Petition — Maryland v. Jones
Supreme Court brief1977
Ask Donna
What actually matters in this document.
Text
— ————=——e a wo
il te
Lf
Supreme Court, U. S,
mm FILE D
.. MAR 14 1977
MICHAEL RODAK, JR., CLERK
IN THE
Supreme Court of the United States
OcTOBER TERM, 1976
No. 76-
STATE OF MARYLAND,
Petitioner,
Vv.
JOHN EDWARD JONES,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF MARYLAND
FrRANCis B. BuRCH,
Attorney General
of Maryland,
GeEorGE A. NILSON,
Deputy Attorney General
of Maryland,
CLARENCE W. SHARP,
Assistant Attorney General
of Maryland,
Chief, Criminal Division,
F. Forp LOKER,
Assistant Attorney General
of Maryland,
One South Calvert Building,
Baltimore, Maryland 21202,
383-3737,
Attorneys for Petitioner.
EE
The Daily Record Co., Baltimore, Md. 21202 >
TABLE OF CONTENTS
PAGE
IY MICE siiscnsniennticesnniscnnintedinntisititecseatnpaniioncns 1
III Nabinrtcsientitcnnsnsntcmnsnindssscsinansetonteieicitenimenens 1
eS ee 2
CONSTITUTIONAL PROVISIONS INVOLVED .............- 2
STATEMENT OF THE CASE ...........cccsscssscsssssseessenseess 2
REASONS FOR GRANTING THE WRIT ...............00000: 14
The Court of Appeals of Maryland erred
in reversing Respondent’s conviction for
an alleged violation of his Sixth Amend-
ment right to a speedy trial because its
decision was not in accord with the
applicable decisions of the Supreme
Court of the United States.
IED siiciticcciscincinceinitiddmasitdtiabiiidnamstibtibiidaianddamstadiiie 27
APPENDICES:
A. Opinion & judgment of the Court of
Appeals of Maryland .................ccccc0cee000s la
B. Opinion & judgment of the Court of
Special Appeals of Maryland ................ 22a
C. Summary of the chronology of the case 78a
TABLE OF CITATIONS
Cases
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33
OSL passim
Epps v. State, 276 Md. 96, 345 A2d 62 (1975) .. 15
Evans v. State, 30 Md. Ave. 423, 352 A.2d 343
ere ea 15
.
PAGE
Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed.
a 26
Jones v. State, 279 Md. 1, 367 A. 2d 1 (1976) ..passim
Jones v. State, 29 Md. App. 182, 348 A.2d 55
(1975), rev’d 367 A.2d 1 (1976) ........ccccccceeeeee passim
Klopfer v. North Carolina, 386 U.S. 213, 87S. Ct.
BF 14
Lee v. State, 32 Md. App. 671, 363 A.2d 542 (1976,
Md. cert. deried 12-6-76) ............ccccecscceesseeeeseees 27
Moore v. Arizona, 414 U.S. 25, 94S. Ct. 188, 38 L.
Df ERE Crore 22
Pollard v. U.S., 352 U.S. 354, 77 S. Ct. 481 (1957) 17
Pyle v. State, 34 Md. App. 60, 366 A.2d 90 (1976) 27
Smith v. State, 276 Md. 521, 350 A.2d 628 (1976) 15, 26
State v. Beers, 21 Md. App. 39, 318 A.2d 825
eI I TERS LE a Ce ee 10
State v. Wilson, _.. Md. App. __., _.. A.2d __
(No. 1366, Sept. Term, 1975, filed 3-8-77) ..... 27
Strunk v. U.S., 412 U.S. 434, 93 S. Ct. 2260, 37 L.
EERE Carrere me 17, 22, 24
U.S. v. Ewell, 383 U.S. 116, 86 S. Ct. 773, 15 L.
8 ENCE 14, 15, 17, 25
Constitutional Provisions, Statutes & Rules
Constitution of the United States:
Fourteenth Amendment ............................. 2,14
Constitution of Maryland:
Article 21 (Md. Ann. Code, Vol. 9A, 1957
&§-_ & Fa 26
Statutes
i UU 2
us
Rules
PAGE
Maryland Rules of Procedure (1957, Repl. Vol.
1971):
LF een 6, 20
Miscellaneous
ABA, Minimum Standards Relating to Speedy
Trial, § 2.3(b) (Approved Draft, 1968) ........... 17
Black’s Law Dictionary (Revised 4th Ed., 1968) 17
In THE
Supreme Court of the United States
OcToBER TERM, 1976
No.
STATE OF MARYLAND,
Petitioner,
Vv.
JOHN EDWARD JONES,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF MARYLAND
Petitioner, the State of Maryland, prays that a writ of
certiorari be issued to review the judgment of the Court
of Appeals of Maryland entered in the above-entitled
case (No. 3, Sept. Term, 1976, Court of Appeals of
Maryland) on December 14, 1976.
OPINIONS BELOW
The opinion of the Court of Appeals of Maryland,
reported at 279 Md. 1, 367 A.2d 1 (1976), is included as
Appendix A. of this Petition. The opinion of the Court
of Special Appeals of Maryland, reported at 29 Md.
App. 182, 348 A.2d 55 (1975), is included as Appendix B.
JURISDICTION
The judgment of the Court of Appeals of Maryland
sought to be reviewed was filed on December 16, 1976.
2
This Petition is filed within 90 days of that date. The
jurisdiction of this Court is invoked under 28 U.S.C.,
§1257 (3).
QUESTION PRESENTED
Did the Court of Appeals of Maryland erroneously
reverse the conviction of Respondent for an alleged
violation of Respondent’s right to a speedy trial under
- — Amendment of the Constitution of the United
CONSTITUTIONAL PROVISIONS
The Sixth Amendment of the Constitution of the
United States provides in pertinent part:
“In all criminal prosecutions, the accused shail enjoy
the right to a speedy and public trial by an impartial
jury of the state and district wherein the crime shall
have been committed. .. .”
The Fourteenth Amendment of the Constitution
provides in pertinent part:
“SECTION 1... . [NJor shall any state deprive
any person of the life, liberty or property without
due process of law... .”
STATEMENT OF THE CASE
Petitioner first gives a broad overview of the judicial
proceedings relative to the instant case and afterwards
provides a more detailed description of the chronology
of events, taken essentially from Respondent’s brief to
the Court of Appeals of Maryland.
A. Respondent, John Edward Jones, also known as
“Liddy” Jones, was arrested in Baltimore County on
July 12, 1972. He was subsequently indicted by the
Grand Jury for Baltimore County (Indictment No.
3
44607), on July 27, 1972, in a multi-count indictment
charging violations of Maryland’s Controlled Danger-
ous Substance Statute. Respondent was reindicted for
the same offenses on April 29, 1974, (Indictment No.
48721), because of a technical flaw in the wording of the
original charging document. On May 15, 1974, Respond-
ent, on his motion, was granted a severance from the
case against himself and several co-defendants. The
trial of Jones’ co-defendant took place on June 7, 1974.
Thereafter, he was brought to trial on December 4, 1974,
in the Circuit Court for Baltimore County before a
sworn jury, the Honorable Kenneth C. Proctor, presid-
ing. On December 5, 1974, however, Judge Proctor
granted Respondent’s motions for a mistrial and a
change of venue and ordered that the case be removed
to another county. On December 11, 1974, Respondent
received a jury trial in the Circuit Court for Calvert
County, the Honorable Perry G. Bowen, Jr., presiding.
A preliminary motion to dismiss the indictment for
denial of the right to a speedy trial was argued by
Respondent and denied by Judge Bowen. The trial
concluded on December 13, 1974, at which time the jury
returned guilty verdicts on the charges of possession of
heroin with intent to distribute, possession of heroin,
and two counts of possession of controlled parapherna-
lia. Judge Bowen then sentenced Respondent to a total
of twenty years imprisonment in the custody of the
Commissioner of Correction, and ordered that the
sentence was to commence at the completion of a thirty
year sentence Respondent was then serving in federal
prison for unrelated narcotic laws violations. Thereaf-
ter, Respondent appealed to the Court of Special
Appeals of Maryland alleging, inter alia, error from the
denial of the motion to dismiss for denial of the right to
a speedy trial. The conviction was affirmed, in Jones v.
State, 29 Md. App. 182, 348 A.2d 55 (1975) (Davidson, J.
dissenting). Respondent sought a Writ of Certiorari in
the Court of Appeals of Maryland. The Court of
4
_ Appeals granted the Petition on March 4, 1976, limiting
review to the speedy trial issue and one other issue not
presently pertinent. On December 16, 1976, the Court of
Appeals of Maryland (Murphy, C. J. and Smith, J.
Dissenting) reversed the convictions of Respondent
with instructions to the lower court to dismiss the
indictment. Jones v. State, 279 Md. 1, 367 A.2d 1 (1976).
Petitioner seasonably seeks a Writ of Certiorari from
the Supreme Court of the United States.
B. A more detailed review of the record reveals the
following chronology of events between July 12, 1972,
rend date of arrest and December 11, 1974, the date of
John Edward Jones, a/k/a “Liddy” Jones, Respond-
ent, was arrested on July 12, 1972. On July 13, 1972,
Respondent escaped from the Baltimore County jail;
Respondent surrendered himself in a matter of days
upon the advice of Attorney F. Lee Bailey of Boston,
Massachusetts. He was subsequently indicted by a
Baltimore County Grand Jury on July 27, 1972, in a
multi-count indictment (No. 44607) charging violations
of Maryland controlled dangerous substances laws and
conspiracy to violate same on July 11, 12, 1972, in
Baltimore County. He also was indicted (No. 44609) on
escape charges.
On August 21, 1972, Stephen L. Miles, a Baltimore
attorney, entered his appearance for the Respondent
(Extract, hereinafter cited as E. at 1). On October
13, 1972, the appearance of F. Lee Bailey and his
associate, Gerald Alch, as well as that of Gerald Kroop
another Baltimore attorney, were also filed (E. at 2).
After a hearing on October 12, 1972, before Judge
Proctor of the Circuit Court of Baltimore County,
5
Maryland at which Miles asked for four to six weeks for
the filing of pretrial motions in the narcotics case
(October 12, 1972 transcript at 10-11), that court ordered
all pretrial motions in the narcotics case to be filed by
November 17, 1972, and for the trial to commence no
later than December 15, 1972 (E. at 6).
The State asserted its election at the October 12, 1972
hearing to try the escape charge first (T. at 10, 11), and
a trial date of November 29, 1972 was set for said trial.
This decision was objected to by Respondent’s counsel
in a letter from Alch, dated October 17, 1972, which
claimed that trial of the escape charge prior to the
narcotics case “would illegally prejudice the defend-
ant,” and asked that the narcotics charge be tried first.
In that same letter, Alch also asked for a two week
extension for the filing of pretrial motions in both cases
(E. at 3-5). Samuel Green, then the State’s Attorney for
Baltimore County, informed Alch in a letter dated
October 5, 1972, that the narcotics charge would not be
tried first because “[tJhe State elects to proceed with the
escape case first” (E. at 8). The State did agree,
however, to a two week extension to the filing of
motions in the narcotics case (E. at 7), and an order
extending the time to December 3, 1972 was filed on
November 6, 1972 (E. at 9).
In November, 1972, the Respondent, through attorney
Miles, filed several pretrial motions including a motion
to try the narcotics case first, said motions being
answered by the State on November 14, 1972 (E. at 10-
11). November 21, 1972, was the date set for a hearing
on the motions on the escape case (E. at 12).
On November 27, 1972, the Respondent and the State
entered into an agreement in which the Respondent
agreed to the trial of the escape case on or about
January 8, 1973, which would precede the trial of the
6
narcotics case, said agreement being filed on N ber
30, 1972 (E. at 13-16).
The Respondent filed a motion for a speedy trial on
January 2, 1973 (E. at 19), Respondent maintaining at
trial that the demand had been previously made as
early as October of 1972 (E. at 174). On January 11,
1973, the Respondent entered a plea of guilty to the
escape charge, and was sentenced to a term of 13
months imprisonment. A plea bargaining agreem
was filed at this time. si :
On January 15, 1973, William Murphy, a third
attorney from Baltimore City, entered his appearance
on behalf of the Respondent in the narcotics case (E.
23). Mr. Miles subsequently petitioned to strike his
appearance (E. at 26-27), said petition being allowed,
pursuant to the Maryland Rules of Procedure, Rule
pe by order of Judge Proctor on January 22, 1973 (E
at 28). :
Attorney Robert Frank, the fourth local attorney,
whose appearance was not entered on behalf of the
Respondent until June 7, 1973 (E. at 38), was tried on
January 29, 1973 for attempting to bribe a member of
the Baltimore County State’s Attorney’s Office with
respect to the handling of Jones’ charges. See Jones v.
State, supra, 348 A.2d at 76.
Respondent was scheduled to surrender himself on
February 20, 1973 to the Sheriff of Baltimore County to
begin serving a 13 month sentence arising from his
escape conviction.
In the beginning of March, Respondent’s attorneys
were informed by the State’s Attorney’s Office that
several pretrial motions were still pending in the
narcotics case including a motion to suppress (E. 33).
7
The parties agreed to a March 30th date for a hearing
on the motion to suppress (E. at 35), said hearing taking
place as scheduled. The Court ruled on the motion on
April 9, 1973. In a letter dated April 5, 1973, the State’s
Attorney was informed that because of Bailey’s other
trial commitments, the defense demand for a speedy
trial was retracted until there was notification to the
contrary (E. at 36).
On May 3, 1973, the Respondent was indicted on
federal indictments charging him with unrelated
narcotics violations. A hearing was held before Judge
Proctor on May 25, 1973, to find out who actually
represented the Respondent (E. at 123). The Respondent
claimed that only Stephen Miles represented him,
despite the striking of Miles’ appearance in January.
(Id.) The Respondent further indicated that he had
discharged Bailey and Alch, but their appearances were
never stricken (E. at 124); and that he did not wish
Murphy or Kroop to represent him (E. at 123; 124-125).
The appearances of Murphy and Kroup were stricken
(E. at 127-128). The Respondent had made it clear that
his selection of counsel was based upon his determina-
tion to avoid further delay in the start of his narcotics
trial. (See Jones v. State, supra, 348 A.2d at 71). The
Court set a trial date for June 25, 1973 (E. at 37, 128;
131-132).
The Court was notified at this hearing that a co-
defendant and prospective defense witness, Kevin
Darby, had been killed (E. at 126, 178). In 1973, another
anticipated defense witness, Joseph Perry, was -killed
(E. at 183-184).
On June 18, 1973, 46 days after the federal indictment
was returned, the federal trial began, and lasted until
July 21, 1973, when the Respondent was convicted and
sentenced to a term of 30 years.
iia
8
On August 22, 1973, the Maryland Attorney General’s
Office informed the Baltimore County State’s Attor-
ney’s Office that the Respondent’s trial would not
interfere with the ongoing investigation of the Balti-
more County Office that had been ordered by Mary-
land’s Governor Marvin Mandel on November 11, 1972
because of allegations of corruption in connection with
the Respondent’s cases (E. at 40). Subsequently, Sam
Green, State’s Attorney for Baltimore County, was
indicted on October 25, 1973, and the trial of a co-
defendant of Green’s and employee in his office, Louis
Irvin, commenced on October 31, 1973. Green’s trial
began on January 1, 1974, and ended in conviction on
February 6, 1974. See Jones v. State, supra, 348 A.2d at
77.
On September 6, 1973, Miles struck his appearance.
Jones v. State, supra, 348 A.2d at 60. Another motion
for a speedy trial was filed by Robert Frank on
November 14, 1973 (E. at 41). On December 26, 1974,
Frank and State’s Attorney C. A. Ruppersberger agreed
to a trial date of February 26, 1974, for the narcotics
case (F. at 42). Frank, however, reasserted the demand
for a speedy trial and indicated that while February 26
was acceptable, an earlier date would be preferred (E. at
43). Deputy State’s Attorney for Baltimore County,
Benjamin Bronstein, wrote to Frank on January 9,
1974, stating, among other things, that if an earlier
trial date was desired, Frank should make that request
to the Court. He further stated that the February 26
date was advisable in order to prevent the Respondent’s |
case from interfering with Frank’s own disbarment
proceedings arising from his admitted attempted
bribery of a member of the Baltimore County State’s
Attorney’s Office scheduled to be heard on February 18
(E. at 44-45). Frank responded to the above-described
letter on January 10th, reminding Bronstein that a
motion for a speedy trial was filed and that it was the
9
burden of the State to bring the case to trial. Frank
further indicated that Bronstein should not be con-
cerned with the possible interference with his [Frank’s]
disbarment proceedings (E. at 46-47).
On February 8, 1974, Judge Proctor wrote to the
State’s Attorney’s Office to inform them that the
Respondent’s case had to be removed from trial
assignment on February 26, due to che unavailability of
judges as a result of the ongoing investigation of the
State’s Attorney’s Office. The Judge indicated that the
Respondent’s case would have to be “rescheduled for
sometime during the April Term of Court” (E. at 48).
Bronstein in the meantime had asked Frank on
February 7 if he would agree to a postponement of the
Respondent’s case, to which Frank responded that no
delay would be tolerated (E. at 49).
On February 27, 1974, the Court (Turnbull, J.)
assigned the date of March 11, 1974, for arraignment in
the instant case and for the purpose of the setting of “a
firm trial date” (E. at 51-52). A writ was issued to secure
the attendance of the Respondent at said arraignment
(E. at 53). Frank notified the State’s Attorney’s Office
on March 1, that he would be unable to be present on
March 11, and attempted to waive the Respondent's
right to be present, asserting that “I have been pressing
for a trial date in this case for some time and would
appreciate it if I would be notified as soon as one is set
(E. at 54).
