Opposition — Szima v. New Jersey

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IN THE MICHAEL RODAK, JR. CLERK

Supreme Court of the United

Ocroser Term, 1976

No. 76-207

Josep G. Szmma. :

Petitioner,

vs.

Strate or New Jersey,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of New Jersey

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Wruiam F. Hytanp

Attorney General of New Jersey

Attorney for Respondent State of

New Jersey

State House Annex

Trenton, New Jersey 08625

Davin S. Barme

Deputy Attorney General

Chief, Appellate Section

Division of Criminal Justice

State of New Jersey

Of Counsel

Dante Louts GrossMAN

Deputy Attorney General

Division of Criminal Justice

Appellate Section

State of New Jersey

13 Roszel Road

P. O. Box _CN24

Princeton, New Jersey 08540

On the Brief

Adams Press Corp., 11 Commerce Street, Newark, N. J. 07102—(201) 623-8611

TABLE OF CONTENTS

STATEMENT OF THE CASE .....---..-.<cceececocccoe-cccecccccceeecccceeeeeeee 1

Reasons ror Denyinc Cerriorani—The Supreme

Court of New Jersey decided the instant matter

fully in accord with well-settled principles estab-

lished by this Court; and, therefore, no reason

exists for a grant of certiorari -............. 4

ConcLusIoN 10

Cases Cited

Arrant v. Wainwright, 468 F.2d 677 (5th Cir. 1972) 9

Barker v. Wingo, 407 U. S. 514 (1972) 3-6, 7-9

Commonwealth v. Pearson, 450 Pa. 467, 308 A. 2¢

481 (1973) . 9

Davis v. Ward, 400 U. S. 1203 (1970) 10

Dillingham v. United States, 423 U. S. 64 (1975)........ 7,9

Klopfer v. North Carolina, 386 U. S. 213 (1967)........ 6

MelIntyre v. State, 17 Md. App. 526, 302 A. 2d 672

(Ct. Spee. App. 1973)

Moore v. Arizona, 414 U. 8. 25 (1973) 6, 9

Panama Canal v. Grace Lines, Inc., 353 U. 8. 368

(1957) 10

People v. Artonio, 42 A.D. 2d 716, 345 N.Y.S. 2d

670 (1973) ee

People v. White, 32 N.Y. 2d 343, 345 N.Y.S. 2d 513,

298 N.E. 2d 659 (1973) 9

ii TABLE OF CONTENTS

Smith v. Hooey 393 U. S. 374 (1969) 00.

State v. Lisk, 25 N.C. App. 659, 214 S.E. 2d 3f5 (Ct.

App. 1975) AE SERS eR

State v. Morris, 501 S.W. 2d 39 (Mo. Sup. Ct. 1973)

State v. Szima, 133 N. J. Super. 469, 337 A. 2d 393

SON Ci ailtiacitiniitiniitteiesce eee

Strunk v. United States, 412 U. S. 434 (1973)...

United States v. Fairchild, 526 F. 2d 185 (7th Cir.

1975), cert. den. —— U. S. ——, 96 S. Ct. 1682

(1976)

aaa ee TE Ee

EE ccnnemnessinianibiidiadindaie

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

United States v. Toy, 482 F. 2d 741 (D. C. Cir. 1973)

Statutes Cited

SF ee

N. J. Stat. Ann. §2A:121-3(a)

N. J. Stat. Amn. §2A :121-3(b) nce cceceeeeccceeeeneeee

N. J. Stat. Ann. §2A:121-3(¢) 00...

Rule Cited

New Jersey Court Rule 3:25-3

FE RRR RK Mee eee tee

bt rw tw bo

IN THE

Supreme Court of the United States

Ocroser Term, 1976

No. 76-207

—_—<@_—_——

JOSEPH G. SZIMA,

Petitioner,

vs.

