Appendix — Carden v. Montana
Supreme Court brief1980
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{sx Supreme Court, U. S,
80-579 iz. FILED
NO. ____ OCT % 1980
$< ~, CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1980
JOHN J. CARDEN, a/k/a, JAMES J. CARDEN, and
GLORIA (EUSEK) CARDEN,
Petitioners,
vs.
THE STATE OF MONTANA,
Respondent.
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
WADE J. DAHOOD, ESQ.
Of The Law Office of
KNIGHT, DAHOOD, McLEAN &
EVERETT
113 East Third Street
Anaconda, Montana 59711
Telephone (406) 563-3424
Attorneys for Petitioners
I SSD
Washington, OC @ CLB PUBLISHERS e LAW PRINTING CO e (202) 393 0625
IN THE
Supreme Court of the Anited States
OCTOBER TERM, !980
NO.
JOHN J. CARDEN, a/k/a, JAMES J. CARDEN, and
GLORIA (EUSEK) CARDEN,
Petitioners,
VS.
THE STATE OF MONTANA,
Respondent.
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
WADE J. DAHOOD, ESQ.
Of The Law Office of
KNIGHT, DAHOOD, McLEAN &
EVERETT
113 East Third Street
Anaconda, Montana 59711
Telephone (406) 563-3424
Attorneys for Petitioners
Il
TABLE OF CONTENTS
Page
OPINION OF UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT........ Al-A6
MEMORANDUM AND ORDER
(United States District Court, Filed May 12,
duiicies PAERER ESET TE eee A7-A18
ORDER OF THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT .......... Al9
MEMORANDUM AND ORDER
(United States District Court, Filed July 26,
SOME Nea lne Levis tain bare | oe A20-A22
PETITION FOR WRIT OF HABEAS CORPUS AND
OTHER APPROPRIATE RELIEF AND
ATTACHED EXHIBIT “A”................. A23-A62
ANSWER TO PETITION FCR WRIT OF
HABEAS CORPUS....................055.. A63-A67
MOTION TO AMEND FINDINGS AND
JUDGMENT, AND MOTION FOR A NEW
nt snatcrsh CLT A re TE ee A68-A71
Al
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN J. CARDEN, a/k/a )
JAMES J. CARDEN, and )
GLORIA (EUSEK) CARDEN, )
)
Petitioners-Appellees, ) No. 78-3095
)
v. ) DC. No. CV-77-61-H
)
STATE OF MONTANA, ) OPINION
)
Respondent-Appellant. )
)
)
On Appeal from the United States District Court
for the District of Montana
Before: Goodwin and Farris, Circuit Judges and Taylor*,
District Judge:
FARRIS, Circuit Judge:
The State of Montana is appealing from the district court’s
grant of appellees’ pretrial petition for habeas corpus. The
district court found that appellees John and Gloria Carden
had been denied their constitutional right to a speedy trial
and that habeas relief was proper because the Cardens had
exhausted their state remedies. We reverse.
*The Honorable Fred M. Taylor, Senior District Judge for the
District of Idaho, sitting by designation.
I, FACTS
The Cardens were charged with crimes related to Gloria
Carden’s $5,000 worker’s compensation award. The in-
formation was filed on December 20, 1974. Because of a
lengthy procedural delay caused by the actions of both the
prosecution and the defense, the Cardens moved for a
dismissal alleging a violation of their constitutional right toa
speedy trial.
A Montana State trial court granted the Cardens’ motion.
but the Montana Supreme Court reversed. The Cardens then
petitioned the United States District Court for habeas
corpus relief. The district court ordered discovery and found
as a fact that the State had disqualified a state trial judge for
tactical purposes after he had been on the case for seven
months. The district court concluded that the State bore the
greater responsibility for the delay and that the delay had
prejudiced the Cardens. Accordingly, the court held that,
despite their own contribution to the delay, the Cardens’
constitutional right to a speedy trial had been violated.
