Since the details of any witness’s testimony may

change over five years, the adverse inference a jury might

draw from the government’s use of its old records to impeach

defense witnesses cannot be overlooked (Pet. App. B, 26a).

And, this Court declared in Barker that “loss of memory .. . is

not always reflected in the record because what has been forgotten

can rarely be shown.” 407 U.S. at 5382,

19

“did not... dispel the effects of the government’s

initial accusations” (Pet. App. B, 17a). The court

pointed out that “MacDonald, of course, realized that

the favorable conclusion of the Article 32 proceedings

was not the end of the governmnent’s efforts to con-

vict him” (Pet. App. B, 17a). And, as a result Dr.

MacDonald also suffered intangible, but nonetheless

real, prejudice as outlined by the Court in Klopfer

and Barker, He has had to retain counsel, at enor-

mous expense, for more than six and one-half years.

He has lived for those years with “anxiety and con-

cern” of this unresolved prosecution (Barker, supra,

at 532) and with the public scorn (Klopfer, supra,

at 222) and obloquy (Marion, supra, at 320) attend-

ant upon his having remained for six and one-half

years the only suspect in the murders of his wife

and children.®

It was apparent to the court of appeals that by the

criteria set forth in this Court’s speedy trial cases,

dealing with intangible as well as tangible prejudice

to an accused, Dr, MacDonald has suffered prejudice

from the unwarranted delay in bringing his case to

trial. This factor was properly weighed against the

government.

So, in serutinizing the application of Barker v.

Wingo, supra, by the court of appeals, it is apparent

that the decision in the MacDonald case does not. raise

*Ilf this Court felt it necessary to take into account the publie

feeling toward Klopfer, who was accused of nothing more serious

than having refused to leave a restaurant when asked to do so,

surely the publie feeling against Dr. MacDonald, accused of having

murdered his family, cannot be viewed less seriously,

20

questions that are so difficult, so significant, and of

wide enough general application to require review by

this Court on certiorari, It does not require another

opinion of this Court to establish that a delay of more

than four and one-half years between institution

of criminal proceedings and indictment is sufficiently

long to justify an inquiry into the rest of the Barker

criteria, It does not require review by this Court to

establish that “government bureaucracy,” inefficiency

in the Department of Justice, and an unexcused four-

year delay in submitting obviously material evidence

to the Federal Bureau of Investigation for a second

laboratory examination, are not adequate reasons to

justify or exeuse the delay, And yet, these are the

reasons advanced by the government to excuse its

conduct, The court of appeals properly weighed these

circumstances heavily against the government.

It is not necessary for this Court to pass on the

consistent assertion by Dr. MacDonald of his right

to a speedy disposition of his case because the gov-

ernment has never seriously contended that he did

not do so,

After the opinions of this Court in Klopfer, Dickey,

Marion and Barker, it is not necessary to have yet

another decision of this Court in order for there to

be recognition that the respondent was prejudiced

by the years of delay in this case.

Respondent suggests that the determinations the

Solicitor General asks this Court to make in MacDon-

ald have already been made in Barker, supra, and

that the criteria set forth there have been precisely

ee ewes —

nes a

A ALLL

21

and correctly applied by the court of appeals. There

are certainly cases in whieh the application by ower

courts of the four criteria of Barker is not clear, and

in which the guidance of this Court is needed to as-

sure the correct application of the speedy trial provi-

sion of the Constitution. But they were clear enough

here for the court of appeals to be guided in its deter-

mination, and that court followed the guidelines cor-

rectly.

b. The government suggests that review is needed

to resolve a “conflict” with cases from two other cir-

cuits, United States v, Bishton, 463 F.2d 887 (D.C.

Cir. 1972) and United States v. Flores, 501 F.2d 1356

(2d Cir. 1974). The suggestion is a make-weight argu-

ment without merit. The decisions in these cases do

not indicate a conflict with MacDonald,

In Bishton, supra, the delay complained of was

only three months. In MacDonald, even when the

time for the lengthy C.I.D. “re-investigation” is ex-

cluded, the delay complained of is more than two and

one-half years.