The date for arraignment and the setting of a firm
trial date was reset for March 26 (E. at 57-58), and
another writ for the Respondent was issued (E. at 59).
Subsequently, the date was again changed and set for
April 22 (E. at 60-61). Finally, in a letter dated April 24,
1974, Respondent’s counsel were notified that an
——
10
arraignment date of April 29 had been established; that
May 1 was the deadline for the filing of all pretrial
motions; that on May 15, said motions would be heard;
and that a trial date of June 3, 1974 had been set.
Further, pursuant to the decision in State v. Beers, 21
Md. App. 39, 318 A.2d 825 (1974), the indictment
against the Respondent was deemed to be partially
defective, and, therefore, a reindictment by the Grand
Jury was also scheduled for April 29 (E. at 63). The
Respondent was subsequently reindicted.
The Respondent filed a motion for severance from co-
defendants Pinkett and Strickland, the severance being
granted at the hearing held on May 15, 1974 (E. at 111).
Ruling was reserved, however, on a motion filed by the
Respondent to dismiss for lack of a speedy trial (E. at
67, 111). At this hearing a June 4 trial date was
established (E. at 69).
The Respondent having been severed from his co-
defendants, the State elected to proceed first against the
co-defendants (E. at 71). The trial of the co-defendants
began on June 7. After a hearing on May 29,
Respondent’s motion to dismiss for lack of a speedy
trial was denied. State v. Jones, supra, 348 A.2d at 73.
In June of 1974, Frank was indicted for perjury, and
his appearance on behalf of the Respondent was
stricken on June 19 (E. at 76). In a letter from the
State’s Attorney’s Office, dated June 13, 1974, Bailey
was informed that the Respondent still insisted that
Bailey was his counsel (E. at 74). Since the May 25,
1973 hearing where the Respondent stated he no longer
wanted Bailey to represent him, Bailey’s office had had
no active participation in the instant case although the
appearance of the attorneys as defense counsel had
never been stricken. Bailey’s office was subsequently
informed that a hearing would be held on June 26, 1974,
11
at which time it was expected that Alch would enter
Bailey’s appearance (despite the fact that said appear-
ance had never been stricken) (E. at 78).
At the hearing on June 26, William Carrier, a fifth
Baltimore City attorney, entered his appearance as
local counsel (E. at 115). Judge Turnbull received a
telegram from Alch stating that because of illness he
could not be present at the hearing, that he was
authorized to enter Bailey’s appearance, and that the
Respondent had again agreed to waive his right to a
speedy trial until the requested trial date of November
18, 1974 (E. at 79). During the hearing the Respondent
agreed to a delay until November 18, in order that he
might have Bailey represent him. (June 26, 1974
transcript, at 9).
On October 7, 1974, Bailey was notified that the date
of November 18 had been confirmed for trial (E. at 80).
Bailey acknowledged on October 14, that he had been
again retained by the Respondent, and that because of
other trial commitments, he would be unavailable on
November 18. Noting the Respondent’s constant objec-
tion to delay in the trial, Bailey requested that the trial
be postponed about two weeks, if the Respondent would
consent (E. at 81-82). Judge Proctor informed Bailey on
October 25 that no further delay in the trial would be
permitted since the Respondent “has been pressing for
speedy trial for sometime .. .,” unless the Court
received the written consent of the Respondent (E. at
84). In a letter dated October 31, the Respondent
expressed to Bailey his dissatisfaction with any
postponement (E. at 85), Bailey responding that,
pursuant to the order of Judge Proctor, the Respondent
would have to proceed with other counsel unless he filed
a written consent to a delay in his trial until Bailey
could finish a trial already scheduled in Michigan (E. at
12
86). The Respondent specifically objected to a change in
the November 18 trial date in letters sent to Judges
Proctor and Turnbull, and States’s Attorneys Bronstein
and Brannan, dated November 11 and 12 (E. at 88, 89,
90, 91). The Court indicated that these letters were not
received by November 18 (E. at 100), and the court
agreed to a postponement until December 2, 1974, for
the start of the Respondent’s trial, and so notified
Bailey and the Respondent (E. at 95, 99-100).
On November 21, 1974, the Respondent, pro se, filed a
renewal motion for a speedy trial (E. at 98). The trial,
now scheduled to begin December 2, did not commence
until December 4. On December 4, the Respondent was
represented by Bailey and Carrier, and after a hearing
on a defense motion for a change of venue, the Court
ordered the case removed to the Circuit Court for
Calvert County (E. at 102, 117).
On December 11, 1974, the trial began in Calvert
County (E. at 118). On the next day, Judge Perry A.
Bowen heard arguments on Respondent’s motion to
dismiss for a lack of a speedy trial (E. at 172-199). In
ae Respondent’s motion to dismiss, Judge Bowen
stated:
The Court:
“Well gentlemen, I am bound to say that this
motion gives the court a little bit of trouble. No
person or court that I know of is more firmly
committed to giving defendants a trial as promptly
as they want it, on occasions aps more
promptly than they want it, than this court. And
we ey that A right of LJ. person — genuinely
wants a prom is 80 i t ought to be
carefully protected. -
“We have read the correspondence submitted, as
well as the docket entries pertaining to this, and
listen carefully to the proffers of what missing
witnesses would testify to and we conclude as a
13
fact that the delay in this trial was [not] a
contrivance of the te to postpone the trial nor
was it brought about by any lack of diligence on
the part of the various prosecuting authorities to
ea dispose of the accusations against Jones.
t seems to me that the docket entries and the
correspondence reflect that several times this
matter was set for disposition but that the
defendant while asserting that he wanted to
promptly go ahead with it wasn’t ready for one
reason or another to go ahead at that time.
“Now, when you consider the fact that this
defendant was involved in a series of matters
which required some attention and preparation in
the inevitable time lag in the e ent of those
matters for disposition in courts t have heavy
dockets, a substantial amount of time elapses no
matter how carefully you try to avoid it.
“IT am inclined to think this is a close case, but on
balance, I believe that the State has a right to go
forward with this case and that the delay is not of
such magnitude or the difficulties which it poses to
the defense, which are sufficiently and clearly
documented, to justify a dismissal of the charges in
this case on the basis offered here.
“For these reasons gentlemen, based upon the
information available to the court at this time, the
motion to dismiss these indictments for the lack or
ry Ad speedy trial, both grounds, is denied.” (E.
1 '
During trial, the Respondent repeatedly disrupted the
proceedings, asserting that he was not ready for trial
and that his counsel was not handling the case in the
manner in which he [Jones] wished (E. at 147-166). On
December 13, 1974, the third day of the jury trial,
Respondent was found guilty of various narcotic
violations and sentenced to a term of 20 years
imprisonment consecutive to the 30 year sentence
Respondent had received in the federal trial of June-
July, 1973.
14
A summary of the above chronology of events is
collected in Appendix C.
REASONS FOR GRANTING THE WRIT
THE COURT OF APPEALS OF MARYLAND ERRED IN RE-
VERSING RESPONDENT’S CONVICTION FOR AN ALLEGED
VIOLATION OF SIXTH AMENDMENT RIGHT TO A SPEEDY
TRIAL BECAUSE ITS DECISION WAS NOT IN ACCORD WITH
THE APPLICABLE DECISIONS OF THE SUPREME COURT OF
THE UNITED STATES.
While the body of law interpreting the right to speedy
trial in criminal causes guaranteed by the Sixth
Amendment to the United States Constitution is not
overwhelming in terms of the number of decisions, this
Honorable Court has clearly and recently expounded its
views on this substantial federal question.
The Sixth Amendment right to speedy trial is
applicable to the State of Maryland through the
Fourteenth Amendment. Klopfer v. North Carolina, 386
U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967).
In 1972, this Honorable Court enunciated the stand-
ards to be applied in all of the various courts in the
United States in determining whether there has been a
violation of an accused’s right to speedy trial. The case
of Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182,
2192, 33 L. Ed. 2d 101 (1972), where a five year delay
from the date of arrest to date of trial did not offend the
Sixth Amendment right of speedy trial under the
particular facts of the case, held:
“The approach we t is a balancing test in
which the conduct of both the prosecution and the
defendant are weighed. ... A balan test
necessarily com is courts to approach speedy tial
cases on an hoc basis. We can do little more
than identify some of the factors which courts
should assess in determining whether a particular
15
defendant has been deprived of his right. Though
some might express them in different ways, we
identify four such factors: len of delay, the
reason for the delay, the defendant’s assertion of
his his right, and prejudice to the defendant.” (Id.)
The Court of Appeals of Maryland acknowledged this
four-pronged balancing test in its opinion in the instant
case. Jones v. State, 279 Md. 1, 367 A.2d 1, 5 (1976).
Petitioner accepts the findings of fact of the Court of
Appeals of Maryland but strenuously excepts to the
conclusions it reaches as a matter of law based upon
those facts. The appellate courts of Maryland have
relied upon their interpretations of Barker v. Wingo,
supra, as the major, virtually exclusive, authority of the
issue of the Sixth Amendment right to a speedy trial.
See, e.g., Epps v. State, 276 Md. 96, 345 A.2d 62 (1975);
Evans v. State, 30 Md. App. 423, 352 A.2d 343 (1976).
LENGTH OF DELAY
Petitioner concedes for the purposes of this Petition
that the two year and five month period separating
Respondent’s arrest and trial, while by no means
extraordinary given the peculiar and complicated
circumstances surrounding the case, does “trigger” the
inquiry into the other factors enumerated above. U.S. v.
Ewell, 383 U.S. 116, 86 S. Ct. 773, 15 L. Ed. 2d 627
(1966); Smith v. State, 276 Md. 521, 528, 350 A.2d 628,
633 (1976). It can be truly said that the unprecedented
publicity and attention generated by Respondent’s
trials and the inextricably intertwined spin-off investi-
gations and prosecutions of some of the prosecutors and
defense counsel involved in this case has never been
paralleled in Maryland judicial history. It is the
seemingly ordinary analysis of the extraordinary
events of the instant case which prompts this Petition
for a Writ of Certiorari.
16
REASONS FOR THE DELAY
The Court of Appeals of Maryland concluded as a
matter of fact, that the 29 month period in the case at
bar should be divided into three segments:
“(1) from July 12, 1972, the date of Jones’ arrest,
to July 21, 1973, the end of his trial in federal court
on narcotics charges
(2) from July 21, 1973, to June 26, 1974, the day
Jones waived his right to a speedy trial so that
attorney Bailey could represent him; and
(3) from June 26, 1974, to December 11, 1974, the
date on which Jones’ trial finally commenced.”
Jones v. State, supra, 367 A.2d at 6.
The delay of the first period of approximately twelve
months and the third period of some six months was
found by the Court not to be attributable to the State.
That eighteen months of delay was due to the
Respondent’s actions. According to the Court of
Appeals, only the middle period of eleven months was
attributable “substantially, if not entirely to the State’s
dilatoriness.” Jones v. State, supra.
In Barker v. Wingo, supra, 407 U.S. at 531; 92 S. Ct. at
2192, criteria were established for gauging the weight to
be assigned to the various reasons which a state relies
upon to justify the delay in bringing an accused to trial:
“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 or overcrowded courts should be
weighed less heavily but nevertheless should be
considered since the ultimate responsibility for
such circumstances must rest with the government
rather than with the defendant. Finally valid
reason, such as a missing witness, should serve to
justify appropriate delay.”
17
The Court of Appeals of Maryland held that the
eleven month period following Jones’ conviction in
federal court was due to “dilatoriness” on the part of
the State. At the outset, the word dilatory as a legal
term is defined as “tending or intended to cause delay
or to gain time or to put off a decision.” Black’s Law
Dictionary (Revised 4th Ed. 1968). Thus, such a delay
would constitute a deliberate attempt to hamper the
defense.
From a review of the nearly constant chain of events
between Respondent’s arrest and trial, it is clear that
the State did not engage in a “purposeful or oppressive”
attempt to delay the case. Pollard v. U.S., 352 U.S. 354,
361, 77 S. Ct. 481, 486 (1957). The Court of Appeals of
Maryland has applied excessive “weight” in the
balancing test to the period of delay attributable to the
State, since it equates the delay with an intentional
manouevre to put off a decision on the case. It has
failed to recognize that the essential ingredient of the
constitutional right to a speedy trial is “orderly
expedition not mere speed.” U.S. v. Ewell, supra, 383
U.S. at 120.
Petitioner submits that, at the very worst, the eleven
month delay was attributable to the more neutral
reasons of negligence or overcrowded court calendars.
Strunk v. U.S., 412 U.S. 434, 436, 93 S. Ct. 2260, 2262, 37
L. Ed. 2d 56 (1973). The State maintains that during the
eleven months in question it was continuously engaged
in dealing with the Respondent’s numerous counsel and
in trying several of the prosecutors and defense
attorneys for their alleged offenses. The State should
not be held responsible for the delay resulting from a
congested trial docket attributable to exceptional
circumstances. ABA, Speedy Trial § 2.3(b) (Approved
Draft 1968). If, as the Court of Appeals concluded, it
18
was possible to use the extraordinary procedures of
appointing a substitute prosecutor and judge to handle
the Jones trial, the State’s failure to do so was based on
the good faith motive of conducting Respondent’s trial
in an atmosphere untainted by concomitant trials of the
principals of his prosecuting or defending teams. If it
was negligent to delay the trial, it was certainly not
deliberate or malicious, nor was it calculated to hamper
the Respondent’s defense.
Therefore, it is clear that the Court of Appeals applied
as a matter of law too much weight to the eleven month
delay attributable to the State, while totally failing to
counterbalance the deliberate delays of twelve and six
months by Jones. That constitutes an important and
damaging misapplication of the law declared in the
decisions of this Honorable Court and most severely
injured the citizens of the State of Maryland in their
effort to bring a major crime figure to justice.
This Honorable Court explained in Barker v. Wingo,
supra, that some reasons, such as a missing witness,
will validly excuse a period of delay, and not affect the
balance in any manner. The Petitioner asserts that the
State’s efforts to try the prosecutors and defense
attorneys tainted by alleged corruption prior to the trial
of Jones was another example of a valid reason which
would entirely justify the “crucial” delay of eleven
months. Were this Honorable Court to agree with
Petitioner, the State could be held accountable for
virtually none of the delay.
Respondent, Jones, was unquestionably linked by the
press to the dealings of the indicted defense attorney’s
and prosecutors in the Office of the State’s Attorney for
Baltimore County whose duty it was to bring Jones to
trial. Jones v. State, supra, 367 A.2d at 7-8. Since the
credibility of both the public officials and the defense
19
attorneys retained by Jones naturally would have
affected a jury, who would be well aware of the
allegations of corruption prior to trial, it was essential
that the State take all necessary steps to remove the
cloud of corruption unfairly surrounding Respondent’s
trial before the issues were submitted to a jury of his
peers. It should be noted that the sensational publicity
surrounding all facets of Jones’ trial is documented in
the record and even precipitated the mistrial and
change of venue on December 4, 1974 (Transcript of
Dec. 5, 1974, Baltimore County Circuit Court at 179,
187-94).
ASSERTION OF THE RIGHT
It is not disputed that Respondent filed pro forma
motions requesting a speedy trial through his ever
changing body of defense counsel on January 2, 1973,
November 14, 1973, and November 21, 1974. There is
mention in portions of the correspondence and trans-
cripts of court hearings to the same effect. Yet, upon
closer examination, it is clear each demand was part of
a well-orchestrated grand design to obtain dismissal of
the indictments for want of a speedy trial. The
manipulation of the courts and prosecutors by Respond-
ent is obvious. The first formal motion was filed after
Jones had signed the agreement (E. 14, 15) assigning
the order of trials he would receive. Further, it was
made during the course of the one year period of delay
attributable to Jones’ own actions, according to the
opinion of the Court of Appeals.
The second formal motion was filed by attorney
Robert Frank on November 14, 1973. This occurred after
the State had been informed on April 5, 1973 by the law
offices of F. Lee Bailey that defendant was waiving his
right to a speedy trial “until such time as you are
notified to the contrary.” Bailey’s appearance in the
20
case was never stricken even though Jones stated in
court on May 25, 1973 that he desired attorney Stephen
Miles as his sole counsel. Under Maryland law, the
State and the trial court were not incorrect if they did
not accept Respondent’s remarks as striking Bailey’s
appearance:
“Except [for reasons not pertinent here], in a
criminal proceeding the appearance of an attorne
for the defendant may be withdrawn only wi
leave of court after such notice to the accused and
to the State’s Attorney as the court may prescribe
and upon such conditions as justice may require.”
Maryland Rules of Procedure, Rule 751(a).
Therefore, it was not unreasonable for the State to
assume, in the absence of further communication from
Bailey retracting either his appearance in the case or
the waiver of right to speedy trial, that Respondent was
not in fact seriously pressing for an immediate trial.
The confusion surrounding the asserting and waiving
of the right to speedy trial was geared to help the
Respondent because he only asserted the right when
convenient and withdrew from that position as sched-
uled trial dates neared.
The third motion for speedy trial on November 14,
1974 is not a convincing assertion for it came after his
right had again been waived on June 26, 1974 in order
to permit F. Lee Bailey to handle the defense. Bailey
was responsible for the delay during November 1974.