The State conceded at the district court hearing that the
Cardens had exhausted their state avenues for asserting their
speedy trial claim prior to trial. Relying on this concession.
the district court concluded that pretrial federal habeas relief
was not inconsistent with the established principles of
comity and federalism which underlie the doctrine limiting
federal interference with state proceedings.
The State is now challenging the issuance of the habeas
writ on the ground that the district court, as a matter of
comity, should not have entertained the Cardens’ petition.
A3
II. DISCUSSION
The central issue is whether comity precluded the district
court from intervening, prior to trial, in the State’s criminal
prosecution of the Cardens. The State concedes that the
district court had jurisdiction, under 28 U.S.C. §2241, to
issue the pretrial writ of habeas corpus. As an exercise of
judicial restraint, however, federal courts elect not to
entertain habeas corpus challenges to state court pro-
ceedings until habeas petitioners have exhausted state
avenues for raising federal claim.
Where a petitioner seeks pre-conviction habeas relief, this
exhaustion prerequisite serves two purposes: (1) to avoid
isolating state courts from federal constitutional issues by
assuring those courts an ample opportunity to consider
constitutional claims; and (2) to prevent federal interference
with state adjudication, especially state criminal trials.’
Braden v. 30th Judicial Circuit Court of Kentucky, 410
U.S. 484 (1973). The Court in Braden reaffirmed the
established rule that federal adjudication of an affirmative
defense prior to a state criminal trial violated the second of
these two purposes and was thus prohibited by principles of
comity unless the petitioner could show that “special
circumstances”’ warranted federal intervention. Jd. at 489.
Prior to Braden, we adhered to this rule as a logical
implication of the abstention doctrine announced in Younger
v. Harris, 401 U.S. 37 (1971) which precludes federal
injunctions of pending state criminal prosecutions absent
'The Third Circuit described these two principles as **(1) the normal
requirement that state appellate courts be given the initial opportunity to
consider the federal constitutional claim; and (2) the teaching of
Younger v. Harris, 401 U.S. 37,91 S.Ct. 746, 27 L.Ed.2d 669 (1971)”
Moore v. DeYoung, 515 F.2d 437, 439 (3d Cir. 1975).
Ad
“extraordinary circumstances.” In Drury v. Cox, 457 F.2d
764, 764-65 (9th Cir. 1972), we stated that “only in the most
unusual circumstances is a defendant entitled to have federal
interposition by way of injunction or habeas corpus until
after the jury comes in, judgment has been appealed from and
the case concluded in the state courts.”
The Cardens have not demonstrated the type of “‘special
circumstances” which warrant federal intervention. The
“special circumstances’ exception to the general rule
against pre-conviction federal intervention was discussed by
the Supreme Court in a companion case to Younger v.
Harris.
Only in cases of proven harassment or prosecutions
undertaken by state officials in bad faith without hope of
obtaining a valid conviction and perhaps in other extra-
ordinary circumstances where irreparable injury can be
shown is federal injunctive relief against pending state
prosecutions appropriate.
Perez v. Ledesma, 401 U.S. 82, 85 (1971).
The Cardens maintain that the prosecution harassed
them by charging them with nineteen counts when only six
were required. The state courts dismissed the unnecessary
counts, and the Cardens are now seeking to avoid trial on
those six counts found to have been properly charged. The
district court concluded that charging the Cardens with too
many counts was “unfair,” but it did not accept their
allegation that this constituted harassment. Under such
circumstances, the filing of the multiplicious information
does not warrant federal pretrial intervention.
The Cardens also argue that the State’s use of the
Montana judge disqualification statute for tactical purposes
constitutes “‘special circumstances.’’ The district court
found that, by using the disqualification statute ‘n this way,
AS
the State was responsible for “deliberate delay’’ which
weighed heavily against the State in determining whether it
had violated the Cardens’ speedy trial right. This does not
satisfy the requirement that the Cardens show that the State,
by its use of the disqualification statute, prosecuted them in
“bad faith without hope of obtaining a valid conviction.”
While the “‘deliberate delay” finding may bear on the merits
of the Cardens’ speedy trial claim, it does not determine the
appropriateness of federal intervention.