Further, the delay in Bishton resulted from a

“highly technical” flaw in the indictment (Bishton,

supra, at 890-91) and from the choice of the wrong

court in the judicial structure of the District of Co-

lumbia to which an appeal was taken. There was no

allegation that the government did not proceed with

creditable speed and at a pace that was at least delib-

erate, The problem was simply that it had chosen the

wrong court for the appeal and a negligible time delay

resulted. The court in Bishton stated;

22

We do not intimate that the delay caused by ap-

peals by the Government may never constitute

denial of a defendant’s right to speedy trial.

Whenever the Government’s action at any stage

of the proceedings indicates .. . neglect . .., the

resulting delay is not justified. Bishton, supra,

at 890.

After discussing the reasons for the delay in Bish-

ton’s case, the court concluded that:

The foregoing analysis of the delays in this case

reflects no neglect, indifference, or lack of reason-

able diligence on the part of the Government.

Bishton, supra, at 891.

How very different Bishton is from MacDonald,

where the very gravamen of the respondent’s com-

plaint and the court of appeals findings are: that

the Government let years pass through inefficiency ;

through passing of files from attorney to attorney

until a few months before the expiration of a statute

of limitations; through neglect, because of “bureauc-

racy,” to re-analyze existing evidence; and, through

unconcern for speedy trial rights despite repeated

efforts by the accused to have them respected. The

Court in Bishton declared that if it had been a case

... Where the delays could not be explained or

justified by the government ..., then the balance

between the interest of the public and the pro-

tection of the individual might be different. Bish-

ton, supra, at 891-92.

But, that, of course, is the MacDonald case. It is

difficult to see the conflicts that the Solicitor General

perceives as existing.

23

The Flores case does not even deal with the Sixth

Amendment, which is entirely the basis for the deci-

sion in MacDonald, The speedy trial right allegedly

violated in Flores arose from Rule 4 of the Plan for

the United States District Court for the Eastern Dis-

trict of New York for Achieving Prompt Disposition

of Criminal Cases, That plan provided for dismissal

with prejudice if the government was not ready for

‘rial within six months of arrest or charge. While

sJlowance was made for certain excusable delays, the

local rules did not permit the government more than

six months cumulative delays before trial. Flores is

not a Sixth Amendment case and cites none of this

Court’s speedy trial decisions. It was decided entirely

under local Rule 4 and does not pose any conflict with

MacDonald,

The government’s allegation of conflict among the

circuits is frivolous.

ce. The government also urges that review is neces-

sary because Dr. MacDonald was released from cus-

tody and the charges against him dismissed after his

first (Army) prosecution, “A necessary consequence”

of the language of Marion, the Solicitor General

argues :

... 1s that the right to a speedy trial is not

implicated in the period after the charges against

an accused have been dismissed and he has been

released from custody. At that point, he no longer

stands under public accusation or surface inter-

ference with his liberties; necessarily, there can

at that stage be no Sixth Amendment obligation

upon the government to bring to trial expedi-

24

tiously a person against who (ste) no criminal

charges are outstanding. Petitioner’s Brief for

Certiorari at 18.

This argument fails both on the facts and on the

law. It fails on the facts because even after the dis-

missal of the Army charges, Dr. MacDonald remained

under active suspicion. He was openly and exhaus-

tively reinvestigated by the C.I.D. Even when he was

out of the Army, Dr, MacDonald was reinterrogated

by the C.1.D. in a formal, recorded session on Feb-

ruary 19, 1971 (A. 557). He was given Miranda warn-

ings at that time. The suspicion of him was public

and continuous during the period following the dis-

missal of the Army charges,

Even more seriously, the government’s argument

fails on the law. There was no significant difference

between Klopfer, released from custody because the

charge against him was nolle prossed but subject to

reprosecution by North Carolina, and MacDonald,

released from custody, the charge against him dis-

missed, but still subject to prosecution by the United

States. As the court of appeals said, Dr. MaeDonald’s

case “bears a marked resemblance” to Klopfer’s (Pet.