STATE OF NEW JERSEY,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of New Jersey

—<>—

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Statement of the Case

In January 1972, the State conducted Court authorized

wiretaps of conversations between petitioner and other

persons. The conversations indicated that petitioner was

involved in illegal bookmaking and other gambling activi-

ties. Petitioner was arrested on February 4, 1972, after

a search executed pursuant to a warrant revealed that he

was also in possession of gambling paraphernalia at his

home.

Thereafter, on February 11, 1972, petitioner waived his

right to a preliminary hearing. On December 5, 1973, the

New Jersey State Grand Jury returned a four count in-

dictment charging petitioner with: (1) bookmaking, in

violation of N. J. Stat. Ann. §2A:112-3; (2) working for

an illegal lottery, in violation of N. J. Stat. Ann. §2A :121-

3(a); (3) possession of lottery paraphernalia, in violation

of N. J. Stat. Ann, §$2A:121-3(b); and (4) maintaining a

lottery on his premises, in violation of N. J. Stat. Ani.

§2A :121-3(c¢).

Petitioner moved for dismissal of the ~indictment on

April 19, 1974. At the hearing petitioner contended that

the time between arrest and indictment was sufficient to

trigger a speedy trial claim and that the indictment should

be dismissed since the State had failed to offer an ex-

planation for the 23-month period. Although petitioner

conceded that he had suffered no prejudice as a result of

the time period involved and, also, that he had made no

attempts to bring the matter to a speedy disposition, he,

nevertheless, contended that his rights under the Federal

Sixth Amendment had been infringed.

The State acknowledged the fact that it had no reasons

that would justify tne time lapse. The delay was the re-

sult of inadvertence on the part of State officials who were

responsible for presenting the matter to a grand jury.

The State conceded that although there was a huge back-

log of cases awaiting grand jury action, priorities based

upon the date of arrest should have been assigned. Never-

theless the prosecutor’s failure to establish such priorities

3

was not designed to impair the rights of the accused.

Further, the State argued that the time lapse did not rise

to the level of a speedy trial violation under the balancing

test enunciated in Barker v. Wingo, 407 U.S. 514 (1972).

Additionally, the State adduced facts demonstrating that

petitioner did not suffer any prejudice. The waiver of a

preliminary hearing and petitioner’s inaction regarding

his right to a speedy trial were indicia of his lack of

prejudice. The court then denied petitioner’s motion.

On June 24, 1974, petitioner was tried and convicted on

Counts I, II and IV. At trial, defense counsel conceded

that in effect, petitioner admitted his guilt on the

charges. He noted that he was proceeding with the for-

malities of trial solely to preserve his right to appeal. In

order to expedite matters, petitioner waived his right to

a jury and stipulated the admissibility and propriety of

the State’s evidence. That evidence consisted of tapes of

the wiretaps and the gambling paraphernalia. Suffice it

to say, the State’s proofs were overwhelming. As noted,

the court convicted petitioner of three counts and ac-

quitted him on one.

On July 26, 1974, the Honorable Thomas 8S. O’Brien,

J.S.C., sentenced petitioner to three concurrent terms of

from one year to fifteen months in New Jersey State

Prison. The court agreed with both parties that peti-

tioner should be treated as though he had pleaded guilty,

for sentencing purposes, since his pro forma trial trans-

pired solely to protect his speedy trial rights.

On April 22, 1975, the Superior Court of New Jersey,

Appellate Division reversed petitioner’s conviction, ruling

that his federal right to a speedy trial had been denied.

State v. Szima, 133 N.J. Super. 469, 337 A.2d 393 (App.

Div. 1975) (per curiam).

+

The Supreme Court of New Jersey then granted the

State’s petition for discretionary review. 68 N.J. 170, 343

A.2d 457. On May 17, 1976, the court reversed, reinstat-

ing the judgment of conviction. 70 N.J. 196, 358 A.2d 773.

The court essentially held that the Appellate Division

misapplied the test of Barker v. Wingo, supra.