Trial did commence a bare two weeks later in Baltimore
County Circuit Court on December 4, 1974. After the
mistrial and change of venue requested by Jones, trial
began again in the Circuit Court for Calvert County
seven days later.
While it is true, as the Court of Appeals mentioned in
the Jones v. State, supra, 367 A.2d at 19, that repeated
21
demands for a speedy trial demand strong evidentiary
weight, the situation at bar contradicts the sincerity of
those demands. The record reflects a situation closely
akin to the facts in Barker v. Wingo, supra, at 407 U.S.
536, 92 S. Ct. at 2194, where this Honorable Court
discounted a “pro forma motion” which was contrary to
defendant’s subsequent conduct.
This Honorable Court, after a difficult and sensitive
balancing test, did not find a violation of Barker’s right
to speedy trial even though five years passed between
‘his arrest and trial and a full 20 months after the
motion for speedy trial was filed. In assessing Barker’s
conduct, this Court noted:
“Instead the record strongly suggests that while he
hoped to take advantage of the delay in which he
had acquiesced and thereby obtain a dismissal of
the charges, he definitely did not want to be tried.’
Barker v. Wingo, supra, 407 U.S. at 535; 92 S. Ct. at
2194. In Barker, counsel conceded this fact in oral
argument but failure of counsel in the instant case to do
so before the Court of Appeals of Maryland is not
dispositive of the issue. Respondent’s conduct at trial
demonstrates beyond doubt that he “definitely did not
want to be tried.” His actions and verbal outbursts were
so dilatory and disruptive that the true nature of the
sham demand for speedy trial became clear. When all
else had failed in gaining Jones an additional postpone-
ment on the morning of trial he said in desperation “I’d
like a recess so I can think of something else... .” (E.
150). Subsequent boisterous outbursts resulted in the
trial judge ordering that Respondent be bound, then
gagged and finally removed from the court room.
Therefore, it is again asserted that the Maryland
Court of Appeals misapplied the law declared by the
Supreme Court of the United States by according
22
excessive weight to the mock requests for speedy trial
by Respondent. The Court of Appeals erred as a matter
of law.
PREJUDICE
As might be expected in a case where the defendant is
the cause of the majority of the delay prior to his trial
(18 months), Respondent has suffered virtually no
prejudice to his defense. The opinion of the Court of
Appeals of Maryland could not find as a matter of fact
actual prejudice. Jones v. State, supra, at 11-12. The
“presumed” prejudice recognized in Moore v. Arizona,
414 U.S. 25, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973) and
Strunk v. U.S., 412 U.S. 434, 93 S. Ct. 2260, 37 L. Ed. 2d
56 (1973) is minimal.
The case of Barker v. Wingo, supra, again provides
clear authority to assigning the proper weight to the
prejudice factor in the overall balancing test:
“A fourth factor is prejudice to the defendant. .
This Court has identified three such interests: (i) to
prevent oppressive — incarceration; (ii) to
minimize anxiety and concern of the accused: and
(iii) to limit the possibility that the defense will be
impaired.” (omitting citations contained in foot-
note 33). Id. at 407 U.S. 532, 92 S. Ct. 2193.
The Court of Appeals of Maryland failed to recognize
any alleged prejudice due to the impairment of the
defense caused by the delay. Thus this most important
factor, as this Honorable Court has stated, is absent.
With respect to oppressive pretrial incarceration, it is
noted that the Respondent spent virtually no time in
jail as a result of the instant charges. He escaped from
custody on the day following his arrest. After his
voluntary surrender on the advice of his counsel, F. Lee
Bailey, he was released on bail. The periods of
23
incarceration were due to the imposition of a thirteen
month sentence for an unrelated escape conviction and
a thirty year sentence for unrelated federal narcotics
violations.
The third factor concerns the anxiety an accused may
feel because of his uncertain future and the public
obloquy to which he will be subjected due to the untried
criminal allegations. It is submitted, again, that these
factors deserved very little weight.
Consideration of public obloquy became unimportant
upon Respondent’s conviction in the United States
District Court, District of Maryland. The offenses which
led to the imposition of a thirty year sentence occurred
during the same general time period as the instant
offenses. So close, were they in fact, that Respondent
sought to avoid trial on the instant offenses on a theory
of double jeopardy or collateral estoppel.
While that attack was doomed to failure, the proxim-
ity of the offenses does substantiate the claim by
Petitioner that Respondent’s reputation was at its ebb
upon the federal conviction and could not have suffered
more awaiting the outcome of the present indictments.
Through the benefit of 20-20 hindsight, it is noted that
whatever degree of public obloquy was directed at
Respondent was in fact deserved because the charges
were sustained by a jury.
No prejudice from missed opportunities for rehabilita-
tion programs or parole due to the untried indictments
in the instant case has been alleged below. Respondent
had barely begun to serve the thirty year term. The
interruption of family ties and employment, from which
prejudice may be presumed sometimes, is absent in this
case because of the imposition of the lengthy federal
prison sentence.
24
The Court of Appeals of Maryland relied on an
observation made by this Honorable Court in Strunk v.
U.S., supra, 412 U.S. at 439, 93 S. Ct. at 2263 to the
effect that even a prisoner serving prior sentences can
feel anxious about his future if denied the right to a
speedy trial. Jones v. State, supra, 367 A.2d at 12. The
holding in Strunk was far narrower. Assuming the
validity of the claimed denial of right to speedy trial,
this Honorable Court held in Strunk that the only
remedy was dismissal of the indictment. The Court
questioned the lack of a cross-petition to examine the
validity of the lower court’s finding of the denial of
Strunk’s right to a speedy trial, implying that the
merits of that defendant’s claim were less than
persuasive. By dicta the court noted at 412 U.S. 436, 93
S. Ct. 2262 that the large part of a pretrial delay was
due to Strunk’s actions, that no actual prejudice was
present and that the unintentional delay due to the
insufficient staff of prosecutors was to be weighed less
heavily than an intentional delay. The court seems to
suggest that if it had been asked to review the issue, it
would have found no violation of the Sixth Amend-
ment. The facts in Strunk are analogous in the instant
case to that extent.
Therefore, the Court of Appeals of Maryland, again
as a matter of law, erred in assigning prejudice to
Respondent as a part of the balancing test. That error
worked unfairly to the advantage of Respondent and
served to frustrate the rights of the citizens of Maryland
to enforce its criminal laws.
BALANCING
To summarize the factual conclusions upon which the
Court of Appeals of Maryland based its decision: (1) of
the total length of the delay, the Respondent was
responsible for the larger part, almost two-thirds. (2)
25
The reason for the eleven month delay attributable to
the State was due to a good faith effort to prosecute the
Respondent in an atmosphere untainted by allegations
of official corruption in the Office of the State’s
Attorney’s Office and due to a believed lack of
prosecutors and judges because of that same corruption
investigation. No hint of purposeful or intentional delay
to harass the Respondent or to impair his defense is
present. (3) The Respondent did assert his right to a
speedy trial, although there was ample evidence that
the Respondent's pro forma motions smacked of
opportunism. (4) No actual prejudice resulted from the
delay and minimal presumed prejudice was shown.
Based upon those facts, the balance should have
obviously tipped in favor of the State’s right to bring a
suspected felon to justice. The only remedy available for
an abridgement of the right to a speedy trial is
dismissal of the charge. This has been described as an
“unsatisfactorily severe remedy . . . because it means
that a defendant who may be guilty of a serious crime
will go free... .” Barker v. Wingo, supra, 407 US. at
522. This court also acknowledged the “societal interest
in trying people accused of crime rather than granting
them immunization... .” U.S. v. Ewell, supra, 383 U.S.
at 121. On balance, the State should not have been
faulted and made to suffer the ultimate sanction of
dismissal of the charges when it was attempting to
clean its own house of corruption and to deal with the
ever-changing strategy of the Respondent on bringing
this case to trial. However, the Court of Appeals of
Maryland came to the opposite conclusion, contrary to
the decisions of this Honorable Court. The issue in the
instant case does not depend on a mere fact-finding
exercise. The Petitioner submits that review by this
Honorable Court is appropriate and, indeed, necessary
since the law as delineated in Barker v. Wingo, supra,
was incorrectly applied by the highest court in the
Maryland judiciary.
NO ADEQUATE STATE BASIS
The Constitution of Maryland provides “That in all
criminal prosecutions, every man hath a right. . . toa
speedy trial by an impartial jury. ...” Maryland
Constitution, Article 21. However, this does not provide
an adequate state basis to support the departure of the
Maryland courts from the decisions of the United States
Supreme Court, nor does it prevent this Honorable
Court from undertaking a review of the State decision.
See, Fay v. Noia, 372 U.S. 391, 428, 83 S. Ct. 822, 843, 9
L. Ed. 2d 837 (1963).
Firstly, the Court of Appeals of Maryland nowhere
relied upon Article 21 of the Maryland Constitution in
its opinion in the instant case. Further, the Maryland
right to a speedy trial has been interpreted to guarantee
nothing more nor less than the concomitant Sixth
Amendment right under the Constitution of the United
States. As the case of Smith v. State, 276 Md. 521, 526,
350 A.2d 628 (1976), suggests, if anything, Maryland’s
constitutional right to speedy trial may excuse a longer
delay in bringing an accused to trial than the federal
right. But see Smith v. State, supra, 350 A.2d at 536
(concurring opinion of O’Donnell, J.).
Unquestionably, the courts of Maryland look to the
Barker decision, with an almost biblical reverence, as
the preeminent authority on speedy trial matters.
“That case is the touchstone to which we shall
return and return and return again in testing the
facts at hand against its informing standards.”
State v. Wilson, ___. Md. App. ' A.2d __
(No. 1366, Sept. Term, 1975, filed 3-8-77).
Yet a review of all the many opinions by Maryland
appellate courts (collected in State v. Wilson, supra, at
27
note 4), though ostensibly being grounded upon the
hallowed principles of Barker v. Wingo, supra, reveals a
crazy-quilt of decisions which deprive both criminal
defendants and the citizens of the state of any certainty
in predicting when a conviction will be vacated for
failure to provide a speedy trial. Compare Lee v. State,
32 Md. App. 671, 363 A.2d 542 (1976, cert. denied 12-6-
76), where crucial eleven month delay by State did not
violate right to speedy trial, with Pyle v. State, 34 Md.
App. 60, 366 A.2d 90 (1976), where eleven month delay
by State in routine case resulted in dismissal of charges
for lack of speedy trial. Compare Jones v. State, supra,
367 A.2d at 11-12 with State v. Wilson, supra, on the
treatment of presumed prejudice. The State of Maryland
desperately needs additional guidance from this Honor-
able Court on the issue of constitutional right to speedy
trial.
CONCLUSION
For the foregoing reasons, it is respectfully submitted
that the Petition for Writ of Certiorari should be
granted.
Respectfully submitted,
FRANcis B. BuRCH,
Attorney General
of Maryland,
GeorGE A. NILSON,
Deputy Attorney General
of Maryland,
CLARENCE W. SHARP,
Assistant Attorney General
of Maryland,
Chief, Criminal Division,
F. Forp LoKER,
Assistant Attorney General
of Maryland,
One South Calvert Building,
Baltimore, Maryland 21202,
383-3737,
Attorneys for Petitioner.
la
APPENDIX A
Court of Appeals of Maryland
No. 3
John Edward Jones
v.
State of Maryland.
Dec. 14, 1976.
Defendant was convicted in the Circuit Court, Calvert
County, Perry G. Bowen, Jr., J., of conspiracy to violate
narcotics laws, and defendant appealed. The Court of
Special Appeals, 29 Md. App. 182, 348 A.2d 55, affirmed,
and certiorari was granted. The Court of Appeals,
Digges, J., held that where defendant was not brought
to trial until approximately 29 months after his initial
arrest, where State was responsible for 11 months of
such delay, where defendant repeatedly asserted his
right to a ‘speedy trial, and where prejudice resulted
from delay, defendant was denied his Sixth Amend-
ment right to a speedy trial.
Reversed and remanded with directions.
Murphy, C. J., filed a dissenting opinion in which
Smith, J., concurred.
F. Lee Bailey, Boston, Mass. (Joel D. Fedder,
Baltimore, on the brief), for appellant.
Albert Gallatin Warfield, III and John A. Austin,
Asst. Attys. Gen. (Francis B. Burch, Atty. Gen., and
Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the
brief), for appellee.
2a
ed before MURPHY, C. J., and SINGLEY,
S , DIGGES, LEVINE and ELDRIDGE, JJ., and
MATTHEW S. EVANS, Special Judge.
DIGGES, Judge.
The issue which we conclude to be dispositive of this
criminal cause is whether the petitioner’s right to a
speedy trial as guaranteed by the Sixth and Fourteenth
Amendments to the Uni States Constitution was
denied. Because we determine that this right was
violated, the conviction must be reversed and the
indictment dismissed.
The petitioner, John Edward (Liddy) Jones, following
his arrest on July 12, 1972, was - ¥ in Baltimore
County with violations of, and with conspiracy to
violate, Maryland’s narcotics laws. Approximately two
and one half years later, in December of 1974, upon
removal trial began in the Circuit Court for Calvert
County before Judge Perry G. Bowen, Jr., and a jury. At
that trial Jones was found guilty on four counts of the
indictment and was sentenced to a 20-year term of
imprisonment to commence following the expiration of
a federal term he is presently serving. The petitioner
noted a timely appeal to the Court of Special Appeals,
where a three-judge panel upheld his conviction, with
Judge Davidson dissenting. Jones v. State, 29 Md. App.
182, 348 A.2d 55 (1975). We granted certiorari to review
that court’s decision.'
In the resolution of the speedy trial issue in this case
we, of course, must carefully scrutinize all occurrences
between Jones’ arrest and trial. For the sake of clarity
and brevity, however, we will present only a skeletal
outline of facts at this point and recount in more detail,
in our discussion of the reasons for the delay and the
1 Our grant of certiorari was limited to two issues: (1)
whether the petitioner had been denied his right to a speedy
trial as guaranteed by the Sixth and Fourteenth Amend-
ments to the United States Constitution, and (2) whether
Article XV, Section 5 of the Constitution of Maryland, which
establishes the jury as judge of the law as well as of fact in
criminal causes, in violative of federal due process require-
ments. In view of our determination with regard to the
speedy trial question, it is unnecessary to discuss the second
issue.
3a
defendant’s assertion of the right, those events which
the parties allege either directly or collaterally contrib-
uted to the two and one half year period. By way ofa
one sentence overview, suffice it to say that Jones’ trial
on the narcotics charges could well have taken place as
scheduled on December 15, 1972, June 25, 1973,
February 26, 1974, or June 26, 1974, but for various
reasons it did not commence unti! December 11, 1974.
On the day following his July 12th arrest, Jones
escaped from the Baltimore County jail; however,
within several days he surrendered to local authorities
and was indicted for the several narcotics offenses as
well as for the escape. The State elected, over Jones’
objections, to proceed on the escape indictment first,
and trial was set for November 29, 1972, with the
narcotics case to be tried no later than December 15th
of that year. However, neither trial took place as
contemplated because two days prior to the scheduled
trial on the escape charge, Jones and the State entered
into a written agreement which provided that the
escape case would be tried on January 8, 1973 (or as
soon thereafter as the docket would permit), and would
be completed prior to commencement of the trial on the
narcotics charges. Along with a number of preliminary
motions, Jones filed his first demand for a speedy trial
of the narcotics cause on January 2, 1973. On January
11, he entered a guilty plea to the escape charge and
was sentenced to a prison term of 13 months. On March
2, 1973, the Deputy State’s Attorney for Baltimore
County wrote to the papers attorneys, explaining
that while the State had taken no action to press the
narcotics case to a conclusion during the previous two
months because it was not sure Jones would attend the
trial (claiming his whereabouts were then unknown to
it), the State now desired to proceed as quickly as
possible. And in mid-March, the parties agreed to a
March 30 hearing on several pending preliminary
motions, which took place as scheduled. A little more
than one month later, on May 3, the petitioner was
indicted on charges of federal narcotics violations.
Although the State should have had scheduling priority
in light of the fact that a June 25 trial date was set at a
hearing in late May (when no trial date in federal court
apparently had been determined), Jones’ trial in the
To
4a
federal district court nevertheless began on June 18 and
lasted through July 21, thus forcing a further postpone-
ment of his state trial.’
Very little activity appears to have transpired over
the course of the next several months in connection
with the disposition of this case. In September the
state’s attorney’s office contacted Jones’ lawyers by
letter with regard to a motion for discovery and
inspection, and on November 14, the petitioner filed his
second motion for a speedy trial. Subsequently, on the
day after Christmas, Assistant State’s Attorney Rup-
— and Jones’ attorney orally agreed to a
ebruary 26, 1974, trial date and following several
exchanges of letters in January, this date became firm.
On the 8th of February, however, the case was removed
from the scheduled assignment by Circuit Administra-
tive Judge Proctor, who indicated that no judges were
available to conduct the trial and that it would have to
be rescheduled for some time during the April term of
court. Jones’ arraignment was similarly postponed on a
number of occasions in the spring of that year, during
which time numerous motions were filed, including
Jones’ third speedy trial assertion and a request that
his trial be severed from that of his three co-defendants.
Following the grant of the petitioner's severance
motion, the State elected to proceed against J ones’ co-
defendant first, but finally at a June 13 hearing, the
case against Jones was set to go forward on the 26th of
that month.