Further, the Cardens have not shown how they will be
irreparably injured by waiting until after trial to assert their
speedy trial claim. We agree with the Third Circuit’s
conclusion in Moore v. DeYoung, 515 F.2d 437 (3d Cir.
1975) that, unlike the Double Jeopardy Clause, the Speedy
Trial Clause, when raised as an affirmative defense, does not
embody a right which is necessarily forfeited by delaying
review until after trial. This conclusion is supported by
United States v. McDonald, 435 U.S. 850 (1978) in which
the Court held that a federal district court’s denial of a
pretrial speedy trial motion to dismiss was not appealable
before trial because it lacked finality. Rather than requiring
pretrial review, the court in McDonald indicated that a
speedy trial claim is best reviewed after trial when the district
court’s dismissal is more conclusive and allegations of
prejudice are less speculative.
Because the Cardens have not demonstrated ‘special
circumstances” warranting federal interference with
Montana’s criminal prosecution, we need not decide
whether the state courts had sufficient opportunity to
consider the speedy trial claim to satisfy the first purpose of
the exhaustion doctrine identified in Braden. We note,
however, that the Cardens make the unsupported assertion
that *‘[t]here was no available procedure under the laws of
AO
the State of Montana by which the Cardens could raise the
constitutional questions presented.’ Although the State
does not rebut this contention, we are unconvinced in light of
the McDonald court’s discussion of the nature of the speedy
trial right, that the Montana state courts would refuse to
reconsider their rejection of the Cardens’ claim after the trial
has demonstrated the extent to which the Cardens were
prejudiced by the delay. Accordingly, the Cardens’ ap-
propriate remedy is to proceed to trial and thereafter raise
their speedy trial claim? if they wish to do so.
In reversing the district court’s grant of habeas relief, we
are neither rejecting the merits of the Cardens’ Sixth
Amendment claim nor totally denying them a federal forum
to assert it. We hold that under the circumstances before us,
federal interference with the state proceeding was premature
and thus inconsistent with the dictates of our federal system.
Reversed.
*Requiring the Cardens to stand trial before seeking a federal forum for
their speedy trial claim is consistent with the position taken by the
Second Circuit in United States ex rel. Scranton v. State of New York,
532 F.2d 292 (2d Cir. 1976).
A7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
IN THE MATTER OF THE _ )
APPLICATION OF: )
) CV-77-61-H
JOHN J. CARDEN a/k/a )
JAMES J. CARDEN and )
GLORIA (EUSEK) CARDEN, ) MEMORANDUM
) AND ORDER
)
FOR A WRIT OF HABEAS )
CORPUS
and )
OTHER APPROPRIATE )
RELIEF. )
I. FACTS.
Petitioners are State Court defendants charged by a six-
count amended information. The charges stem from alleged
fraud and conspiracy in connection with a Montana
Worker’s Compensation claim. The State criminal case was
dismissed in the State District Court because petitioners had
been denied a speedy trial. The Montana Supreme Court
reversed. State v. Carden, Mont. , ff
, 34 St. Rep. 420 (1977). The petitioners then filed an
application for a writ of Habeas Corpus in this Court,
seeking a direction to the Montana Court to dismiss the case.
A8
The petitioners’ motion for a stay of State proceedings under
28 U.S.C. §2251 was granted by order of this Court on
September 20, 1977.
On December 20, 1974, the attorney general of the State
of Montana filed an information charging the defendants in
State District Court. The information involved nineteen
counts. Judge Gordon Bennett took jurisdiction of the case.
On January 9, 1975, Judge Bennett recused himself and
Judge Nat Allen thereafter assumed jurisdiction at Judge
Bennett’s request. On February 10, 1975, the defendants
filed fifty-six motions attacking the information. A briefing
schedule was established, and subsequently twice revised on
motion of the State. |
On August 4, 1975, after the defense motions were briefed
and argued, and some seven months after Judge Bennett had
recused himself, the State moved to disqualify Judge Allen.