App. B, 18a), After formal arrest and charge, Klop-

fer and MacDonald both contested their accusations

with apparently inconclusive results. The prosecution

authorities in both cases believed they had a right to

go forward promptly, but neither proceeded to a trial.

Both defendants were deprived of any forum in which

to vindicate themselves, and both had to await the

government’s pleasure, which was far from prompt.

25

And, in both cases it was held that the defendant's

Sixth Amendment rights to a speedy trial were not

extinguished by the first dismissal of the charges

against him, if a second prosecution was not barred.

As the court of appeals recognized, the contention of

the government cannot survive a reading of this

Court’s opinion in Klopfer.

2. THE INTERLOCUTORY APPEALS ISSUE

The petition in this case should be denied because

the government’s claim, that the issue of interiocutory

appeals in criminal cases is such a “vexing” matter

(Petitioner’s Brief for Certiorari at 15) that it re-

quires present review by this Court, is an illusory one.

First, in the more than twenty-seven years since the

rule in Cohen v. Beneficial Industrial Loan Corp., 337

U.S. 541 (1949), was announced, the courts of appeals

have applied the rule rigorously to prevent defendants

from obtaining unwarranted pretrial delays by the

filing of unmeritorious interlocutory appeals.

This Court has before it memoranda from the Solic-

itor General in three cases,'° in addition to the present

one, in which the government has raised the issue of

interlocutory appeals. In not one of these memoranda

has the government pointed to a single fact to sustain

'0U/nited States v. Lovasco, 532 F.2d 59 (8th Cir. 1976), petition

for cert. filed, 44 U.S.L.W. 3749 (U.S. June 21, 1976) (No. 75-

1844); Barket v. United States, 530 F.2d 181 (8th Cir. 1975),

petition for cert. filed, 44 U.S.L.W. 3584 (U.S. Mar. 9, 1976) (No.

75-1280) ; Abney v. United States, 530 F.2d 963 (3d Cir.), cert.

granted, 96 S. Ct. 2646 (1976).

26

its contention that interlocutory appeals in criminal

cases have raised a problem of significant proportion.

The government points to no data to indicate that such

appeals have created any measurable burden to the

costs of appeals or delay in district courts."’ It has

failed to do so because the facts or data would not sus-

tain the government’s suggestions.

Second, the government’s characterization of the

present case as an appropriate one for review because

it arises “in a context not complicated by the special

circumstances that may obtain in cases involving dou-

ble jeopardy claims” (Petitioner’s Brief for Cer-

tiorari at 15) patently ignores the facts. This case

presents more complications than any of the other

so-called interlocutory appeal cases before this Court.

The case was originally before the court of appeals

because of Dr. MacDonald’s double jeopardy/collateral

estoppel claim. That claim, based upon a 1970 mili-

tary proceeding which concluded with a formal finding

that the murder charges were “not true,” was found to

be “not frivolous” (Pet. App. C, 42a). The court of

appeals withheld ruling on the claim, however, because

of concern for its possible impact on the military jus-

tice system (Pet. App. B, 28a). Because of judicial

restraint, the court limited its ruling to the speedy

trial claim of respondent. But it is clear that the

court of appeals perceived the double jeopardy and

speedy trial claims of Dr. MacDonald to be of equal

importance and merit from the outset (Pet. App. C,

42a).

11Jn fact, the contrary is true. See pp. 35-36 infra.

27

The present case, hy every standard, presents one

set of unique facts after another. The Solicitor General

has had occasion previously to acknowledge this to

this Court.’ The respondent’s counter-statement of

facts details some of the extraordinary background of

this case.