Perhaps he would have been tried in June, but at a
hearing on the scheduled trial date, Jones agreed to
waive his right to a speedy trial until November 18 so
that attorney F. Lee Bailey, who was then unavailable
due to a trial conflict, could represent him. An
additional postponement, requested by Bailey, caused a
further delay until early December. The trial finally
began in the Circuit Court for Baltimore County on the
4th; however, the next day Judge Proctor declared a
mistrial pursuant to Jones’ request and removed the
case to Calvert County where trial began on December
11. At trial, Jones again raised the speedy trial issue,
2 Jones was convicted in federal court and sentenced to a
30-year term of imprisonment which he is now serving.
5a
this time by a motion to dismiss. The court denied the
motion, and following a two day trial, Jones was
convicted on four counts of the indictment.
[1] In determining whether there has iola-
tion of the Sixth Amendment right to a pod yom
applicable to the states through the Fourteenth Amend-
ment, Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct.
988, 18 L. Ed. 2d 1 (1967), we must “engage in a difficult
and sensitive balancing process,” Barker v. Wingo, 407
U.S. 514, 533, 92 S. Ct. 2182, 2193, 33 L. Ed. 2d 101
(1972), in which four factors are of primary importance:
(1) length of delay, (2) reasons for the delay, (3)
defendant’s assertion of his right, and (4) prejudice to
the defendant. Id. at 530, 92 S. Ct. at 2191-92; see Erbe
uv. State, 276 Md. 541, 546-47, 350 A.2d 640, 643 (1976);
Smith v. State, 276 Md. 521, 527-28, 350 A.2d 628, 632-33
(1976); Epps v. State, 276 Md. 96, 1
71 (1975). , 104-09, 345 A.2d 62, 68-
: (1) Length of Delay
2] This Court concluded in Epps v. State, supra
Md. at 111, 345 A.2d at 72, that a peared iiday
interval between arrest and trial is “presumptively
prejudicial, requiring us to engage in the balancing
procedure outlined in Barker. See also Smith v. State,
supra, 276 Md. at 528, 350 A.2d at 633 (16-month delay).
Since the two-year, five-month interval between Jones’
arrest and trial was of considerably more than twice the
duration of that in Epps, we are bound to inquire into
the other factors included in the balancing process.
(2) Reasons for the Delay
[3-5] As this Court pointed out in Smith v
supra, 276 Md. at 528, 350 A.2d at 633, different :
for delay in prosecuting a defendant should be assigned
different weights. In this regard a continuum exists
whereby a deliberate attempt to hamper the defense
would be weighed most heavily against the State, a
prolongation due to the negligence of the State would be
weighed less heavily against it, a delay caused by a
missing witness might be a neutral reason chargeable
to neither party, and a delay attributable solely to the
defendant himself would not be used to support the
6a
conclusion that he was denied a speedy trial. Id. at 529,
350 A.2d at 633. ile we must scrutinize the entire
interval between and trial, and attempt to ascribe
reasons for particular delays, it is not possible or even
desirable to do so with mathematical precision; we will
not count up the time chargeable to the State, that
chargeable to the defendant, and those delays attributa-
ble to neutral reasons, multiply the number of days or
months by a parameter assigned for each particular
reason and then dismiss the indictment if the defendant
ends up with the lower tally. Instead, delays must be
examined in the context in which ow arise and
therefore a lengthy uninterrupted period chargeable to
one side will generally be of greater consequence than
an identical number of days accumulating in a
piecemeal fashion over a long span of time. Finally, we
must always bear in mind that the State has the duty to
bring the defendant to trial, Barker v. Wingo, supra, 407
U.S. at 527, 92 S. Ct. at 2190, and thus lengthy delays
by the State, particularly in the face of a defendant’s
assertion of his right, are especially significant.
Turning to the present case, we conclude that the
reasons for the delay can best be analyzed by dividing
the 29-month span into three periods: (1) from July 12,
1972, the date of Jones’ arrest, to July 21, 1973, the end
of his trial in federal court on narcotics charges; (2)
from July 21, 1973, to June 26th of the following year,
the day Jones waived his right to a speedy trial so that
attorney Bailey could represent him; and (3) from June
26, 1974, to December 11, 1974, the date on which Jones’
trial finally commenced. As discussed below, we
determine that whereas the initial delay of one year and
the final delay of six months were largely the result of
the defendant’s own actions, the 1l-month delay
between July 1973 and June 1974 was attributable
substantially, if not entirely, to the State’s dilatoriness.
(6, 7] Despite the petitioner’s contentions to the
contrary, the initial year’s delay was not the result of
conduct which may be charged to the State. It is clear
that Jones either initiated or acquiesced in the post-
ponement of his trial for substantial periods of time
prior to July 1973 — by written agreement, he
consented to the January 8, 1973 scheduling of his trial
7a
on escape charges, with that trial to be completed prior
to the commencement of trial on the narcotics indict-
ment in the present case; he explicitly waived his right
to a speedy trial from April 5 to May 25;3 and, through
the apparent failure of his attorneys to inform the
federal district court that a June 25 trial date in the
state case had been set, he allowed a conflict between
the two trials to result, causing a postponement of the
state trial until after the completion of the federal case
in July. Although the State may have been accountabie
for other short periods during this interval, had the
petitioner been brought to trial promptly after the
ee ae federal trial, this Court would have
ad little culty in rejectin i
yok, pgh - ~My j g a claim that he was
[8] We now turn our attention to that interval of
months following Jones’ federal trial, a delay which a
consider to be crucial in this case. As mentioned in our
summary of the facts, little occurred during this period
in connection with the disposition of the narcotics
charges pending against Jones. The petitioner argues,
as might be expected, that the delay between July 1973
and June 1974 was the result of inexcusable foot-
dragging on the part of the prosecution. The State,
while admitting at oral argument before this Court that
this interval is “the most difficult to specifically point
out the reasons for,” nonetheless attempts to justify its
inaction in two basic ways: first, that during this time
there were ongoing investigations, resultant indict-
ments, and trials which had originated in allegations of
corruption related to Jones’ prosecution, and second,
3 On April 5, Bailey informed the state’s attorney’s o
that, due to other commitments, he wanted the trial
postponed and that the defense was waiving its right to a
speedy trial until: further notice. However, at a May 25th
hearing before Judge Proctor to determine, among other
things, _who was representing Jones at that time, he
emphatically stated that Bailey no longer represented him
and that his sole attorney was Stephen Miles. We conclude
therefore, that the waiver by Bailey must be deemed to have
been explicitly terminated as of the date of that hearing. In
this respect, Jones testified at trial that he had discharged
a because he “didn’t want him to keep holding [the] case
8a
that during this interval Jones’ attorneys were actively
involved in plea negotiations on his behalf. We are
unpersuaded, however, that these rationalizations in
any way justify the delay amounting to nearly one
year, particularly since a year had already passed and
‘Jones had asserted his speedy trial right both prior to
and during this 11-month interval.
It is true that in November of 1972, four months after
Jones’ arrest, Governor Mandel issued a directive to the
Attorney General to investigate allegations of official
corruption in connection with Jones prosecution and
escape from the Baltimore County jail. It is equally true
that this anvesigeten eventually led to prosecution of
two attorneys who represented Jones as well as to a
collateral probe of misfeasance in the office of the
State’s Attorney for Baltimore County. We do not
believe, however, that these activities by the State in
any way served to excuse the delay between July 1973
and June 1974 or in any way constituted “a cloud of
corruption,” Jones v. State, supra, 29 Md. App. at 196,
348 A2d at 64, over the petitioner’s narcotics case
which mandated the postponement of Jones’ trial until
all taints of official misconduct were eradicated.
Although one of Jones’ attorneys, Robert Frank, was
under investigation during various stages of the
prosecution of the petitioner, we discern no reason why
this should have interfered with the orderly disposition
of the narcotics charges against Jones. Frank was tried
in January and February of 1973 on charges of
attempting to bribe the Deputy State’s Attorney for
Baltimore County and, though acquitted, admitted in
the course of that trial the payment of $3,000 to
influence that public official in actions unrelated to
Jones; however, this proceeding occurred during the
interval which we have already ascribed to the
defendant and at a time when Frank was not even
representing Jones. Although disciplinary proceedings
were pending against Frank during the interval
presently under consideration, and he ultimately was
disbarred in the autumn of 1974, Maryland State Bar
Ass’n v. Frank, 272 Md. 528, 325 A.2d 718 (1974), we do
not perceive how this can justify the State's failure to
Ya
bring Frank’s client to trial.‘ We agree, moreover, with
Judge Davidson’s analysis in her dissenting opinion in
the Court of Special Appeals that “if the State’s reason
for delaying Jones’ trial was, in fact, to await the
outcome of the disbarment proceedings against Frank,
it should have at least expressly so notified him, so that
he might choose other counsel and obtain a speedy
trial.” 29 Md. App. at 222, 348 A.2d at 78.
[9] The State also attempts to justify the delay from
July 1973 to the following February in Jones’ trial as
being a direct result of the investigation of Stephen
Miles, another of Jones’ lawyers, and the prosecution of
officials in the state’s attorney’s office on charges
wholly unrelated to the petitioner. On July 20, 1973,
Miles, who represented Jones at that time, was indicted
on charges which included conspiracy with the peti-
tioner (named by the State as an unindicted co-
conspirator) to bribe the Deputy State’s Attorney. His
trial on those charges commenced in the latter part of
February 1974 and he was acquitted on March 11 of
that year. During this E. the prosecution of
Baltimore County State’s Attorney Samuel Green and
an investigator, Louis Irvin, also took place. In its brief
the State contends that “the ultimate responsibility
must lie with Petitioner himself for this period of time
since his own counsel precipitated the investigations
and indictments through their own activities.” We do
not agree. Quite to the contrary, for several reasons we
view the State’s explanation of the delay as nothing
more than a concocted diaphanous smoke screen. The
record discloses that on August 22, 1973, a mere four
weeks after the termination of Jones’ federal trial, an
Assistant Attorney General sent a letter, the body of
which we quote in its entirety, to Chazles Ruppers-
_ * We note, as did Judge Davidson in her dissenting opinion
in the Court of Special Appeals, 29 Md. App. at 222 n. 7, 348
A.2d at 78, that at the time of the disciplinary ———-
against Frank, the Maryland Rules did not provide for the
suspension of attorneys pending final decision on the
charges by this Court. See Rule BV8. Even under the
presently applicable rules, only those attorneys convicted
(and Frank was not) of a crime involving moral turpitude
may be suspended _from the practice of law pending the
disposition of the disciplinary proceedings. See Rule BV16.
10a
1. Assistant State’s Attorney for Baltimore County
(with a copy to Judge Proctor), which indicates
expressly or implicitly that Jones trial and the
Attorney General’s investigation would not seriously
interfere with one another so as to prevent either from
proceeding to a conclusion:
“The of this letter is to confirm the oral
sumenah of this office to your question ‘would the
trial of John E. (Liddy) Jones by the State’s
Attorney’s Office of Baltimore County interfere
with the investigation currently being conducted
by the Attorney General’s office?’ J want to again
assure you that the trial of Mr. Jones would not
interfere with the aforesaid investigation.
“You should be aware, however, inasmuch as
Stephen Miles, Esquire may be trial counsel for Mr.
Jones, that the case of State v. Miles is scheduled
for trial beginning November 12, 1973, and that
Mr. Miles may be called as a witness in the case of
State v. Irvin, scheduled to begin October 9, 1973
and State v. Green, scheduled to begin October 23,
1973.” (Emphasis added.)
Moreover, Miles did not even represent Jones after
September 6, 1973, and therefore Miles’ own trial or his
appearance at the trial of Green or Irvin was no longer
of any consequence, if it ever could have justified a
delay in the Jones trial, after the beginning of
September. Finally, Jones at all times had an attorney
ready to go to trial, and if the complement of
prosecutors in Baltimore County was depleted, as the
State seems to suggest, by allegations of corruption in
the state’s attorney’s office, it was incumbent upon the
State to utilize existing procedures for the appointment
of another prosecutor.> That simple expedient would
have removed what the State now asserts was its fear
5 As we recentl inted out in Sinclair v. State, 278 Md.
243, 246 n. 1, 363 A'2d 468, 470 (1976), both the Constitution
and Code of Maryland provide remedies for such a conting-
ency on existed Rese, Ses 365, Conct., Act. ©, 9? Gummeiing
attorn eneral to upon on vernor
Gen Fam 8 e (1974), Courts and Jud Proceed-
ings Article, § 2-102(a) (allowing court to appoint temporary
counsel for the State.)
—a a ett et ee RNR
lla
that the trial would be conducted under a “cloud of
ee tug =p A ed
petitioner’s ial right ultima ting
the State’s failure to bring Jones to trial promptly.
[10] The delay from the end of Fe to June 26
also must be weighted against the State. February
8, Judge Proctor in the Circuit Court for Baltimore
County postponed the February 26 trial date to
“sometime during the April Term of Court,” due to the
unavailability of judges resulting from the trial of cases
in the aftermath of the investigation of the state’s
attorney’s office. We conclude, however, that delay due
to the lack of a judge to preside at a defendant’s trial is
my A pry to the State. See Smith v. State, supra,
276 Md. at 529, 350 A.2d at 633. The State’s suggestion,
therefore, that the delay from February to at least
sometime in April should not be attributed to it is
wholly without merit.6 And with res to the delay
from May to mid-June, we need only note that the
State’s brief concedes that its election to proceed
against Jones’ co-defendants first requires that period
to be charged to it. Arguably, only the delay during
April can possibly be classified as neutral; however, we
conclude that it is more likely than not chargeable to
the State since the record does not reflect any reason for
the delay at this time, and the earliest possible trial
date in any event was sometime in the April term,
which did not even begin that year until the 8th of that
month.
11] In a desperate effort to extricate itself from this
otherwise inexplicable situation, the State secondly
offers the fact that some plea negotiations were
conducted during a short portion of this 11-month
period. The only references in the record to such
negotiations consist of the January 9, 1974 letter from
Benjamin Bronstein, the Deputy State’s Attorney, to
Frank, in which Bronstein noted his recollection of
conversations which had led him to believe that Frank
® We note that even though the judges of the Third Judicial
Circuit (which includes Baltimore and Harford Counties)
may have been occupied with the trial of other cases in the
winter of 1974, a mechanism exists to ameliorate just such a
situation. See Md. Const., Art. IV, § 18A.
i
12a
was “not necessarily concerned with the trial of the
Jones case but in plea negotiations, _and Frank’s
response the next , admitting having discussed plea
negotiations on a number of occasions, but asserting
that any such discussion was irrelevant to his client’s
demand for a speedy trial. Under these circumstances,
we agree with Judge Davidson that “{t}he right to
negotiate for a plea need not be relinquished to avoid an
iediesnee either that a delay was caused by the accused
or that a delay otherwise attributable to the State
should be excused.” 29 Md. App. at 225, 348 A.2d at 79.
No reason appears to us why the State should not be
required to provide a prompt trial, whether or not the
parties are engaged in plea negotiations.
The third and final period, from June 26 to December
11, 1974, when Jones’ trial commenced, to a large
degree was the result of the petitioner’s own actions and
we need pause only momentarily to consider it. He
specifically waived the right from June 26 to November
18 so that attorney Bailey could re-enter the case and
represent him at —_ La. final nn oa —_— _
toa nement by ey apparently withou
cdaies of Jones, at the least cannot be charged to
the State.
ag What we have here, thus, is an 1l-month
delay overwhelmingly chargeable to the State sand-
wiched between an earlier delay of one year and a
subsequent delay of nearly six months, both of which
are due to neutral reasons or to the actions of Jones. We
note initially that the final six-month delay because of
the unavailability of Bailey in no way serves to
mitigate the failure of the State over the preceding 11
months to bring Jones to trial. Moreover, in light of our
recent decision in Smith v. State, supra, we are
compelled to conclude that the initial year’s delay
caused to a substantial extent by Jones himself
similarly in no way excused the State from its duty to
bring the defendant to trial during the crucial 11-month
period, particularly in the face of Jones repeated
demands. In Smith, the accused was originally sche-
duled to be tried on a ae some nine months
after his arrest, having first been committed to a state
hospital for mental examination and (three months
l3a
after his arrest) found competent to stand trial.
However, just prior to the scheduled trial date, the State
discove that its chief prosecuting witness was no
oe within the jurisdiction; the trial was postponed,
and though the witness was located and a new date for
trial was immediately sought, it was not rescheduled
until a date some five months later, notwithstanding
the defendant’s prior demand for a s y trial. No
excuse was offered for that five-month delay, which we
termed “crucial,” and we concluded, as we do in respect
to the 1l-month delay here, that it was caused by
governmental tardiness and neglect. 276 Md. at 530-31,
350 A.2d at 634-35. We said:
“In view of the amount of time which had already
a the petitioner’s demand for a speedy trial
and the circuit court’s evident concern over the
issue, the State should have made certain that the
trial was promptly reset for a date in the immediate
future, even if that uired the rescheduling of
other cases. .. . We add that when a defendant
makes known his desire to be furnished his
constitutionally guaranteed speedy trial, it is
incumbent upon the State to provide for trial at the
earliest practicable date. Epps v. State, supra, 276
Md. at 114-15, 345 A.2d at 74; Jones v. State, supra,
241 Md. [599] at 610-11, 217 A.2d 367.” Id. at 531,
350 A.2d at 634.
In addition we observe that where a demand has been
made for a s y trial, where almost a year has
elapsed, for whatever reasons, since the time of the
defendant’s arrest, and where any impediment to trial
attributable to the accused’s actions has been removed,
it is incumbent L the State to bring the accused to
trial without further delay.