Judge Allen denied the motion but was thereafter dis-
qualified by an order of the Montana Supreme Court. Judge
Jack Shanstrom assumed jurisdiction on September 30,
1975. He was disqualified by the defendants on November 3
of that year.
On December 9, 1975, Judge Paul Hatfield assumed
jurisdiction. A hearing on the fifty-six defense motions was
set for February 4, 1976. Judge Hatfield subsequently
entered an order dismissing thirteen counts of tne in-
formation but granting the State leave to file an amended
information. On April 21, the State filed an amended
information charging six counts corresponding to the re-
maining counts in the original information.
Following a hearing on May 4, Judge Hatfield established
a pretrial schedule which contemplated a trial date of June
17, 1976. On May 11, 1976, the defendants moved to
dismiss the information for lack of a speedy trial. Twenty-
AY
five pretrial motions attacking the amended information,
plus a motion to sever the trial of Gloria Carden from that of
John Carden, were filed by defendants. On June 8, 1976, on
motion of the defendants, Judge Hatfield removed himself
from the case.’
Judge James Sorte assumed jurisdiction of the case. He
denied all pending pretrial motions attacking the information
but after hearing the speedy trial motion on July 28, 1976,
the amended information was dismissed for failure to grant a
speedy trial.
The State appealed the order dismissing the information.
The dismissal order was reversed, State v. Carden, supra.
Justice Haswell, writing for a majority of three, held that the
544-day delay between filing the information and the trial
date established a prima facie case of denial of a speedy trial.
However, evaluating the case in accordance with the
guidelines set forth in Barker v. Wingo, 407 U.S. 514
(1972), the Court found the prima facie case had been
rebutted. The Montana Court concluded that little of the
delay was actively attributable to the prosecution, noting
that the delay resulted “primarily from the exercise of
statutory procedural rights inherent in Montana’s criminal
justice system for which neither the state nor the defendants
are chargeable... .”’ 34 St. Rep. at 430.
While the reason for the delay was important, apparently
the crucial factor to the Court was defendant’s assertion of
his right to a speedy trial. The Supreme Court found the
defendants were unprepared for trial when the motion to
dismiss was filed and reasoned that such facts indicated the
defendants did not want a speedy trial. In its decision, the
'The motion was based on the fact that Judge Hatfield was then
campaigning for Chief Justice of the Montana Supreme Court.
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Court conceded that the delay had caused substantial
personal prejudice to the defendants, but found that the
reasons for the delay and the lack of assertion of the right
outweighed the prejudice.’
Il. EXHAUSTION.
Title 28 U.S.C. §2254 permits a person in state custody
to attack the custodial order of the state court in federal court
by means of a writ of habeas corpus. There are three
conditions precedent to jurisdiction under § 2254: (1) The
applicant must be “‘in custody”; (2) the custody must be
pursuant to a state court order; and (3) the applicant must
have exhausted all possible opportunities to raise the claim
at the state level.
The State does not deny that the petitioners are in custody
pursuant to a State Court order. It is admitted that for the
period from the date the original information was filed,
through the date Judge Sorte’s order of dismissal was
entered, the petitioners have exhausted their state remedies.
The basis of the exhaustion requirement is to allow state
courts to rule on constitutional claims arising from state
proceedings. See, United States ex rel. Scranton v. New
York, 532 F.2d 292 (2nd Cir. 1976). The Montana
Supreme Court has ruled that the delay from December 20,
1974, through June 28, 1976, did not deny the petitioners a
speedy trial. It has not ruled on a longer period, from
*In addition, the petitioners raise an equal protection claim, alleging
that the Montana Supreme Court denied them equal protection of the law
by affirming speedy trial claims in cases with shorter delays while
reversing the petitioners’ claim. This claim is without merit. Speedy trial
cases are necessarily decided based on their own facts. Barker v. Wingo,
407 U.S. 514, 528-29 (1972). It is not a denial of equal protection to
decide such cases on an ad hoc basis.
All
December 20, 1974, through August 8, 1977, the date when
the instant petition was filed. As such, consideration of the
speedy trial question is here limited to the period between the
filing of the state charge and the district court’s entry of the
dismissal order.