Third, the courts of appeal and district courts are

well equipped to deal with frivolous interlocutory

criminal appeals. The courts of appeal have dealt

swiftly with such appeals by granting government mo-

tions to quash erroneously brought cases. Where they

have undertaken to hear pretrial appeals on a double

jeopardy claim, they have on oceasion also considered

the so-called pendent issues for the purposes of

swiftly disposing of them to prevent further delay by

the defendant. (See Abney v. United States, note 10

supra.)

And, district courts have not found themselves pre-

vented from proceeding to trial just because a erim-

inal defendant has filed a frivolous interlocutory

appeal. Such appeals have been held, in a number of

cases, not to divest the district court of its jurisdiction

to proceed with the case."

_1?Respondent petitioned this Court for review of the i

his efforts to obtain a change of venue. MacDonald a

States, cert. denied, 423 U.S. 926, 927 (1975). The \.

tion memorandum of the Solicitor General observed, “Petitioner's

contentions turn upon the rather unusual facts of his case, and he

presents no questions of general im ce requiring review by

this Court.” Memorandum in Opposition, at 4. (Emphasis supplied. )

'8Hodgson v. Mahoney, 460 F.2d 326 (1st Cir.), cert. denied

409 U.S. 1039 (1972) ; McCann v. Kerner, 436 F.2d 1343 (7th Cir.

: coc ilcox Co. v. Foster Whe

474 (D.N.J. 1971). ee

28

In urging this Court to review the action of the

court of appeals in deciding the MacDonald case on

an interlocutory appeal, the government relies heavily

on its earlier memoranda submitted to this Court in

Abney v. United States, note 10 supra and United

States v. Barket, note 10 supra. The argument found

in each of these petitions does not properly address

itself to the propriety of the action of the court

below in entertaining an interlocutory appeal in a

case as unique as MacDonald.

a. In Abney the government simply asserted that

both of petitioner’s claims (double jeopardy and the

failure of a bill of indictment to charge an offense)

were “insubstantial” (Abney, Memorandum at 4, n.2).

And, the government argues, if defendants are encour-

aged to believe that they can obtain pretrial appellate

review of complex and close claims of any sort by

tying them to insubstantial double jeopardy claims,

the effect would be to encourage significant pretrial

delay in criminal cases."’

When this argument is examined either in terms

of the totality of federal criminal cases, or the Mac-

Donald case in particular, the insubstantiality of this

contention is apparent,

The government’s contention requires an inquiry

into the question of which federal criminal defendants

14 argument asserted by the government in of

Pm ng) Barket, Memorandum at 7, n.9), that potential for delay

caused by joining a colorable statutory claim to a frivolous double

jeopardy claim is immense,” should not be used by this Court by

ee of analogy for, again, such are not the facts of the present

case.

29

are in a factual position to raise even the most spe-

cious double jeopardy claim.

Among the total number of federal criminal CUSeS,

only a very small percentage represents re-trials, ei-

ther as a result of a new trial having been granted or

because of a mistrial. And, review of the MacDonald

case by this Court in no way answers the question of

whether claims of double jeopardy, made under such

circumstances, are substantial or not.

In the particular terms of the MacDonald case, the

court of appeals had more than adequate grounds for

recognizing the uniqueness of its facts. A ease in which

the United States has once charged an accused with

murder, gone through a full military judicial proceed-

ing which resulted in a finding that the charges were

“not true,” and then four and one-half years later at-

tempted to prosecute the accused again in a civilian

proceeding on these charges, is not likely to occur

again, And, its occurrence, and consequent double

jeopardy challenge, including interlocutory appeal,

presents no real threat to the orderly disposition of

the great mass of criminal cases,

In Abney, the appellate court entertained an inter-

locutory appeal of a claimed insufficiency in an in-

dictment because it held the claim to be “pendent” to a

double jeopardy claim. This is to be contrasted to the

situation in the present case. While the court of ap-

peals held that the respondent’s speedy trial claim

was pendent to his double jeopardy claim (Pet. App.