(3) Defendant’s Assertion of His Right
It is not disputed that Jones’ counsel and Jones
himself repeatedly asserted his right to a speedy trial.
Motions to that effect were filed on January 2, 1973, on
November 14, 1973, and on November 21, 1974; motions
to dismiss for lack of a speedy trial were filed on May 15
and November 21, 1974. Moreover, various items of
correspondence between his lawyers and the State in
Ld
l4a
January and March of 1974 substantiate Jones’ desire
for a speedy trial. The State contends, however, that the
petitioner's conduct, as reflected in his “numerous
changes of counsel,” and in his behavior at trial, belied
his formal demands.
Although there indeed were a number of attorneys
involved in this case at various times, at no point was
Jones without counsel, and the matter of who repres-
ented him of record at any particular time is not
complicated. In 1972, Jones had four attorneys: Stephen
L. Miles (a member of the Maryland bar), whose
appearance was entered on August 21, as well as F. Lee
Bailey and Gerald Alch (both of Boston, Massachu-
setts), and Gerald Kroop (of the Maryland bar) whose
appearances were entered on October 13. Miles’ appear-
ance was stricken on January 22, 1973, shortly after
entry of the appearance of William H. rr Jr. as
local counsel. At a a on May 25, 1973, however,
Jones stated that only Miles represented him, that he
had discharged Bailey and Alch due to their unavaila-
bility at that time, see note 3 supra, and that he did not
want either ry or Kroop as counsel. On June 7
1973, Robert H. k (also a member of the Maryland
bar at that time) entered his appearance as co-counsel
with Miles; in September, however, Miles’ appearance
was stricken, leaving Frank as Jones’ only attorney. In
June of 1974, Frank’s appearance was stricken and
Bailey once again became Jones’ attorney, this time
with William W. Carrier as local counsel.
[15] The assertion that these “numerous changes of
counsel” indicate that Jones did not actually desire a
speedy trial is without merit. Although Bailey’s and
Alch’s appearances had never been formally stricken,
the record is clear that they had actually been
discharged by Jones, and that the court and the
prosecutors were so informed. Moreover, Bailey’s
discharge in May of 1973, and his subsequent rehiring
in June of 1974, is perfectly understandable, since
Bailey had been indicted in Florida in May 1973 on
federal mail fraud and conspiracy charges (both later
dismissed) and he was in no position to represent Jones
until April 25, 1974. See United States v. Bailey, 399 F.
Supp. 526, 528 (M.D. Fla. 1975). We fail to see how this
15a
or any of the other attorney changes in this case can be
construed to imply that the petitioner did not in fact
desire a speedy trial.
Nor can we simply infer from Jones’ conduct on the
first day of his trial that his prior demands had been
disingenuous. At trial on December 11, Jones expressed
his dissatisfaction with Bailey’s representation of him
and stated that because of this he was not prepared to
begin the trial on that day. We do not conclude,
however, that this isolated request in any way detracted
from the sincerity of Jones’ previous efforts, over the
course of two and one half years, to obtain a prompt
trial. The rationale set forth in Judge Davidson’s
dissent, 29 Md. App. at 230-31, 348 A.2d at 82-83,
involving the strained relations which had developed
between Jones and his attorney as a result of disagree-
ment over the conduct of his defense, is certainly a
plausible explanation. Moreover, Barker v. Wingo,
supra, 407 US. at 531, 92 S. Ct. at 2192, requires us to
give repeated demands for a speedy trial “strong
evidentiary weight,” and we believe that those demands
should not be discounted unless the evidence on that
point is very clear, as it was in Barker. There, counsel
admitted at oral argument that his client probably did
not want to be tried; for well over three years (of a total
five-year delay) the defendant had made no assertion
whatever of this right; and even after his first request,
he again agreed to additional continuances. Id. at 534-
36, 92 S. Ct. at 2194-95. Jones, unlike Barker, repeatedly
asserted his desire for a speedy trial from the outset,
and no concession has ever been made that the
petitioner here did not in fact desire a speedy trial. The
evidence from which we are asked to conclude that
Jones did not want a speedy trial is tenuous; conse-
, iad his repeated demands must be weighted in his
avor.
(4) Prejudice to the Defendant
[16] Under Supreme Court guidelines, an affirmative
demonstration of prejudice is not necessary to prove
that a defendant was denied his constitutional right to
a speedy trial. Moore v. Arizona, 414 U.S. 25, 26, 94 S.
Ct. 188, 189, 38 L. Ed. 2d 183 (1973) (per curiam). If a
16a
defendant can show prejudice, of course, he has a
stronger case for dismissal.
[17] Jones asserts that he was prejudiced at trial
because exclupatory testimony from three witnesses
was not available to him. The record indicates that co-
defendant Kevin Darby, one of the prospective
witnesses, was killed in May of 1973, and that prior to
that time he was incarcerated in a mental institution
and was not expected to attend his own trial. Since we
have indicated that, had Jones been brought to trial
promptly after the end of his federal trial in July 1973,
denial of his speedy trial right probably would not have
occurred, Jones cannot rely on prejudice from Darby’s
death.? Jones testified that Joseph Perry, another
prospective witness, died some time in 1973, and in
final argument on the issue at trial, his attorney
mentioned the disappearance of a third witness,
Andrew Strickland, who had originally been another of
Jones’ co-defendants. Since it is not clear from the
record what testimony Jones claims Strickland might
have offered, and since it may be that Perry, as well as
Darby, had died before the critical period of delay
, we cannot determine whether Jones suffered
an actual impairment of his defense.
[18-20] We do note, however, that factors of lesser
importance are also to be considered in assessing
prejudice:
“The speedy trial guarantee recognizes that a
prolonged delay may subject the accused to an
emotional stress that can be presumed to result in
the ordinary person from uncertainties in the
prospect of facing public trial or of receiving a
sentence longer than or consecutive to, the one he
is presently serving — uncertainties that a prompt
trial removes.” Strunk v. United States, 412 US.
434, 439, 93 S. Ct. 2260, 2263, 37 L. Ed. 2d 56 (1973).
7 We note also that, in his written agreement with the State
of November 27, 1972, relating to the trial of his escape case,
Jones waived any right to future postponement of his trials
on either the escape or the narcotics charges on the ground of
the unavailability of Kevin Darby as a witness.
17a
Jones was forced to endure the prospect of undergoing
his trial in state court for well over a year following his
conviction on federal charges in July of 1973, and
therefore may have suffi needlessly for 11 months
due to the State’s inactivity in disposing of his case
promptly. We also consider, as we must in every
criminal cause, that, although the right to a speedy
trial is a protection for the accused, broader societal
interests are also effectuated by the enforcement of the
guarantee. See Barker v. Wingo, supra, 407 U.S. at 519-
21, 92 S. Ct. at 2186-87; Dickey v. Florida, 398 U.S. 30,
42, 90 S. Ct. 1564, 1571, 26 L. Ed. 2d 26 (1970) (Brennan,
J., concurring); Smith v. State, supra, 276 Md. at 533-34,
350 A.2d at 636.
[21] Having examined the facts of this case as they
relate to the four-factor analysis of Barker, we conclude
that the petitioner was denied his Sixth Amendment
right to a speedy trial. As required by the ruling of the
United States Supreme Court in Strunk v. United
- States, supra, 412 U.S. at 440, 93 S. Ct. at 2263, the
indictment upon which the petitioner was convicted
must be dismissed.
JUDGMENT OF THE COURT OF SPECIAL AP.
PEALS REVERSED; CASE REMANDED TO THAT
COURT WITH DIRECTIONS THAT IT REVERSE
THE JUDGMENT OF THE CIRCUIT COURT FOR
CALVERT COUNTY AND REMAND THE CASE TO
THAT COURT WITH INSTRUCTIONS TO DISMISS
THE INDICTMENT. COSTS TO BE PAID BY BALTI-
MORE COUNTY.
MURPHY, Chief Judge (dissenting).
I respectfully dissent from the holding of the majority
that the petitioner’s constitutional right to a speedy
trial was violated. In my judgment, nothing in the
terribly tedious and tortured history of this case from
the time of Jones’ arrest on July 12, 1972, to his trial on
December 11, 1974, warrants the ultimate conclusion
reached by the majority that the constitutional precepts
enunciated in Barker v. Wingo, 407 U.S. 514, 92 S. Ct.
18a
2182, 33 L. Ed. 2d 101 (1972), and its progeny, mandate
that Jones be set free without trial because of the
State’s “dilatoriness” in bringing the case to disposi-
tion.
The majority divides the 29-month delay in bringing
Jones to trial into three parts. As to the period from
July 12, 1972, to July 21, 1973, it properly acknowledges
that the delay was completely attributable to Jones’
own actions. It similarly acknowledges that the delay
from June 26, 1974, to December 11, 1974, was also
attributable solely to Jones. It identifies the 11-month
delay from July 21, 1973, to June 26, 1974, as the crucial
period in assessing whether the State denied Jones’
constitutional right to a speedy trial; it attributes the
delay during this period entirely to the State’s procrasti-
nation.
Stripped of excess detail, the chronology of signifi-
cant events amounts essentially to this. The five-month
period following Jones’ arrest was taken up with the
usual bevy of motions and preliminary dtenia ishing
between Jones and the prosecutor. During this period
no less than five lawyers, including F. Lee Bailey and
Stephen L. Miles, entered their appearance on behalf of
Jones. While a trial date in January of 1973 was agreed
upon, Jones nevertheless filed a motion for a speedy
trial on January 2, 1973. The State responded promptly
by setting the case for trial. Just as promptly, Jones,
acting through Bailey, waived his right to a speedy trial
by letter dated April 5, 1973, wherein it was stated that
“the defense does not demand immediate trial until
such time as you are notified to the contrary.” By May
of 1973, Jones had discharged four of his lawyers,
including Bailey, leaving Miles as his only counsel.
Bailey did not, however, strike his appearance. Robert
Frank entered his appearance as counsel for Jones on
June 7, 1973. Shortly thereafter, Jones went to trial on
federal charges; that trial lasted from June 18, 1973, to
July 21, 1973.
The State took no immediate action to set the case for
trial following Jones’ conviction in the federal court,
undoubtedly because it considered Jones’ waiver of a
speedy trial still viable. In September of 1973, Miles
19a
struck his appearance as counsel for Jones; he had been
indicted in July of 1973. Frank continued as Jones’
counsel. The record indicates that plea negotiations
were taking place during the summer and early fall of
1973. On November 14, 1973, Jones filed his second
motion for a speedy trial, acting through Frank. By
agreement of counsel, the case was set for trial on
February 26, 1974, although Frank indicated his desire
that the case be tried in January. Frank was then facing
disbarment p , with a hearing before a three-
judge panel set for February 19, 1974. Jones’ trial date
was postponed, with the understanding that he would
be arraigned on March 11, 1974, and a firm trial date
—_ at ir — Frank was ten gy on March 11,
, an e hearing was postponed. Arraignment was
reset for April 29, 1974; and trial was scheduled for
June 26, 1974. As the trial date approached, Jones
complained to the court that he was not ready for trial;
he said that Bailey was still his lawyer, and he wanted
him to represent him at the trial. Frank struck his
appearance on June 19, 1974, and Bailey reentered the
picture as counsel on June 26, 1974.
Bailey promptly waived Jones’ right to a speedy trial
until he could be available for tril. A trial date was
agreed upon for November 18, 1974, but Bailey
subsequently indicated that he would not be available
on this date. The case was rescheduled for trial on
December 4, 1974; Bailey appeared as Jones’ counsel.
After the jury had been empaneled, Jones moved for a
change of venue, which was granted. The case was
removed to another county and brought to trial a week
later on December 11, 1974. Consistent with his past
actions, Jones undertook to discharge Bailey and
employ new counsel. Jones claimed he was not ready
for trial, that he had 300 witnesses to call from all over
the United States and needed a postponement. The
court denied the request for a postponement. In
desperation, Jones told the court, “I’d like to have a
recess so I can think of something else... . .” Thereafter,
Jones sought to disrupt the trial and eventually had to
be shackled and gagged.
~ a
<n ae ene
20a
The majority concludes that the facts show that
Jones at all times had an attorney ready for trial, and
that the delays attributable to him did not serve to
mitigate the State’s failure to bring him to trial between
July 21, 1973 and June 26, 1974. Whil e I agree that the
delay attributable to Jones did not insulate the State
from discharging its duty to bring Jones to trial, I think
that the critical period began with the filing of the
second speedy trial motion on November 14, 1973, and
ended on June 26, 1974, when Jones again waived his
right to a s y trial. As the majority opinion
indicates, truly exceptional circumstances existed
during this period; among other things, the State’s
Attorney was on trial during January and February of
1974; Miles also was brought to trial in February on the
indictment pending against him — an indictment
which implicated Jones. Frank, although previously
acquitted of criminal charges brought against him, was
then Jones’ only counsel and he was facing disbarment
proceedings. Not all of the delay during this critical
period was chargeable to the State; part of it was
plainly due to Frank’s unavailability and his practical
inability to try the case during the pendency of his
disbarment proceedings.
As I see it, the State’s dereliction in bringing the case
to trial during the critical period, and particularly in the
spring of 1974, was not — all circumstances considered
— so gross as to call for the ultimate sanction of
dismissal of all charges against Jones. Barker uv.
Wingo, supra, requires that we engage in a “difficult
and sensitive balancing process” in passing upon a
claimed denial of the constitutional right to a speedy
trial; it calls for a functional analysis of the right in the
particular context of the case under consideration. In
view of the extraordinary circumstances involved in
Jones’ case, and taking into account the four factors
applicable in determining whether the constitutional
right to a speedy trial has been denied, and giving them
appropriate weight, I would agree with the Court of
Special Appeals and affirm the judgment. In so
concluding, I do not intend to indicate approval of the
State’s handling of the case. On the contrary, it appears
to me that the State unwittingly permitted itself to be
2la
manipulated by Jones, acting on his own and through a
battery of attorneys, it being his grand design to obtain
a dismissal of the indictment for lack of a speedy trial.
That such a result ensued in this case under the
majority’s opinion should serve as a bitter lesson to
prosecutors and judges throughout the State not to risk
playing Russian roulette with the public’s right to have
criminal defendants brought to the bar of justice on a
timely basis.
Judge SMITH authorizes me to state that he concurs
in the views expressed herein.
22a
APPENDIX B
JOHN EDWARD JONES v. STATE
OF MARYLAND
{No. 131, September Term, 1975.)
Decided December 1, 1975.
Camma. Law — Speedy Trial — Guarantees For — Barker Test —
Factors To Be Considered From Time Putative Defendant Becomes An
Accused Until Conviction At Trial — Length Of Delay — Two And
One-Half Years Presumptively Prejudicial — Prejudice — It Certainly Was
Not Intent Of Holding In Epps v. State To Create Compelling Presumption
In Favor Of Accused Who Lays Claim To Lost Witnesses That Such
Testimony Would Be Exonerative For Tp Do So Would Require Acceptance
Without Question The Unsupported Allegation That Testimony Would Be
Favorable And Additionally Would Have Been Available But For The
Delay; However, For Witness’ Absence To Weigh So Great Against State It
Is Implicit That Delay Must Have Been Of State It Being Clear, In
Case At Bar, That None Of The Delay Was Solely Attributable To State
Either By Neglectful Or Intentional tination — Root Cause Of
Delay Found Not Solely The Result Or Consequence Of Governmental
Action Alone For A Substantial Part Of Admitted Delay Was Result Of
Collateral Indictments And Trials Of The Accused's Counsel And State's
Attorneys Affiliated With Case And Likewise Occasioned By Accused's
Other Trials And At Behest Of His Counsel In Addition To Added
Confusion By Accused Of Repeated Hiring And Firing Of Various Counsel
— No Evidence Found That Delay In Trial Was Intentionally Purposeful Or
Oppressive Nor Negligently Caused By State It Being Evident That State
Discharged Its Constitutional Duty To Ma'ce Diligent, Good-Faith Effort To
Bring Accused To Trial. pp. 184-186, 195, 199-201
Crmunai Law — Collateral Estoppel — Denial Of Motion To Dismiss On
Basis Of Collateral Estoppel Held Proper, Record Non-Supportive That
Issues Litigated In Federal Court Were Same As Determined In Instant
Case. p. 201
Criminal Law — Merger — Conviction Of Possession Of Heroin Sufficient
To Indicate Intent To Distribute Vacated As Having Merged With Initial
Charge And Conviction Of Simple Possession Of Heroin. pp. 201, 202
Criminal Law — Jury's Role As Judges Of Law — Article XV, Section 5
— Claim Of Denial Of Due Process — Article XV, Sec:ion 5 Of Maryland
Constitution Repeatedly Upheld As Constitutional Despite Fact It Is, Of
23a
Itself, Unique If Not An Archaic Practice — Constitutional Change
Initiated By Legislature Only Not By Courts. pp. 205-206
H.E. F.
Appeal from the Circuit Court for Calvert County (Bowen,
J.).
John Edward Jones was convicted in a trial by jury of
possession of heroin with intent to distribute, possession of
heroin and two counts of possession of controlled
paraphernalia and from judgments entered thereon, he
appeals.
Judgment affirmed except conviction and sentence under
count 2 vacated as merging with the conviction under count
1. Costs to be paid by the appellant.
The cause was argued before Morton, Davmpson and
Lowe, JJ.