Thereafter, petitioner received a stay of execution from

the New Jersey Supreme Court which expired on or about

August 11, 1976. Stays pending action on the instant peti-

tion were denied by Mr. Justice Brennan and Mr. Justice

Marshall.

REASONS FOR DENYING CERTIORARI

The Supreme Court of New Jersey decided the in-

stant matter fully in accord with well-settled princi-

ples established by this Court; and, therefore, no rea-

son exists for a grant of certiorari.

Petitioner’s sole claim is that the Supreme Court of

New Jersey incorrectly judged this case’s facts within the

framework of Barker vy. Wingo, supra. Briefly, Barker

rejected the concept that the federal right to a speedy

trial could be reduced to a per se formula. Four basic

criteria were posited instead. The length, reason for,

prejudicial effect of delay, and the defendant’s assertion

of his right to a speedy trial were said to create a frame-

work within which a balance must always be struck.

Barker v. Wingo, supra, 407 U.S. at 530-33. This Court

also noted that other circumstances might of need be part

of the equation. /d. at 533.1 Barker, though, did more

' This Court did not explain what those circumstances might be.

Conceded guilt, however, was accepted as one such circumstance by

a federal Court of Appeals. See United States v. Lockett, 526 F.2d

1110, 1111-12 (7th Cir. 1975). If conceded guilt is a relevant con-

sideration, then petitioner’s current claim is asserted from a posi-

tion of weakness; he has conceded his guilt throughout these pro-

ceedings.

9)

than merely establish the relevant analytical mode. In

discussing the various factors, this Court provided neces-

sary guidance for evaluation of speedy trial claims.

The length of delay, according to Barker, “is to some

extent a triggering mechanism.” Jd. at 530. The delay

must be “presumptively prejudicial”, else “there is no

necessity for inquiry into the other factors that go into

the balance.” Jd. Barker noted that the time lapse in

each case must be viewed in its own “peculiar circum-

stances.” Jd. at 530-31.

The reason for delay was the next factor noted. Barker

framed this as “the reason the government assigns to

justify the delay.” Jd. at 531. The Court delineated three

distinct categories of reason for delay. First, “[a] delib-

erate attempt to delay the trial in order to hamper the

defense should be weighted heavily against the govern-

ment.” Id. Accord, e.g., United States v. Marion, 404 U.S.

307, 325 (1971). However, the Court noted a second con-

sideration that, “[a] more neutral reason such as negli-

gence should be weighted less heavily but nevertheless

should be considered since the ultimate responsibility for

such circumstances must rest with the government rather

than the defendant.” 407 U.S. at 531. Last, a valid rea-

son for delay, such as unavailable witness, serves to jus-

tify appropriate delay. Id.

The third balancing criterion is whether or not a de-

fendant asserts his right. Even so, it must be remembered

that this Court declared unconstitutional demand-waiver

rules. Jd. at 528-A29. Thus, the failure to move for a

speedy trial is not dispositive by itself. Nonetheless, a

defendant’s assertion of right was said to be “closely re-

lated” to the other criteria. Jd. Specifically, the strength

of a defendant’s efforts to assert his right to a speedy

trial “will be affected by the length of the delay, to some

6

extent by the reason for the delay, and most particularly,

by the personal prejudice, which is not always readily

identifiable, that he experiences.” Jd. Realistically, “(t]he

more serious the deprivation, the more likely a defendant

is to complain.” Jd. at 531. For that reason, the fact of

the assertion vel non is important in determining the de-

privation of right. 7d. This Court felt compelled explicitly *

to “emphasize that failure to assert the right will make

it difficult for a defendant to prove that he was denied a

speedy trial.” Jd. at 531-32.