B, 5a), both were adjudged independent claims of

constitutional dimensions, The court of appeals, it

30

should be noted, had made an initial finding that this

claim was not a frivolous one (Pet. App. C, 42a; see

also Pet. App. B, 6a). No such finding was made in

Abney, and none was possible under the facts. Thus,

the government arguments articulated in Abney are

misapplied to respondent’s case.

b. The government also relies heavily on the argu-

ments made by it in its memorandum in Barket as pro-

viding support for its request for certiorari in the

MacDonald case. In Barket, the government memoran-

dum acknowledges that the settled principle embodied

in 28 U.S.C. §1291 is that an appeal ordinarily must

await final judgment. (Barket, Memorandum at 6, em-

phasis supplied.) However, nowhere in its subsequent

argument does the government acknowledge that any

significance is to be attached to the corollary of this

rule: that unusual circumstances require the remedy

of an interlocutory appeal."®

The government also argues, in its Barket memoran-

dum, that this Court’s decision in DiBella v. United

States, 369 U.S. 121 (1962), in effect is virtually an

absolute bar to any pretrial appeal in criminal cases.

Such an interpretation is erroneous.

15The government suggestion of the use of a writ of mandamus

for review of erroneously rejected double jeopardy claims is in-

effectual (Barket, Memorandum at 11). The rigidity of the rules

pertaining to mandamus, even to obtain review of valid double

jeopardy claims, is too great to be workable. 9 Moore’s Federal

Practice J 110.01 (1975). When this Court decided Cohen v. Bene-

ficial Industrial Loan Corp., supra, it was fully cognizant that

mandamus was available as a potential remedy for issues that liti-

gants sought to have reviewed on pretrial appeal. The Court,

nevertheless, recognized the inadequacy of this writ and provided

for an exception for limited numbers of pretrial appeals.

31

In DiBella the defendant sought to appeal pretrial

the denial of his motion to suppress evidence. In re-

jecting his right to a pretrial appeal, this Court

stressed that the constitutional guarantee of a speedy

trial, when balanced against the right to an interlocu-

tory appeal on this particular issue, was of a greater

significance and required that such appeals not be al-

lowed prior to verdict.

Further, there was present in DiBella the serious

practical consideration of the effect of pretrial appeals

from the denial of motions to suppress. Such motions

are active possibilities in the overwhelming nwuber of

criminal cases. To allow pretrial appeals in such vol-

ume posed potential problems of delay in the trial of

a great number of criminal cases. DiBella foreclosed

such a possibility.

The opinion of the Court in DiBella emphasized

that historical principles give highest. priority to the

trial of criminal cases without delay. The decision

sought to put the finality rule into proper perspective

as it relates to criminal cases. But, it also clearly

acknowledged the need to maintain flexibility in the

administration of the rule. As Mr. Justice Frankfur-

ter stated in DiBella:

Since the procedural aspects of law deal with the

practical affairs of men and do not constitute an

abstract system of doctrinaire notions. Congress

has recognized the need of exceptions for inter-

locutory orders in certain types of proceeding’s

where the damage of error unreviewed before the

judgment is definitive and complete, see Collins v.

Miller, 252 U.S. 364, 370, has been deemed greater

32

than the disruption caused by intermediate ap-

peal. 369 U.S. at 124 (Emphasis supplied).

The inflexible interpretation of DiBella urged by

the government would bar absolutely all interlocutory

appeals in criminal cases. It asks this Court to reject

the modest flexibility described as necessary by

Justice Frankfurter.