The State argues that this Court ought not to stay a
pending state court proceeding absent a showing of special
circumstances. While it is true that Younger v. Harris, 401
U.S. 35 (1971), and Moore v. DeYoung, 515 F.2d 437
(1971), stand for the proposition of federal abstention in
some cases, this case is distinguishable. In both the cited
cases, the petitioners had not exhausted their state remedies
before turning to federal court. Here, the State concedes that
all state remedies are exhausted for the period in question.
This concession is fatal to the State’s argument for
abstention and against the stay, since it necessarily implies
that the interest underlying the exhaustion requirement has
been vindicated. If no further state forum exists in which the
petitioner can present his constitutional claim, the State’s
interest in passing on constitutional questions arising from
state cases has been fully protected.
lil. SPEEDY TRIAL.
Sixth Amendment speedy trial claims are governed by
Barker v. Wingo, 407 U.S. 514 (1972). In the Barker case,
the facts reveal Barker and Manning were charged with a
homicide. Trial of the defendants was severed, the State
fearing that without Manning’s testimony a conviction
against Barker would be impossible. Manning was tried five
times over a period of more than four years before he was
convicted. Barker spent all but ten months of this time free on
bail. He was then tried and convicted. Barker failed to object
Al2
to continuances during the first three and one-half years of
the Manning case. Finally, on the twelfth continuance, he
objected and moved to dismiss for lack of a speedy trial. He
appealed his case through the state appellate system, and
then brought a federal habeas corpus action. The writ was
denied at both the district and circuit courts, and the
Supreme Court affirmed.
The Court rejected a rigid approach to speedy trial,
adopting instead a test which balanced four factors: (1) The
length of the delay; (2) the reason for the delay offered by
the government; (3) the defendant’s assertion of his speedy
trial right; and (4) the existence of prejudice. The Court
found none of these to be “a necessary or sufficient condition
to the finding of a deprivation of the right of speedy trial.”’
407 U.S. at 533. Rather, the Sixth Amendment requires
balancing of these and other relevant factors before a
decision on the question can be reached.
In Barker, the Court found the five-year delay from
indictment to trial to be substantial enough to trigger the
balancing process. The Court also found that the reasons
offered to justify the delay were not compelling. However,
the Court determined from the record that bad faith or malice
in the delays was nonexistent; no delay was purely for the
purpose of injuring the defendant’s case. The Court noted the
substantial, unnecessary delays were overbalanced by the
defendant’s delayed assertion of his right and the absence of
prejudice. In such circumstances, the balance tipped in favor
of the State.
The Montana Supreme Court found the delay of nineteen
months between the filing of the information and the trial
date sufficient to trigger consideration of the other factors
identified in Barker. While the Ninth Circuit has not
adopted a rigid rule regarding the amount of delay necessary
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to trigger the Barker test, cf e.g., United States v. Jones, 524
F.2d 834, 849 (D.C. Cir. 1975) (D.C. rule that a six-month
delay triggers the inquiry), it has held that a delay as short as
ten months will trigger a ‘‘careful analysis” under Barker.
Paine v. McCarthy, 527 F.2d 173, 176 (9th Cir. 1975). It
is therefore clear that the delay in this case is substantial
enough to require inquiry into possible constitutional
violations.
A. Reason for the delay.
It is clear that a large portion of the nineteen-month
pretrial delay in this instance is attributable to the Montana
judge-disqualification law. §95-1709 R.C.M., 1947. Both
the State and the defendants exercised a statutory, per-
emptory disqualification. Additionally, two judges stepped
aside of their own accord, one on motion of the defendant.
The disqualification of most concern here was the State’s
disqualification of Judge Allen. When disqualified, Judge
Allen had been on the case seven months and a decision on
the defense motions was imminent. The State’s timing in
exercising its challenge of Judge Allen is questionable. An
examination of the discovery documents in this case reveals
that the deci«: 1n to disqualify Judge Allen was reached in
order to gain a tactical advantage over the defendants.’