F. Lee Bailey for appellant.
Albert Gallatin Warfield, III, Assistant Attorney General,
with whom were Francis B. Burch, Attorney General,
William E. Brannan, State’s Attorney for Baltimore County,
and Benjamin Bronstein, Deputy State's Attorney for
Baltimore County, on the brief, for appellee.
Lowe, J., delivered the epinion of the Court. Davipson, J.,
dissents and filed a dissenting opinion at page 206 infra.
John Edward Jones was tried before a jury in the Circuit
Court for Calvert County, and convicted of narcotic law
violations, nearly two and one-half years after his initia!
arrest. It would be rare, indeed, had his arguments on
appeal not included an assertion that he was denied a speedy
trial. Although two of his other arguments are of
constitutional dimension, it is the trial delays that give us
most pause.
Part of our concern lies in the relative nature of the right
itself, which is consistent with delays and dependent upon
circumstances. Beavers v. Haubert, 198 U. S. 77, 87. The
24a
bulk of our difficulty was the need to recunstruct those
circumstances from cold records, docket entries, pleadings,
occasional correspondence and excerpts from transcripts of
numerous cases all related, if not directly connected, to
appellant as their focal point.' The conclusion we have
reached is that appellant was not denied a speedy trial.
Despite his protestations from the beginning, the record
strongly suggests that he did not want to be tried but hoped
to take advantage of the delay by setting the scene to obtain
his future deliverance. Cf. Barker v. Wingo, 407 U. S. 514,
535. The pattern of behavior of appellant and his counsel
compel that conclusion.
I
The right to a speedy trial is guaranteed to the accused in
tandem by the Maryland Declaration of Rights, King v.
State, 5 Md. App. 652, and the Sixth Amendment of the
Constitution of the United States, made applicable to the
states through the Fourteenth Amendment, Klopfer v.
North Carolina, 386 U. S. 213. In Barker v. Wingo, 407 U. S.
514, the Supreme Court prescribed the test by which to
determine whether a criminal defendant has been denied
this right.
Under the Barker test, the four factors we must consider
from the time “the putative defendant ... becomes an
‘accused’. . .” United States v. Marion, 404 U. S. 307, 313,
until his conviction at trial are: length of delay, reason for
delay, prejudice to the accused and assertion of the right by
the accused. None of these four factors is a prerequisite to
the finding of the deprivation of appellant's right to a speedy
trial. Neither is any one factor a sufficient condition to find
a deprivation. “Rather, they are related factors and must be
considered together with such other circumstances as may
be relevant. In sum, these factors have no talismanic
qualities; courts must still engage in a difficult and sensitive
balancing process.” Barker, 407 U. S. at 533. On the other
hand, while failure to assert the right will not serve as a
1. Parts of the record submitted were provided by agreement of counsel
expressed at argument.
¢
25a
waiver, id. at 524, an accused may by express agreement or
by his conduct waive the right to a speedy trial just as he
may intentlenally relinquish any other constitutional right.
See Johnson v. Zerbst, 304 U. S. 458.
The Length of Delay
A delay of the length shown here of two and one-half
years overall, is “presumptively prejudicial,” Barker v.
Wingo, 407 U. S. at 530 and surmounts the threshold
question of whether there was a delay of constitutional
proportions. State v. Lawless, 13 Md. App. 220, 229. We
must then apply the three remaining factors of the exegetic
test prescribed in Barker v. Wingo, supra.
Assertion of the Right
The record is replete with demands for a speedy trial and
motions to dismiss for lack thereof. The only evidence
contradicting those express demands is of a subtle nature
which will be discussed with the reasons for the delay. While
we have given the assertions the “strong evidentiary weight”
to which they are entitled “in determining whether [Jones]
was deprived of the right,” Barker, supra, 407 U. S. at
531-532, we will discuss that weight in more appropriate
context.
Prejudice
Appellant contends that three favorable witnesses, who
would have been available at an earlier trial, were
unavailable at his trial because two had died and one was
missing. This is indeed a strong factor in appellant’s favor.
“If witnesses die or disappear during a delay, the prejudice
is obvious.” Barker, 407 U. S. at 532.
In Epps v. State, 275 Md. 96 at 120, while discussing
“prejudice”, the Court of Appeals reflected upon testimony
lost due to the delay:
“Although admittedly speculative, the testimony of
[the missing witness] might have been sufficient to
aa generated a ‘reasonable doubt’ as to [Epps’]
guilt.”
26a
We cannot conceive that the Court of Appeals intended to
create a compelling presumption in favor of an accused who
lays claim to a lost witness, that such testimony would he
exonerative. For such allegation to weigh so heavily in
appellant’s favor we must accept without question the
unsupported allegation 1) that the testimony would have
been favorable and 2) that the witnesses would have been
available but for the delay.? Even by adjusting the scale so
favorably in appellant's favor (without the ballast he failed
to provide) we perceive a missing ingredient. For the
witness's absence to weigh so against the State, it is implicit
that the delay must have been the fault of the State. We
express our view prefatorily that none of the delay was
solely attributable to the State by way of either neglectful or
intentional procrastination.
In considering prejudice, we are additionally admonished
by United States v. Marion, 404 U. S. at 320 to consider not
only prejudice to his defense but whether the delay would:
“ . . seriously interfere with the defendant's
liberty, whether he is free on bail or not, and. . .
disrupt his employment, ... curtail his associ-
ations, subject him to public obloquy, and create
anxiety in him, his family and his friends.”
Strunk v. United States, 412 U. S. 434, 439 recognizes that
some of these factors may carry different weight where
defendant is incarcerated after conviction in another
jurisdiction. But even then prospects for parole and
meaningful rehabilitation must be considered. While
awaiting trial, appellant had been sentenced for an escape
after his arrest and, by his own admission, had also been
sentenced to 30 years by the federal court. There is nothing
to indicate that these recently imposed sentences were
subject to parole nor was it argued or alleged that parole
was delayed by this case. Appellant’s own attorney
2. Appellant's testimony that the deaths occurred in 1973 is our only
guide as to the date to which the loss was attributable.
27a
recognized this when he wrote appellant in November of
1974:
“I cannot believe that since your freedom does not
at the moment hinge on the outcome of this
litigation that the inconvenience of a couple of
weeks is the real purpose behind your letter of
October 25, 1974.”
Barker also recognizes that the factors discussed in Marion
are more serious for some than for others but inevitably
present in all cases, because every defendant will be
restricted either by incarceration or bail. Jd. at 537. Here,
however, as we have noted, appellant was serving other
sentences and the restriction was implicit with or without
the delay.
The Reasons for the Delay
(The Record)
Soon after appellant was arrested on July 12, 1972 he
escaped. He was returned near the end of the month by F.
Lee Bailey, Esquire, the first of a procession of attorneys,’
3. The cover of the docket in this case lists the following counsel for
Jones, apparently in order of their ce: Robert H. Frank, William
H. Murphy, Jr., F. Lee Bailey, Gerald Alch, Gerald Kroop, Stephen L. Miles,
Stanley Needleman, William Carrier.
The following is a partial list of docket entries relating to Jones’ legal
representation:
8/21/72 - Order to enter the appearance of Stephen L. Miles.
10/13/72 - — to enter the appearance of F. Lee Bailey and Gerald
; Alch.
10/13/72 - Urder to enter the appearance of Gerald Kroop.
1/15/73 - Order to enter the appearance of William H. ushe. Jr.
1/22/73 - Order to strike appearance of Stephen L. Miles.
6/7/73 - Order to enter the appearance of Robert H. Frank.
9/6/73 - Order to strike the appearance of Stephen L. Miles.
Robert H. Frank aqgenees as counsel for Jones on a number of motions
filed up to 5/15/74. 5/25/74 a hearing was held for the purpose of
determining who Jones’ counsel was. At that hearing Jones stated that
Stephen L. Miles was his only attorney.
6/19/74 - Order striking Frank as attorney.
6/26/74 - Oral appointment of William W. Carrier.
At trial, Jones was represented by F. Lee Bailey with William W. Carrier
as local counsel. However, during the course of the trial Jones repeatedly
demanded different counsel.
28a
hired and fired at random, and was indicted on July 27, 1972.
Within three weeks the first of a series of local attorneys
entered his appearance and the out-of-state law firm to
whom appellant had surrendered himself wrote the State's
Attorney requesting an extension on the deadlines for
pre-trial motions set for the middle of the following month.
Since appellant’s motions for discovery, to suppress
evidence, to disqualify the judge and for a jury trial were not
filed until December 1, 1972, we assume the State acquiesced
in that extension. Along with these ‘motions appellant
included a demand for speedy trial.
The State elected to proceed first on the escape charge.
The case was decided (presumably on plea) in January of
1973. In the meantime, a motion was filed for change of
venue. This motion is significant only in its characterization
by the State as a delaying tactic “contrary to the express
written agreement of the parties that the case would proceed
on or after January 8th, without further delay. The Escape
case is now set for January 9, 1973. The State vigorously
opposes any delay.”
1973 having thus begun with appellant’s trial for escape,
there followed closely the filing of several motions by
appellant, the striking of appearance by one of appellant’s
lawyers and the ertry of appeararce of another. During tne
next two months of the year, the only apparent activity
which followed the trial for escape seems to have been a
hearing in oper court on appellant’s motion to suppress
evidence, which was overruled on April 9, 1973.
The trial was set for June 25, 1973. However, on May 25,
1973, presumably because of the confusion surrounding the
many lawyers representing appellant,‘ a hearing was held.
“THE COURT: Mr. Jones, stand up. The reason
for bringing you to court today is to find out who is
your lawyer. You change lawyers faster than |
4. The record is not clear to what extent the eight in-and-out coun-
sel participated or were manipulated by this court-wise defendant in
the obvious ploy of utilizing dilatory devices of repetitious pleadings and
hindrance by confusion of eight lawyers going in different directions when
they weren't striking their appearances, reentering appearances or
defending themselves.
29a
change hats, and I want to know who is your
attorney that represents you in this case? ”
Ironically, appellant indicated that his only attorney in the
case was Stephen Miles who had been permitted to strike his
appearance after petition and an order signed January 18,
1973. Appellant renounced all other counsel, several of
whom were present and moved to be permitted to withdraw.
Nothing in the record shows that any counsel not then
present were so authorized. It later becomes clear that
several stayed on.
For reasons not completely clear from the record, but
presumably because the State deferred to the federal courts,
the June 25, 1973 trial date was not honored in spite of a
hearing judge’s observation that the State trial had
precedence. We do know from appellant’s own testimony
that the federal case against him continued for six weeks
during the summer of '73, bringing us toward the end of
summer.
As fall approached, Stephen Miles, who had participated
in the defense of appellant in the federal courts, again struck
his appearance. This time the record provides a glimmer of
light on the “circumstances” surrounding that episode which
clearly contributed to the succeeding delay. From the
pleadings and exhibits submitted by appellant, it is clear
that two of appellant’s counsel became personally embroiled
in accusations of attempting to bribe an assistant State’:
Attorney relating to their defense of appellant, for which
they were subsequently indicted and tried. Miles was
indicted in July of 1973 and tried in March of 1974.5 Frank
was tried in February of 1973. Miles’ motion to strike his
appearance on September 9, 1973 recites indicia of animosity
between him and his co-counsel. Frank arising from
accusations and counter-accusations of the bribe attempts
5. As inferential evidence of the disruptive nature of these proceedi
there was at least one subpoena in the record demanding the court records
of sic onse and the ensage sane for Descenber 8, 1973 for the trial of State v.
Miles. It should that Mr. Miles was not found to be guilty of the
offense charged.
30a
stemming from their representation of Jones.* Miles’
appearance was struck. Frank and others stayed on.
In November of 1973 Frank again moved for a speedy trial
for Jones; however, there is an indication even here that
appellant did not desire that which he formally prayed. In
acknowledging a trial date set for February 26, 1974, Mr.
Frank included a statement that he did not waive his speedy
trial motion of November 11, 1973. A letter from the State’s
Attorney to Mr. Frank clearly indicated that the State was
given informal assurances that the speedy trial issue would
not be pressed, notwithstanding the procedural prods of
renewed motions and written expressions of non-waiver for
the record. The letter dated January 9, 1974, a copy of which
went to the court, said in part:
“I note with some chagrin your reference in your
January 7th letter that you do not waive any
speedy trial motion that was filed on behalf of Mr.
Jones. My recollection of various conversations
with you in the Court House in Baltimore County
was that you were not necessarily concerned with
the trial of the Jones case but only in plea
negotiations. In fact, at one time you indicated that
you would be more than happy to accept a stet in
the case of Mr. Jones providing the State would
return the money seized from him at the time of his
arrest. Of course, you will remember at that time I
told you to give an appropriate four letter word
greeting to Mr. Jones in response to that demand.
At other times during these conversations, your
only request was that in any trial that the State
Nol Pros the proceeding against Mr. Strickland so
that you would not have a potential conflict of
interest with your representation of Messrs. Jones
and Strickland. In view of possible motions that
6. See Maryland St. Bar Ass'n v. Frank, 272 Md. 528 in which Frank was
disbarred effective November 7, 1974, for admitting payment of $3,000 to a
ty State’s Attorney, Stuart Hirsch (see Md. St. Ass'n v. Hirsch, 274
Md. 368) in order to influence the outcome of a case then pending.
3la
may be filed and in view of confusion concerning
the representation of the defendants in this case, I
am requesting Judge Proctor to set a pre-trial
hearing date before the Court at which time all
pre-trial motions would have to be filed and a final
ee of representation by counsel be
made.”
While not conclusive of defense procrastination, chat
letter first gave voice to what appears implicit throughout
the record. Although appellant’s continued demands for
speedy trial clearly preserve the issue, and are entitled to
strong evidentiary weight, Barker, supra, 407 U. S. at 527, as
with any evidence the weight given it “... must be
considered together with such other circumstances as may
be relevant.” Barker, supra, 407 U. S. at 533.
An additional delay was explained by Judge Kenneth C.
Proctor in a letter to counsel explaining the necessity for
postponing the February 26, 1974 trial date. The letter said:
“Sometime ago I scheduled the above captioned
case for trial commencing on February 26, 1974, at
that time anticipating that there would be no
problem in making a Judge available for the trial of
this case.
However, with the trials of cases resulting from
the investigation of the State’s Attorney’s Office, it
has been necessary for us to send a Judge into
Baltimore City, in exchange for the Judge from the
Supreme Bench who must come out to Baltimore
County, to preside at the trial of such cases. This, of
course, leaves us shorthanded for the trial of cases
in the regular assignment. In addition to this, at the
time you made your request, Judge Walter R.
Haile, who is handling the Criminal Jury as-
signment this term, had already scheduled cases
to the end of March, so that I could not assign him
to the trial of the above captioned case.
For these reasons the above captioned case will
have to be removed from the trial assignment for
32a
February 26 and rescheduled for sometime during
the April Term of Court.”
The “investigation of the State’s Attorney's Office” is a
reference to a gubernatorial directive proclaimed on
November 13, 1972, Irvin v. State, 23 Md. App. 457, 458-59,
constitutionally authorizing the Attorney General
“_ _ to investigate the allegations of corruption of
public officials in connection with the arrest,
pending prosecution and escape of one John
Edward Jones, from the Baltimore County jail, and
to pursue any evidence of criminal violations or
administrative irregularities resulting from your
investigation.” Green v. State, 25 Md. App. 679, 704.
The very sketchy and discordant record (partially
attributable to the refusal of the trial judge to hear evidence
proffered by the State and appellant’s response) does not
disclose the extent nor the dates of this investigation. We
know of Miles’ indictment in July of 1973, and we know of
Frank’s disbarment effective November 7, 1974 for having
admitted payment of $3,000 on September 21 or 22, 1972, to
Deputy State’s Attorney Stuart Hirsch in order to influence
unlawfully the outcome of a case which may or may not
have been that pending against appellant and his
co-defendants.’ Maryland St. Bar Ass'n v. Frank, 272 Md.
528. Notwithstanding the failure of the State to provide us
with a record clearly setting out these dates and events, we
cannot close out eyes to that which is recorded for posterity
in our own opinions and in those of the Court of Appeals."
On December 4, 1974, appellant was finally brought to
trial in the Circuit Court for Baltimore County. However, a
motion for change of venue was filed by appellant and
granted on December 5, 1974. The trial was transferred to
7. That was denied by Frank; however, the entire investigation was
founded upon that assumption. See Green, supra, 25 Md. App. at 704.
8. There 1s some authority that we might have sought court records and
statisties even beyond a ate opinions, Davidson v. Miller, 276 Md. 54, n.
7 but we decline to do so, fearful of the encompassing precedential effect.
33a
the Circuit Court for Calvert County to
December 11, 1974. : rye rhad
On the day of trial in Calvert County, appellant made
every effort to keep it from being tried, including another
attempt to fire counsel and hire another. He asserted flat out
that he was not prepared to proceed and offered every
conceivable reason for further delay. He even had the
audacity to ask for time to “think of something else.”
“THE DEFENDANT: First of all, your Honor, I
ain’t prepared to go to trial for this case. I’ve been
putting in for a speedy trial for two and a half
years and I didn’t even know I was coming to Court
today, the trial was coming to Court today and I
ain't seen F. Lee Bailey for two and a half years. He
ain’t investigating the case properly. I've got three
hundred and some witnesses I'd like to call in this
case. I don’t know what the State’s Attorney
talking about he’s going to rush this case in three
days. He’s going to railroad me. He’s going to
railroad me right. He railroaded me once in Federal
Court on the same charge and I got thirty years for
it, so if you're going to railroad me in three days,
just railroad me in three days. I’ve got three
hundred and some witnesses to call. If he can call
the Police here to testify against lies, I can call
witnesses to counteract the Pelice to testify against
_ me, my witnesses. My witnesses are all over the
United States. I ain’t even got Subpoenaes or
nothing to call them. It might take three days to get
one of them here.
wee BOWEN: Anything else you've got to
say?