The government’s argument also asks this Court to

read DiBella as if it impliedly overruled the declara-

ton of this Court in Cohen v. Beneficial Industrial

Loan Corp., supra, that there is a distinct and limited

number of criminal cases in which in interlocutory

appeals can be taken."*

The eriteria set down by this Court in Cohen were

specific and clear. The exception applies only to that

“small class of claims of right which required appel-

late review before trial.’” These rights were described

by Mr. Justice Jackson as

. separable from, and collateral to, rights as-

serted in the action, too important to be denied

review and too independent to be deferred until

the whole case is adjudicated. The Court has long

a ggestion i re ’ dum in Barket

16The su tion in the government’s memoran

(Memorandum at 9) that perhaps Cohen does not even apply to

criminal cases is unsupported by the opinions of any lower courts.

And, the government comes rather late to this suggestion in view

of the twenty-seven-year history of this rule, which has been ap-

plied sparingly and with no significant interference with the move-

ee ae TS C, $1291 part of its exercise of

Congress enacted 28 U.S.C, 51291 as pa

Bite on. power over the appellate jurisdiction of federal courts.

In the intervening years since the Cohen doctrine was announced

it is significant to note that Congress has not found that the prac-

tieal administration of this exception has created conditions re-

quiring it to foreclose this limited right to interlocutory appeals

in criminal cases.

33

given this provision of the statute this practical

rather than a technical construction. Cohen v.

Beneficial Industrial Loan Corp., supra, at 547.

The government’s contention that “once pretrial ap-

pellate review of double jeopardy claims is accepted,

some courts may be quick to extend the practice be-

yond cases involving only that particular constitu-

tional provision,” is unsupported by the history of this

exception. Rather, a fair reading of the cases can lead

only to the conclusion that the appellate courts have

severely restricted the use of the Cohen exception."

This Court itself has reaffirmed that the emphasis

in the application of this exception should be on a

“practical rather than technical construction” to be

given to the term “final judgment” found in the ap-

peals statute."® It is clear that the Court has stressed

to the lower courts the efficacy and justice of a prag-

matic rather than a dogmatic approach in determining

what is “final.” The courts have acted within these

limits and with restraint.

ce. The court of appeals allowed Dr. MacDonald

to pursue an interlocutory appeal on speedy trial

'SGavino v. MacMahon, 499 F.2d 1191 (2d Cir. 1974) ; United

States v. Beckerman, 516 F.2d 905 (2d Cir. 1975); Higgins v.

United States, 205 F.2d 650 (9th Cir. 1959); Roberts v. United

States District Court, 339 U.S. 844 (1950) ; United States v. Lans-

down, 460 F.2d 164 (4th Cir. 1972); United States v. King, 482

F.2d 768 (D.C. Cir. 1973); McSurley v. McClellan, 426 F.2d 664

(D.C. Cir. 1970) ; United States v. DiSilvio, 520 F.2d 247 (3rd

Cir.), cert. denied, 96 S. Ct. 447 (1975): United States v. Barket,

supra, note 7.

‘Mercantile Nat'l Bank v. Langdeau, 371 U.S. 555 (1962) ;

Brady v. Maryland, 373 U.S. 83 (1963); Hudson Distrib. Inc. v.

Eli Lilly & Co., 377 U.S. 386 (1964) ; Mills v. Alabama, 384 U.S.

214 (1966).

34

grounds only after it had first determined that the

claim was inextricably tied to his double jeopardy

claim. It did not decide that a speedy trial claim

alone or one linked with a double jeopardy contention

automatically requires the allowance of an interlocu-

tory appeal. Rather, the court made clear that it was

only undertaking to decide the speedy trial issue be-

cause of the following special circumstances :

1. A decision on the double jeopardy issue in-

volved deciding a matter that would have a general

impact on military law. Rather than decide the case

on broad grounds the court acted only on the nar-

rower speedy trial claim. The court explicitly noted

that it was motivated to do so because of a genuine

sense of judicial restraint. (Pet. App. 3, 5a.)

2. The court was persuaded to hear and decide the

speedy trial claim because of the “extraordinary na-

ture of MacDonald’s case.” Id. And, the court had

only decided to do so after having made an initial

determination, at the time that the appeal was filed,

that the claim was meritorious. (Pet. App. C, 42a.)