Barker teaches that there are graduations under which
‘delays attributable to the State are to be classified. Delays
resulting from bad faith, or deliberate delays to gain a tactical
advantage, are weighed most heavily against the State.
Negligent delays are weighed less heavily, as are institu-
’See, Depositions of Richard Dzivi, Robert Woodahl, and Affidavit
of Judge Allen.
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tional delays such as overcrowded courts.‘ 407 U.S. at 531;
see also, Opinion of White, J., concurring, 407 U.S. at 536-
38. Here, the imposition of responsibility for causing
“deliberate delay” must weigh heavily aginst the State.
The defendants also characterize the original information
as “an oppressive, multiplicitous 19 count information.”’ It is
alleged that the filing of nineteen counts, rather than the six
counts which were filed in the amended complaint,
amounted to harassment, and that delays resulting from the
number of counts should therefore weigh heavily against the
defendants. I find that filing nineteen counts when but six are
required is unfair, if not violative of the “good faith”
requirements of Mont.R.Civ.P. Rule 11.
The reasons for the delay in bringing petitioners to trial
must weigh heavily against the State.°
~ “There is authority that delay for no justifiable reason should weigh
heavily against the State. See, Morris v. Wyrick, 516 F.2d 1387 (8th
Cir. 1975).
‘The Montana Supreme Court's holding on “neutral delay”, delay
caused by the system, is not consistent with this Court’s reading of the
cases. The Court held that delays inherent in the system are not
chargeable against the state. This is inconsistent with the holding in
Barker. The D.C. Circuit stated the rule as follows:
The Supreme Court has held that delays due to the operation of
the system also must be placed at the Government's door, stating in
Barker v. Wingo: ©
A defendant has no duty to bring himself to trial; the State has
that duty as well as the duty of insuring that the trial is
consistent with due process . . . . [T]he rule we announce
today, which comports with constitutional principles, places
the primary burden on the courts and the prosecutors to
assure that cases are brought to trial.
United States v. Jones, 524 F.2d 834, 849 (D.C. Cir. 1975).
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B. The defendants’ assertion of right.
In Barker, the Supreme Court found no violation of the
applicant’s right to a speedy trial. Even though the delay was
substantial and unjustified, the Court found that failure to
assert the right and lack of prejudice weighed heavily against
the defendant. The Court found in particular that Barker did
not want a speedy trial and was in fact content to sit back and
hope that his co-defendant, Manning, would be acquitted,
since the state conceded it could not convict Barker without
Manning’s testimony. Barker’s failure to object to eleven
continuances over the period of more than four years was
found to be fatal. The Court stated:
We do not hold that there may never be a situation in
which an indictment may be dismissed on speedy trial
grounds where the defendant has failed to object to
continuances .. . . But barring extraordinary circum-
stances, we would be reluctant indeed to rule that a
defendant was denied this constitutional right on a
record which indicates, as does this one, that the
defendant did not want a speedy trial.
407 U.S. at 536.
The Montana Supreme Court relied heavily on this
rationale in reversing Judge Sorte’s order of dismissal. The
Court found that the defendants sat on their speedy trial
rights for 507 days before asserting them for the first time on
a motion to dismiss. It was further found that the defendants
were not ready for trial, in that they had not even commenced
their pretrial discovery. The Court found specifically that
“the record in this case amply demonstrates that the
defendants did not really want a speedy trial.”’ 34 St.Rep. at
428.
The difficulty with this conclusion is the ‘‘amply
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demonstrate|d]’’® language. To hold that the defendants
failed to assert their speedy trial rights by objecting to the
various continuances requested by the State would be
inconsistent with the burdens of getting a case to trial,
articulated in Barker. Barker makes clear that the state
bears the ultimate responsibility for bringing a defendant to
trial. The petitioners’ case is more difficult if there is no
objection to the slow pace of the proceedings early in the
game.’ However, the ultimate burden still rests on the State’s
shoulders. The State’s failure to seek a speedy disposition of
its criminal charges must weigh against it and not the
defendants, Barker v. Wingo, supra.