The fourth criterion isolated in Barker is prejudice to

the defendant. The Court identified three forms of preju-

dice to defendants which flow from delays in disposition

of pending charges. Pretrial incarceration, anxiety to

the accused and the impairment of the defense are all to

be evaluated in judging a speedy trial claim. Id. at 531-

32. See, e.g., Smith v. Hooey, 393 U.S. 374, 377-78

(1969); Klopfer v. North Carolina, 386 U.S. 213, 221-22

(1967). See also Moore vy. Arizona, 414 U.S. 25 (1973).

Of these, however, impairment of the defense was, obvi-

ously, the most serious “because the inability of a de-

fendant adequately to prepare his case skews the fairness

of the entire system.” Barker v. Wingo, supra, 407 U.S.

at 532.

In coneluding its analysis, this Court observed that it

considered “none of the four factors identified above as

either a necessary or suflicient condition to the findings

of a deprivation of the right of a speedy trial.” Jd. at

532. No single factor has “talismanic qualities”. Id.

Rather, “courts must still engage in a difficult and sensi-

tive balaneing process.” Jd. at 533.

It is, therefore, against the backdrop of the Barker v.

Wingo balance that the New Jersey Supreme Court’s de-

cision must be judged. The New Jersey court meticu-

lously examined petitioner’s claim with heavy reliance

on Barker. First, there has been no dispute that the

23-month delay between arrest and indictment of need

triggered Barker analysis; and, the court so held, relying

on Dillingham v. United States, 423 U.S. 64 (1975). State

v. Szima, supra, 70 N.J. at 202, 358 A.2d at 776.

As to the reason for delay, the court simply wrote that

“{ijt should not have happened.” Jd. at 358 A.2d at 777.

Respondent has never sought to excuse its delay and has

admitted that the delay .was the result of an inadvertent

oversight by members of the New Jersey Attorney Gen-

eral’s Office. The New Jersey Supreme Court, however,

did not chastise respondent for this oversight. By impli-

cation, then, the court correctly deemed this negligence to

be a “more neutral reason” within the Barker context.

As noted, the delay resulted from a huge backlog of com-

plex and important cases awaiting grand jury action and

a concomitant oversight in assignment of priorities to

those cases. In no way did respondent attempt purposely

to impair petitioner’s defense.

Likewise, the court found that petitioner had failed

to assert his rights. 70 N.J. at 202, 358 A.2d at 776.

Although petitioner contended, and the Appellate Division

agreed, that he could not have asked to be indicted, the

Supreme Court found that other viable mechanisms to

assert speedy trial rights were present in New Jersey

procedures. Compare 70 N.J. at 202, 358 A.2d at 776,

with 133 N.J. Super. at 473, 337 A.2d at 395. Specifically,

the supreme court found that petitioner could have utilized

New Jersey Court Rule 3:25-3 to move for dismissal of

the complaint. /d. The court, therefore, held that peti-

tioner could have asserted his right to a speedy trial by

moving for dismissal but did not. Id.

Finally, and of utmost importance, the court found that

petitioner was in no way prejudiced by the delay. He

8

“was not subjected to lengthy pretrial incarceration.”

70 N.J. at 202, 358 A.2d at 776. In fact, petitioner was

never incarcerated until post-decision stays granted by

the New Jersey Supreme Court expired. Also, petitioner

“claim[ed] no impairment of his ability to defend.” Id.

at 202, 358 A.2d at 777. In fact, the sole intimation of

prejudice here is petitioner’s contention that the New

Jersey court “completely failed to take into consideration

the inherent prejudice an accused encounters.” (Pb11).

Additionally, he cites language from one of the dissents

below which notes petitioner’s personal situation and then

uncritically assumes that his “vulnerability to prejudice

is apparent.” (Pb12). Nevertheless, petitioner has never

demonstrated that he has, in any way, been prejudiced,

nor do any indications of anxiety, or even concern, mani-

fest themselves in the record.