The court of appeals carefully noted that it did

not intend to allow the claim of denial of speedy trial

to serve as an opportunity for defendants generally

to take interlocutory appeals. Rather, the court noted:

Not every speedy trial claim, however, merits an

interlocutory appeal. Generally, this defense

should be reviewed after judgment. (Pet. App.

B, 5a.)

8 Tt was clear from the extensive record in the

ease that the court had before it all the facts on the

35

speedy trial issue that would have been presented to

it if the appeal had been taken post-trial. (Pet.

App. B.)*°

Having taken the MacDonald case because it raised

a serious and well-founded double jeopardy claim

which was intertwined with a well-founded speedy

trial claim and being impressed with the constitu-

tional magnitude of the latter claim, the court acted

appropriately in granting relief on that ground. The

unique legal and factual context in which the issue

arose justified the decision of the court of appeals to

decide the speedy trial issue pretrial.

d. The extent to which the government has pre-

sented an illusory issue of interlocutory appeals to

this Court, in its effort to actually obtain review on

the merits of the speedy trial decision, is demon-

strated by some data,

An inquiry made to the Division of Information

Systems of the Administrative Office of the United

States Courts revealed that the office no longer pub-

lishkes figures on the number of interlocutory appeals

taken to the courts of appeals. Such data were col-

lected and published until 1970. Publication was dis-

continued thereafter, however, because of the small

number of cases involved.

The figures for the year 1970, however, are of in-

terest. In that year, a total of 291 applications were

20Thus, the government’s reading of Barker, supr 2

(1972), that an appellate review of a speedy Bae gen Cage on

preg rd Raney coms - sw a complete presentation of the

acts : y effectuated here. (Petiti ‘ i

Mak SS re. (Petitioner’s Brief for

36

made for interlocutory appeals in all courts of ap-

peals. The figure does not indicate, and data are

apparently not available to show, what proportion

of these cases were criminal matters,

e. Finally, it should be noted that even looking at

the narrowest possible effect of a review by this Court

of the speedy trial decision of the court of appeals,

i.e., its impact on MacDonald alone, such a review

may well be of doubtful significance. In addition to

his claim of denial of speedy trial, respondent has

also a claim of double jeopardy which the court of

appeals held was “not fanciful” (Pet. App. B, 6a).

The court of appeals stated:

In our order of August 15, 1975, allowing Mac-

Donald’s petition for an interlocutory appeal, we

noted his contentions that he had been denied his

rights against double jeopardy and to a speedy

trial. We then concluded . . . that the contentions

made are not frivolous and that the rights as-

serted are too important to be denied review, and

if review is postponed until after the trial of the

case, claimed rights will have been irreparably

lost. United States v. Lansdown .... (Pet. App.

B, 4a, n.3).

When it entered its judgment on the appeal later, the

court stated, on the double jeopardy issue, that:

In view of .. . our disposition of the case under

the speedy trial provision of the Sixth Amend-

ment, we find it unnecessary and imprudent to

render an opinion (Pet. App. B, 28a).

If this Court should grant certiorari, beyond that,

if this Court should thereafter reverse the decision,

37

the case will not be able to proceed to trial. Instead,

the district court will have to reconsider the respond-

ent’s motion to dismiss because of double jeopardy/

collateral estoppel in light of the expressed views of

the court of appeals.

Because of all of these circumstances, the respond-

ent’s case is an inappropriate candidate for review

by this Court on certiorari of the merits of the speedy

trial determination of the court of appeals,

CONCLUSION

For all of the foregoing reasons, the respondent,

Dr. Jeffrey R. MacDonald, respectfully submits that

the Petition for a Writ of Certiorari should be denied.

August, 1976.

Respectfully submitted,

BERNARD L. SEGAL

MICHAEL J. MALLEY

Attorneys for Respondent.

Of Counsel:

KENNETH A. LETZLER

Davip F. PuHiLires