THE DEFENDANT: Yes, sir. I ain’t prepared to
go to trial and I'd like to call my witnesses on open
Court motion before the trial starts.
JUDGE BOWEN: Anything else?
THE DEFENDANT: I'd like to have a recess so I
can think of something else and read my file.”
34a
With two of his lawyers by his side, appellant initially chose
to conduct his own defense, complaining that he no longer
wanted to be represented by the counsel present, F. Lee
Bailey and William Carrier, but had only recently decided to
hire another, “Jeff Hoffman.” Appellant’s continued protests
and interruptions became so disruptive that the judge, after
repeated warnings, had him first shackled and gagged, then
manacled, and finally removed from the courtroom only to
be permitted to return when he agreed to conduct himself
decorously. At every opportunity, however, he repeated that
he was not prepared for trial.
“Q All right. Do you have anything else you want
to tell the Judge about the Speedy Trial Matter?
A Not other than I just been trying to come to
Court for this two and a half years and every time
they postpone it, it is the State’s fault. And then
they rush me today and I wasn’t prepared to come
to trial.”
The Reason for the Delay
(Conclusions)
As is obvious from the facts as briefly outlined, the delay
in bringing Jones to trial can be laid to both the State and to
the defense, notwithstanding the appearance that “This
period of delay resulted solely from the prosecutor’s tactical
decision .. . and the passive cooperation of the court with no
heed being paid to ([Jones’] unequivocal request. ...” See
Epps, supra, 276 Md. 96. The root cause of the delay here,
however, was not solely “governmental action.” Although
nearly all postponements were initiated by the State * (which
. Twie lant acknowl in his brief that “Defendant Jones
ote © ee ie speedy trial right from June of 1974 forward until
November 18, 1974, in order that counsel of his choice could be
present... .” in light of his previous letter of April 5, 1973, this might be
construed to be rather a broad reaffirmation of the forward waiver “until
such time as the court is notified to the contrary,” than to be limited to the
tponement sought .. the same telegram as appellant would have us
lieve. Exhibits of correspondence indicate a postponement from
November 18, 1974 to December 2, 1974, when the trial was begun in
Baltimore County. It was removed after mistria] on appellant’s motion
and tried in Calvert County on December 11, 1974, within a week.
35a
includes court action, see Epps, supra, 276 Md. 96) that
naked fact overlooks the underlying cause of the delay, and
is otherwise counterbalanced by expressed efforts of both
prosecutor and court, tu bring the case to trial. Delays
caused by other trials of appellant and of appellant's
attorneys cannot be weighed against the State especially
when the priority given is so obviously to effect justice
rather than to obtain a prejudicial advantage. We are bound
by the Court of Appeal’s holding that overcrowded courts,
and inferentially court congestion, is not a neutral reason
for excusing a delay. Epps, supra, 276 Md. 96. But when that
congestion is traced back to the defendant's doorstep, the
confusion of clearing out the corruption brought to light by
actions of his own lawyers is a far cry from the “tactical
decision” of the prosecutor in Epps, “to try the defendants
jointly.”
A substantial part of the delay related to the indictments
and trials of appellant’s attorneys and the State’s Attorneys,
part was occasioned by other trials of appellant, and part
was at the behest of appellant's counsel. All of these were in
large measure beneficial safeguards helping to assure
appellant of obtaining a fair trial. The reason for the
investigation of the prosecutors, as well as his own counsel,
regardless of its unrelated result, provided a degree of
assurance that he would be fairly tried and fairly
represented. Whether or not that is what appellant wanted,
it is that only to which he was entitled. Tipton v. Warden,
Maryland House of Correction, 28 Md. App. 206. The speed
of coming to trial varies with the circumstances of each case.
“However, in large measure because of the many
procedural safeguards provided an accused, the
ordinary procedures for criminal prosecution are
designed to move at a deliberate pace. A
requirement of unreasonable speed would have a
deleterious effect both upon the rights of the
accused and upon the ability of society to protect
itself. Therefore, this Court has consistently been of
the view that ‘The right of a speedy trial is
necessarily relative. It is consistent with delays and
36a
depends upon circumstances. It secures rights to a
defendant. It does not preclude the rights of public
justice.’ Beavers v. Haubert, 198 U. S. 77, 87, 49
L.Ed. 950, 954, 25 S. Ct. 573. ‘Whether delay in
completing a prosecution ... amounts to an
unconstitutional deprivation of rights depends upon
the circumstances.... The delay must not be
purposeful or oppressive,’ Pollard v. United States,
352 U. S. 354, 361, 1 L.Ed.2d 393, 399, 77 S. Ct. 481.
‘(T]he essential ingredient is orderly expedition and
not mere speed.’ Smith v. United States, 360 U.S. 1,
10, 3 L.Ed.2d 1041, 1048, 79 S. Ct. 991.” United
States v. Ewell, 383 U.S. 116, 120.
That appellant was at the vortex of this unique corruption
investigation is a circumstance peculiar to this case. Faced
with the unprecedented gubernatorially mandated corrup-
tiog, investigation of both prosecutors and defenders of
the accused, the State had two alternatives. It could press
for Jones’ trial in spite of the investigation and indictments
so closely related to it and thus provide Jones with the speed
to which he claims entitlement; or, it could chance delay and
ferret out the truth, assuring Jones as well as society that
whatever the result of the trial, it was not conducted under a
cloud of corruption. Jones was entitled to a fair trial and a
speedy one. It was clear that the State could not assure him
of both. Between “these nice sharp quillets of the law,” the
State sacrificed speed for certainty of fairness, an assurance
that enured to the benefit of appellant. We can more readily
assess responsibility for the period of delay between the
bribe in September of 1972 and the disbarment of Frank in
November, 1974, against Jones than we can charge it against
the State. Of the two, the State’s motives seem less
impugnable. At worst we find the circumstances a “neutral”
one.
We could hardly be expected to hold the State solely
accountable for that portion of the delay attributable to the
investigation and peripheral confusion. The proportion of
fault attributable to society's attorney as cause for the delay
is no greater than, if as great as, that attributable to
37a
appellant’s attorneys. As persistent as Messrs. Frank and
Miles were in their demands that Jones be tried speedily, it
was their conduct which brought on the delaying
investigation, albeit, it was “ordered” by the State
(governor). Jones, however, would “hold with the hare and
run with the hound.” He clutches to their assertions of the
speedy trial on his behalf, but denies responsibility for their
contribution to the cause of delay.
On April 5, 1973 F. Lee Bailey's office wrote the court
indicating that the “defense does not demand an immediate
trial until such time as the court is notified to the
contrary.” '° The following month Jones represented to the
court that he was going to fire all lawyers except Miles.
Evidence from later correspondence of Bailey appear to
support that result both by his letter of October 14, 1974 and
Alch’s telegram on June 26 which purported to “enter”
Bailey's appearance. However, neither Bailey nor Alch ever
struck their appearance first entered in the summer of 1972.
They neither sought leave to withdraw nor did the court
provide such leave pursuant to Md. Rule 751. Although
Bailey and Jones were apparently at odds, it was Bailey who
was ultimately present to represent Jones at his trial and
still on this appeal. It was also he who once again requested
a postponement when the June 26, 1974 trial date aborted
and was to be reset for November 18, 1974. This was
performed by Mr. Alch of Bailey's office who concluded the
telegram requesting postponement with the sentence that
“Jones has agreed to waive his right to a speedy trial.” "'
Interspersed throughout the entire period before and after
these apparent waivers were sent, are demands for speedy
trial by other lawyers who came and went before the final
trial date, and by Jones himself; however, the record
10. Mr. Bailey attempted to the effect of that letter as a waiver
by explaining the circumstances which gave rise to it. He explained that he
too had been indicted — in Florida — and having filed a motion for speedy
trial himself was compelled to stand ready in his own defense. Although the
explanation was commendably frank, we may not consider its weight since
it was no part of the record by stipulation or otherwise.
11. A third deferment was obtained by Bailey who uested a
postponement of the November 18, 1974 trial date for two weeks by his
letter of October 14, 1974 abovementioned.
:
:
’
|
38a
continued to reflect Bailey’s continued appearance and the
standing waiver “until notified to the contrary.” Bailey's
renewed waiver in June (through Alch's telegram)
interpretatively supports the appearance of a continuing
waiver by counsel of record. Whether or not this pattern of
conduct was “manipulated by Jones we know not. It is
apparent that he has sought the advantage of it through the
very lawyer who sang the Siren's song, luring the State to
founder upon the rocks of delay. If the positions represented
by Bailey's office were not waivers, they were rep-
resentations of record which together with the other
“circumstances” substantially remove from the State some
of the onus of delay.
There is also evidence in the record that a portion of the
delay was caused by plea negotiations engaged in by Jones,
‘his attorneys, and the prosecutors. The “circumstance”
surrounding the January 9, 1974 correspondence above
quoted was clearly that some plea bargaining was being
carried on at least up to that time. This is supported
subsequently by a motion filed charging a violation of a plea
bargain. Although we are told that overcrowded courts “may
not be a ‘neutral’ reason for delay,” clearly plea negotiations
are attempted not only by the State for the benefit of
society, but by the accused for his own purposes as well.
Neither plea pegotiations, the representations of counsel
of record, confusion by repeated hiring and firing of counsel.
the corruption investigation, related trials in other courts,
nor the resolution of the procedural motions, as a single
factor, even when carri&i on over a prolonged period, may
condone an excessive delay in coming to trial. Two and
one-half years has the appearance of prejudice even where
an accused must be dragged to trial kicking and screaming
as was Mr. Jones. Yet where such delay may not be readily
forgiven, circumstances (which alter every case) may permit
that it be excused.
The Barker Result
In Barker, supra, 407 U. S. at 535, the Supreme Court
concluded upon review that “Barker did not want a speedy
39a
trial,” and it declined to reverse his convictic.: in spite of a
five year delay. The Court surmised that:
“The probable reason for Barker's attitude was that
he was gambling on Manning’s [a co-defendant]
acquittal. The evidence was not very strong against
Manning, as the reversals and hung juries suggest,
and Barker undoubtedly thought that if Manning
were acquitted, he would never be tried.”
(Emphasis added).
The Court does not spell out to us the reasons for their
conclusion. The opinion merely tells us that:
“ _. the record strongly suggests that while he
hoped to take advantage of the delay in which he
had acquiesced, and thereby obtain a dismissal of
the charges, he definitely did not want to be tried.”
(Emphasis added). Jd. at 535.
The record here also “strongly suggests that [Jones] hoped
to take advantage of the delay” to which his actions and the
actions of his lawyers had contributed (if not caused) and
thereby obtain a dismissal of the charges. It further not only
“strongly suggests” but rings out the message that Jones did
not want to be tried. Our suspicion is raised not only by
Jones’ apparent manipulation of the legal counsel
representing him, nor by his involvement in pending
negotiations, but also by his own proclamation when he
eventually came to trial that he was not yet ready for it even
then.
In May of 1974 Jones filed motion upon preliminary
motion, some new and some seemingly repetitious, all of
which required considerable time to respond properly or
hear. Among these were motions for dismissal (for lack of
speedy trial among other grounds), particulars, exculpatory
evidence, inspection of grand jury minutes, severance (which
was granted), etc. The content of some of the motions, such
as the ones related to discovery, indicate preliminary
preparations and negotiations being attempted by the
defense which simply are not in concert with his persistent
40a
formal demands for speedy trial.'"* But even more
compelling is the correspondence from out-of-state counsel
expressly negating demands for speedy trial. The delays
attributable to Mr. Bailey’s office request were concededly
recognized, if not condoned by appellant in November of
1974. The intermittent hearings on the plethora of motions
filed by his attorneys from time to time were alsu
“procedural safeguards provided an accused.” Ewell. supra,
383 U. S. at 120. Appellant’s many legal gladiators obviously
differing in the use of the constitutional right to speedy trial
used it alternately first as a sword then as a shield. “Delay is
not an uncommon defense tactic” Barker, 407 U. S. at 521,
and appellant used it to the very end when, after an aborted
trial December 4, 1974, he continued his avalanche of
motions including a motion for psychiatric evaluation and a
successful effort to have the case removed to its final situs in
Calvert County.
As to the State, we found not one scintilla of evidence that
the delay was intentionally “purposeful or oppressive,”
Pollard v. United States, 352 U. S. 354, 361, nor even that it
was negligent which is “{a] more neutral reason... .”
Barker, supra, 407 U. S. at 531. The record shows continued
activity; the delays were at varying stages acquiesced in and
contributed to by appellant.
Upon most appeals a reversal means a remand for a new
trial, but
“[t}he amorphous quality of the right [to a speedy
trial} ... leads to the unsatisfactorily severe
remedy of dismissal of the indictment when the
proceed immediately. For example, discovery may, and often does i
the basis for the course of a defense which men nat be anned antl the
to go to
proceed expeditiously (within a reasonable time) after the v
motions are decided. What i ,
ae J + ~- 2 Lape thereafter would also vary with
‘
4la
right has been deprived.” Barker, supra, 407 U. S.
at 522.
When the nature of the remedy so enhances the potential
danger to society, we must be especially careful not to
permit legal fictions to obscure our common sense. If we
‘close our eyes to what is there because by its nature it is
difficult to discern or to articulate — or because it was not
transcribed in a simple record for easy review — the only
alternative is the serious consequence of a criminal fairly
convicted on abundant evidence that will be freed with a
recidivistic potential made more likely because he “beat” the
charge.
The lingering question we must answer in the face of
appellant’s repeated demands is, whether the State
discharged its “constitutional duty to make a diligent,
good-faith effort to bring him ... [to] trial”? Smith v.
Hooey, 393 U. S. 374, 383. Our unequivocal answer is yes
II
Appellant next contends that the court erred in denying
his motion to dismiss on the basis of collateral estoppel. The
short answer here (contrasting our prolonged speedy trial
analysis) is simply that the record does not provide us with
evidence that the issue litigated in the federal court is the
same as that here determined. Appellant's prosecution
below was for acts committed on July 11 and 12 of 1972. He
asserts in hie brief reliance upon an acquittal in the summer
of 1972 for a similar offense “on or about July 31, 1972.”
Siuce both charges had at their base possession of narcotics
on dates over three weeks apart, we fail to see the logical
application of the double jeopardy offshoot — collateral
estoppel.
Ill
Appellant's third assignment of error is meritorious. A
conviction of simple possession of heroin charged in count 2
merged with the conviction of possession of a sufficient
quantity reasonably to indicate an intent to distribute in
2 ea ee
42a
count 1. We will, therefore, vacate the verdict and sentence
of the lesser charge, Gray ». State, 10 Md. App. 478, which
sentence was concurrent in any event.
IV
Appellant's initial requests for instructions were not in
the record. His description of the request denied, of which
denial he complains, is included by way of objection
following the instruction:
“Mr. Bailey: May it please the Court, may the
record show that prior to the giving the charge to
the jury I presented a number of instructions, all
was given save one and that one was that the
instructions of the Court are the sole and exclusive
source of the law and the jury may find the law
from no other source than the instructions of the
Court and that they are absolutely obligated to
follow those instructions, particularly those of
constitutional dimension; the most important of
which in all the circumstances of this trial is the
impermissible nature of drawing an inference from
the silence of the Defendant; a right upon which the
Court has spoken very clearly.”
It is manifest in the request so described that appellant
objected to the court’s instruction pursuant to our unique
State Constitutional procedure in Section 5 of Art. XV which
reads:
“In the trial of all criminal cases, the Jury shall be
the Judges of Law, as well as of fact, except that
the Court may pass upon the sufficiency of the
evidence to sustain a conviction.”
It thus becomes clear that the instruction to which exception
43a
jury and may not find it otherwise is correct. Mr.
Bailey and counsel for the State discussed this
matter at length when the instructions were
discussed. He reyuested in the instructions that this
be given. The Court indicated at that time we would
not give the instruction but would give him an
exception at the conclusion of the charge, both to
the Court’s refusal to give it in the original
instructions and to now refuse to go back and now
give it as an amended instruction.
The Court understood precisely -the material
which Mr. Bailey requested and we think that the
exception should and is intended to preserve for all
appropriate appellant review the issue of whether
or not such instruction would violate the
Defendant's right of’ the United States’ Court
{Constitution].”
is taken is that portion saying:
“Now you are advised that this does not mean
that you are free to make law or change the law or
to find it as you think it was yesterday or will be
tomorrow or ought to be today. Your responsibility
to the best of your ability is to determine what the
law at the present time is insofar as it pertains to
the matters before you in this case and you apply
that law, as you find it to be, to the facts as you
find them to be. Therefore, everything the Court
says to you in these remarks is advice only. You are
not obliged to follow it and counsel should they wish
to do so will be permitted to argue to you that the
law is other than as the Court advises you it is.