From the foregoing, it is eminently clear that the Su-

preme Court of New Jersey did nothing improper in

weighing each of the Barker v. Wingo factors. To the

contrary, the court balanced all the relevant criteria to

rectify the disequilibrium created by the intermediate ap-

pellate tribunal. All that petitioner contends is that the

Court established a demand waiver rule and failed to

account properly “inherent prejudice to an accused.” Yet,

respondent’s exposition of the decision demonstrates that

the court did not establish such a rule but engaged in the

sensitive balancing demanded by Barker.

Further, where a lengthy delay is caused by prosecu-

tional inadvertence, but where a defendant fails to assert

his rights and suffers no prejudice, courts generally have

held that no speedy trial violation has occurred under

Barker v. Wingo, E.g., United States v. Lockett, 526 F.2d

1110, 1111-12 (7th Cir. 1975); United States vy. Fairchild,

526 F.2d 185, 187 (7th Cir. 1975), cert. den. US.

, 96 S. Ct. 1682 (1976) (20-month delay between arrest

9

and indictment) ; United States v. Toy, 482 F.2d 741 (D.C.

Cir. 1973); Arrant v. Wainwright, 468 F.2d 677 (5th Cir.

1972); McIntyre v. State, 17 Md. App. 526, 302 A.2d 672

(Ct. Spee. App. 1973); State v. Morris, 501 S.W.2d 39

(Mo. Sup. Ct. 1973); People v. Artonio, 42 A.D.2d 716,

345 N.Y.S.2d 670 (1973); State v. Lisk, 25 N.C. App. 659,

214 S.E.2d 315 (Ct. App. 1975); Commonwealth v. Pear-

son, 450 Pa. 467, 303 A.2d 481 (1973). But see People v.

White, 32 N.Y.2d 343, 345 N.Y.S.2d 513, 298 N.E.2d 659

(1973) (52-month delay too long). Consequently, the Su-

preme Court of New Jersey merely joined a consensus

when it decided the instant case.”

Moreover, it is evident that petitioner’s position, if

advanced to its logical conclusion, would establish a per se

dismissal rule where delay has been caused by prosecu-

torial negligence or inadvertence. Such would be totally

contrary to this Court’s directions in Barker v. Wingo.

A grant of certiorari and subsequent decision could only

serve to disorder settled legal principles which have re-

cently been reaffirmed. See, e.g., Dillingham v. United

States, swpra; Moore v. Arizona, 414 U.S. 25 (1973);

Strunk v. United States, 412 U.S. 434 (1973).

In view of the foregoing, respondent submits that cer-

tiorart should not be granted. Petitioner has failed to

demonstrate any constitutional infirmity in the opinion of

the Supreme Court of New Jersey which requires review

2 Respondent assumes arguendo that by “inherent prejudice” pe-

titioner would engage this Court’s statement that “even if an accused

is not incarcerated prior to trial, he is still disadvantaged by restraints

on his liberty and by living under a cloud of anxiety suspicion and

often hostility.” Barker v. Wingo, supra, 407 U.S. at 533. Peti-

tioner has failed to disclose whether or not he experienced such “in-

herent prejudice”; and if he did, his failure to mention it must

evidence its minimal effect on his life..

10

in the interest of justice. Likewise, petition has failed to

present any substantial federal question. Therefore, there

is no merit to petitioner’s request for review. See, e.g.,

Davis v. Ward, 400 U.S. 1203 (1970); Panama Canal v.

Grace Lines, Inc., 353 U.S. 368 (1957).

CONCLUSION

For the reasons herein, it is respectfully urged that

the Writ of Certiorari should be denied.

Respectfully submitted,

WiiuuMm F. Hytanp

Attorney General of New Jersey

Attorney for Respondent

State House Annex

Trenton, New Jersey 08625

Davi S. Barme

Deputy Attorney General

Division of Criminal Justice

Of Counsel

DanteEL Louis GrossMAN

Deputy Attorney General

Division of Criminal Justice

On the Brief.