—<-——-——-- —-- --
Unquestionably the judge understood that to be the case: Parenthetically we note, then, that it was clearly
“JUDGE BOWEN: For the purposes of the understood that the question sought to be preserved and
record, what Mr. Bailey says about the instruction presented to us is that expressed by appellant in his brief,
which he requested; that is, that the law as the Le:
Court gives it is binding and mandatory upon the “Whether the Maryland Constitution establishing
44a
the jury in a criminal case as judge of law as well
as fact and the judge’s charge to that effect is vio-
lative to federal constitutional due process require-
ments binding upon the states.”
The pains to which we have gone in setting out the
question serve a twofold purpose. First we accept head-on
appellant’s renewed attack on Section 5 of Art. XV.
Secondly, we make it quite clear that appellant did not ask
that the jury be instructed that its role as judges of the law
carried with it no right to pass on constitutional matters, cf.
Hitchcock v. State, 213 Md. 273, or to withhold constitutional
safeguards. See Md. Rule 756 f and g. It is because
appellant’s argument necessarily presupposes that the
jurors rejected the constitutional safeguards of which they
were advised, that we have pinpointed his attack as a frontal
one against the jury’s role under the Maryland Constitution
and not a peripheral one asking for instructions of one or
more of the limitations upon that role as set out by the
Court of Appeals in Giles v. State, 229 Md. 370, 382-386.
Appellant made no such request below, nor does he indicate
any interest upon appeal as to what extent, if any, such
qualifying instructions should be granted upon request.
His argument is a most beguiling one but hardly
convincing. He contends that the instruction given the jurors
under Md. Constitution, Art. XV, Sec. 5 is a denial of due
process. He notes especially that one charged with so
heinous a crime as heroin distribution, and who comports
himself so reprehensibly in the courtroom as to require his
being bound, gagged and finally removed, can hardly expect
a juror to cloak him with the presumption of innocence when
he is told by the judge that the instruction to that effect is
advisory only. Such juror is expressly told, goes the
argument, that he is the sole judge of the law, therefore, he
is free not only to disregard the presumption of innocence
but also to lessen the State’s burden of proof from beyond a
reasonable doubt to a level of hardly requiring any doubt at
all.
Appeliant now argues that the “trend” of the Supreme
45a
Court decisions is firmly fixed in protecting the presumption
of innocence by strictly holding the State to its burden of
proof beyond a reasonable doubt throughout the trial. E.g..
Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed.2d 508.
Regardless whut our personal opinion of Art. XV, Sec. 5
may be, we are not the forum for change. Constitutional
change in Maryland must be initiated by the Legislature and
consummated by the people. Beyond that, in this State the
Court of Appeals is the final word on constitutional validity,
and that which it speaks binds us to the result. The Court of
Appeals has repeatedly spoken on this subject. The Supreme
Court has itself recognized this unique, if not archaic,
practice and by such express recognition approved it sub
silentio. The history of court review of this provision was
reviewed in an alembic for this Court by Judge Scanlan in
Wilkens v. State, 16 Md: App. 587, 604-605:
“The constitutionality of Article XV, Section 5
has been repeatedly upheld by the Court of Appeals
and by this Court. Slansky v. State, 192 Md. 94, 63
A. 2d 599 (1949); Giles v. State, 229 Md. 370, 183 A.
2d 359 (1962); Avey v. State, 1 Md. App. 178, 228 A.
2d 614 (1967); Lewis v. State, 2 Md. App. 678, 237 A.
2d 73 (1968); Avey v. State, 9 Md. App. 227, 263 A.
2d 609 (1970). Moreover, the Supreme Court of the
United States has had occasion to consider Article
XV, Section 5, but has failed to intimate doubts
about the constitutionality of the provision. In
Giles v. Maryland, 372 U. S. 767 (1963), the
Supreme Court dismissed an appeal which raised
this issue, along with others, for want of a
substantial federal question. See also Brady v.
Maryland, 373 U. S. 83 (1963), in which the court
discussed Article XV, Section 5 without questioning
its constitutionality.
The whole question was carefully addressed by
the Fourth Circuit, speaking through Judge
Sobeloff, in Wyley v. Warden, 372 F. 2d 742, 744
(4th Cir. 1967). In that case, the Fourth Circuit
46a
rejected Wyley’s challenge to Article XV, Section 5,
based upon a claim that the provision denied him
due process and equal protection of the law in
violation of the Fourteenth Amendment.”
The opinions of those two Courts of finality as we
expressed them, have not changed. As recently as 1974 both
Courts declined to review that question when it denied
certiorari in Bremer v. State, 18 Md. App. 291, 349-350, cert.
den. 269 Md. 755, cert. den. 415 U. S. 930.
Judgment affirmed except convic-
tion and sentence under count
2 vacated as merging with
the conviction under count 1.
_ Costs to be paid by the appellant.
Davidson, J., dissenting:
Upon my _ constitutionally mandated independent
appraisal of the record, I am persuaded that John Edward
Jones was denied his constitutional right to a speedy trial. |
respectfully dissent.
I. Length of Delay
Two and one-half years elapsed between Jones’ arrest and
trial. I agree with the majority that this delay was long
enough to require scrutiny of the interrelated factors
involved in the sensitive balancing process of determining
whether an accused has been denied nis right to a speedy
trial. |
II. Reasons for Delay
On 12 July 1972, Jones was arrested and taken to the
Baltimore County Jail. Almost immediately he escaped.
Upon the advice of F. Lee Bailey, an attorney, Jones
surrendered himself within a matter of days. On 27 July,
Jones, Kevin Darby, a/k/a Kevin Jones, Brenda Lou Pinkett
and Andrew Strickland were jointly indicted for narcotics
47a
violations (No. 44607) allegedly committed on 12 July. In a
separate indictment (No. 44609) Jones was charged with
escape. On 21 August, Stephen L. Miles, a local attorney.
entered his appearance for Jones. On 13 October, F. Lee
Bailey and his associate, Gerald Alch, out-of-state attorneys,
and Gerald Kroop, a local attorney, also filed their
appearances.
Ky 17 October, the prosecutor had made the tactical
decision to try the escape charge first. A trial date of 29
November was suggested. Alch objected to trial of the
escape charge before trial of the narcotics charges because
such action “would illegally prejudice the defendant.” He
asserted Jones’ desire for an immediate trial by asking that
the narcotics charges be tried first. He requested a change in
the suggested trial date, explaining that Bailey would be
unavailable.
On 25 October, the court, after setting deadlines for
pretrial motions, ordered that “trial of this case will be
scheduled no later than December 15, 1972.” No explanation
was utfered as to why a trial date was not then set. On 6
November, after extending the deadlines for pretrial
motions at Bailey’s request, the court reiterated that trial of
the narcotics charges would be scheduled no later than 15
December. No trial date was set. No explanation was
offered. By 1 December, Jones filed a flurry of timely
motions. No trial was held and no trial date was set on 15
December 1972. No explanation was offered.
The five month delay between 12 July and 15 December
1972 was not excessive and is attributable to the orderly
processes of the law, a “neutral reason” for delay. By 15
December the case was ready for trial, and the responsibility
to bring it to trial rested upon the State.
On 2 January 1973, Jones filed a motion for speedy trial
with respect to the narcotics charges, invoking his
constitutional right to speedy trial, entitling his case to
special attention which is something more than that
accorded by the “orderly processes of the law.” Nevertheless,
the orderly processes of the law moved on.
|
'
rs a
— OS DOD LL EO
48a
On 11 January, Jones then represented by Bailey, pled
guilty to the escape charge and was sentenced to a term of 13
months. No trial date for the narcotics charges was set. No
explanation was offered. On 15 January, William H
Murphy, Jr., a local attorney, entered his appearance and on
22 January, Miles struck his appearance. Notwithstanding
the fact that Jones was at all times represented by counsel
no trial date was set. No explanation was offered. On 5
April, Bailey indicated that because of his other
commitments, “ ‘-fense does not demand an immediate
trial until such as [the court is] notified to the
contrary.”
The three and one-! 'f month delay from 15
1972 to 5 April 1975 |\ted first from the Arcee
tactical decision, made ..er Jones’ objection, to try the
escape charge before the narcotics charges, and thereafter
from the State’s indifference and neglect in failing to set a
trial date, despite Jones’ motion for speedy trial. All of this
delay must be attributed to the State. While indifference
= — = wie neutral reasons than a deliberate
mp elay the trial, i
por bietey — al, delays caused by either must be
On 3 May, Jones was indicated for violation of federal
narcotics laws (C.A. No. 73-0268, D.C. Md.). No date was set
for trial of the narcotics charges pending in the State court.
No explanation was offered. On 25 May, notwithstanding
that Jones was then represented by Bailey, Alch, Kroop and
Murphy, a hearing was held, according to the court, to
determine who represented him. Miles, Kroop and Murphy
were present. The following colloquy ensued:
“THE COURT: Now, who is your atiorney that is
going to represent you in this case?
“MR. JONES: Steve Miles on that.
“THE COURT: Mr. Miles is to be your attorney?
“MR. JONES: Yes.
“THE COURT: Is he the only attorney that you
want to represent you?
49a
“MR. JONES: Yeah.
“THE COURT: Also Mr. F. Lee Bailey's
appearance has ten entered. Do I understand that
you don’t want Mr. Bailey to represent you?
“MR. JONES: No.
“THE COURT: Have you advised Mr. Bailey of
that election on your part?
“MR. JONES: Yes.
“MR. MILES: Your Honor, I have just shown the
State a copy of a letter Mr. Jones wrote in my
presence on the 22nd of May discharging him from
the case. I also spoke to Mr. John Truman of his
office yesterday and informed him of the provisions
of the letter and these proceedings.
“THE COURT: Mr. Truman was down here for
the hearing on the motions earlier, but the
appearance entered is Mr. Bailey and Gerald Alch.
“MR. MILES: I understand they were both
unavailable because they’re both hither and dither.
“THE COURT: But both of them are discharged
as counsel by Mr. Jones; is that correct?
“MR. JONES: Yes.”
Jones, having discharged Bailey and Alch because he “didn't
want [them] to keep holding this case up,” stated that he did
not want to be represented by Murphy and Kroop. Motions
made by Kroop and Murphy to strike their appearances,
were granted, but the appearances of Bailey and Alch were
not stricken. As a practical matter, thereafter Jones was
represented only by local counsel.' Because Jones had then
revoked his consent to further delay, the responsibility for
1. On 14 October 1974, Bailey acknowledged that he had been discharged
by Jones. The record shows that from 25 May 1973 through 26 June 1974,
Bailey and Alch were inactive in this case. All activities relating to it,
including the setting of trial dates, were conducted by the prosecutor
the court exclusively with local counsel, and without consultation or
participation by Bailey and Alch.
:
-.
50a
bringing the case to trial once again rested upon the State.
The one and one-half month delay from 5 April to 25 May
1973 is attributable solely to Jones.
At the 25 May hearing, the prosecutor announced that
co-defendant Kevin Darby had recently been killed. He
estimated that the narcotics trial would require only three
days. After determining that trial of the federal case had not
yet been scheduled, the court set the trial of the State
narcotics case for 25 June. No explanation was offered why
an earlier date was not chosen. On 7 June, Robert H. Frank,
a local attorney, entered his appearance as co-counsel with
Miles.
The trial set for 25 June did not take place. On 18 June,
only 46 days after Jones’ federal indictment, his federal trial
began. The trial ended on 21 July. Jones, who had been
represented at this trial by Miles, was convicted and
sentenced to a term of 30 years.
The nearly one month delay which occurred between 25
May and 18 June 1973 was an unexplained delay attributable
to the State. The one month delay from 18 June to 21 July
1973, caused by the federal trial, was caused by a neutral
reason. On 21 July, the obligation to bring Jones to trial was
- once again placed on the State. The orderly processes of the
law ground on. No trial date was set. No explanation was
offered.
On 6 September, Miles struck his appearance. Frank
remained counsel of record. On 14 November, Jones made
another motion for speedy trial. The orderly processes of the
4 continued. No trial date was set. No explanation was
offered.
A new trial date was set 26 December 1973, when the
prosecutor and Frank agreed upon a tentative trial date of
26 February 1974, subject to confirmation by the court. The
unexplained five month delay from 21 July to 26 December
1973 must be attributed to the State.
On 7 January 1974, Frank reasserted Jones’ desire for
speedy trial in writing, and said that his agreement did “not
waive any speedy trial motion that was filed in behalf of the
5la
Defendant and that. of course, we would like an earlier trial
date if at all possible.” On 9 January, the prosecutor stated
in writing that in view of the “possible length of the Jones
case” (previously estimated by the State to be three days),
the 26 February trial date should be retained to prevent
interference or delay in disbarment proceedings against
Frank, then set for hearing on 18 February. With respect to
speedy trial, the prosecutor said that from recollections of
conversations, he thought Frank was “not necessarily
concerned with the trial of the Jones case but only in plea
negotiations,” that he would, under appropriate
circumstances, “accept a stet in the case of Mr. Jones,” and
that his only request was that “the State Nol Pros the
proceeding against Mr. Strickland... .”
On 10 January, Frank reminded the prosecutor in writing
that he had filed a motion for speedy trial, which meant that
he “would like a trial at the earliest possible date,” and that
the prosecutor should not concern himself about possible
interference with Frank’s disbarment. He pointed out that
previous plea negotiations and requests for stet or nol pros
had no relevance to Jones’ right to speedy trial.
The two month delay from 26 December 1973 to 26
February 1974 must be attributed to the State. The
prosecutor's desire not to interfere with disbarment
proceedings against Frank, then set for 18 February, is not a
satisfactory explanation for the choice of 26 February, in the
absence of an explanation why Jones’ three day trial
could not have been held between 26 December 1973 and 18
February 1974. Under these circumstances the State’s
failure to accord Jones the earlier trial date he requested is
evidence of the State’s indifference and neglect with respect
to his right to a speedy trial.
On 7 February, Jones refused to agree to a postponement
requested by the prosecutor. The orderly processes of the
law continued. On 8 February, the court removed Jones’ case
from the trial assignment for 26 February, stating in
writing:
“Sometime ago I scheduled the above captioned
52a
case for trial commencing on February 26, 1974, at
that time anticipating that there would be no
problem in making a Judge available for the trial of
this case.
“However, with the trials of cases resulting from
the investigation of the State’s Attorney's Office, it
has been necessary for us to send a Judge into
Baltimore City, in exchange for the Judge from the
Supreme Bench who must come out to Baltimore
County, to preside at the trial of such cases. This, of
course, leaves us shurthanded for the trial of cases
in the regular assignment. In addition to this, at the
time you made vour request, Judge Waiter R.
Haile, who is handling the Criminal Jury as-
signment this term, had already scheduled cases
to the end of March, so that I could not assign him
to the trial of the above captioned case.
“For these reasons the above captioned case will
have to be removed from the trial assignment for
February 26 and rescheduled for sometime during
the April Term of Court.”
No new trial date was set for the April Term. No
explanation was offered.
The reasons offered by the court are unsound. No attempt
was made to show the status of any of the defendants in the
cases assigned on the criminal jury docket and whether any
such defendants had requested a speedy trial. No reason was
offered why one of those cases could not have been removed
from the docket so that the instant case could be tried. Even
assuming that the court was shorthanded, no reasun was
offered why, in a judicial circuit composed of 12 trial judges,
Jones’ case could not be set before a judge assigned to civil
cases. In short, the reasons given unequivocally added up to
no more and no less than the time-honored excuse of
“overcrowded dockets.”? Any delay resulting from
2. Jones v. State, 241 Md. 599, 611, 217 A. 2d 367, 375 (1966).
53a
postponement of the 26 February trial must be attributed to
the State.
On 27 February, the court took action. Once again the
orderly processes of the law were set into motion. Although
Jones had asked to have the narcotics trial before the escape
trial; had moved for speedy trial on 2 January 1973; had his
25 June 1973 State trial preempted by his federal trial; had
moved for speedy trial on 14 November 1973; had vigorously
asserted his desire for speedy trial in January, 1974; and had
his 26 February 1974 trial aborted because of “overcrowded
dockets,” the court did not set a trial date. Instead, it
scheduled an arraignment for 11 March 1974, at which “a
firm trial date” would be set. On 1 March 1974, Frank,
unable to attend the arraignment because of previous court
commitments, waived his and Jones’ right to be present in
order to avoid delay of the trial. He emphasized that he had
“heen pressing for a trial date in this case for some time and
would appreciate it if [he] would be notified as soon as one is
set.” No trial date was set. No explanation was offered.
On 22 April, the court ordered that motions be filed by 1
May and‘heard on 15 May. No trial date was set. No
explanation was offered. The two month delay from 26
February to 22 April 1974 must be attributed to the State.
At a hearing on 15 May, the court considered a number of
motions filed by Jones, many of which duplicated motions
previously filed and decided, and others of which could have
been filed earlier. The court, among other things, granted
Jones’ motion for severance and reserved ruling on his
motion to dismiss for lack of speedy trial, in which he
claimed substantial prejudice from the death of Kevin
Darby, who allegedly would have been able to prove his
innocence. A trial date of 4 June was set. No explanation for
this delay was offered. On 21 May, Jones prayed a jury trial,
and filed notice that there would be no stipulations. On 29
May, after a hearing, Jones’ motion to dismiss for lack of
speedy trial, among other things, was denied. Essentially all
other pending motions were resolved. Because most of Jones’
motions were duplicative or could have been filed earlier, the
~
54a
resulting one and one-half month delay from 22 April to 29
May 1974 must be attributed to him.
The trial set for 4 June did not take place. No explanation
was offered. By 14 June, trial was set for 26 June. The one
month delay from 29 May to 26 June 1974 must he attributed
to the State.
On 19 June, Fran
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.