C. Prejudice.
The right to speedy trial is designed to protect three major
interests: ‘‘(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and (iii)
to limit the possibility that the defense will be impaired.’’ 407
U.S. at 532. While prejudice against any one of these
interests may suffice to weigh in the defendants’ favor, it is
clear that impairment of the defense is the most important.
Id. Here, petitioners’ allegation of prejudice stems from the
*Justice Daly in dissenting wrote:
“(The majority’s conclusion that the defendants did not want a
speedy trial] is an exceedingly transparent effort to bring this case
within the result of Barker . . . . [A] search of the record fails to
disclose any evidence to support this gratuitous statement... .”
34 St.Rep. at 433 (Daly, J., dissenting).
In Barker, the Supreme Court disavowed the so-called “demand-
waiver rule’ whereby a party who fails to demand a speedy trial is
deemed to have waived it. 407 U.S. at 528.
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effects of the anxiety and concern resulting from the delay on
the health of the petitioners.*®
Anxiety and concern are present to some degree in every
trial. Therefore, a defendant must establish something more
than normal anxiety in order to show prejudice. United
States v. Shepherd, 511 F.2d 119, 123 (Sth Cir. 1975).
Here the defendants did so by testimony before Judge
Hatfield on May 17, 1976. See, Petitionrs’ Brief, R.
Document 21 at 16-20. It appears that the health of both the
petitionrs has been adversely affected by the delay. Thus the
petitioners has been adversely affected by the delay. Thus the
factor of prejudice weighs in petitioners’ favor.
D. The Balance.
The decision in this case rests on the degree to which
petitioners have shown the factors to be considered weigh in
their favor.?
Here, the length of the delay tips decidedly in favor of the
petitioners. The evidence adduced in support of the petition
~ ‘Judge Sorte found both actual and presumptive prejudice from the
delay. The Montana Supreme Court conceded this to some degree. 34
St.Rep. at 429.
*But see, United States v. Lockett, 526 F.2d 1110 (7th Cir. 1975).
The Court there stated:
| W |e disagree with the trial court’s determination that defendant’s
failure to assert his right constituted a significant negative factor in
the balancing process . . . . Where a lengthy delay occurs in the
interval between arrest and indictment, normally there would be no
reason to require defendant speedily to assert a demand for his own
indictment and trial.
526 F.2d at 1111-12.
Here, the defendants were charged by information before they were
arrested, so the exception mentioned in Lockett would not apply.
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also reveals that at the crucial juncture of this case the State
exercised a challenge to the state judge presiding over the
case at the time, and that such challenge was done to gain
tactical advantage of the state defendants. Finally, pe-
titioners have shown the requisite prejudice against them,
caused by the delay in bringing this case to trial. As the Court
noted in United States v. Jones, 524 F.2d 834, 850 (D.C.
Cir. 1975), the defendant has no duty to bring himself to
trial; that burden belongs to the state and is in addition to the
burden of seeing that the state trial is consistent with the due
process of law. Therefore,
IT IS ORDERED that petitioners’ request for a writ of
Habeas Corpus be, and the same hereby is, granted.
IT IS FURTHER ORDERED that the State of Mon-
tana, and the Attorney General, be, and they hereby are,
enjoined from further prosecuting the above-named pe-
titioners and the State charges brought against them.
The Clerk is directed to notify the parties of the entry of
this order.
Done and dated this 12th day of May, 1978.
/s/ James F. Battin
United States District Judge.
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN J. CARDEN, a/k/a )
JAMES J. CARDEN, and )
GLORIA (EUSEK) CARDEN, )
)
Petitioners-Appellees, ) No. 78-3095
)
v. ) DC. No. CV-77-61-H
)
STATE OF MONTANA, ) ORDER
)
Respondent-Appellant. )
)
)
Before: GOODWIN and FARRIS, Circuit Judges and
TAYLOR*, District Judge
The panel as constituted in the above case has voted to
deny the petition for rehearing. Judges Goodwin and Farris
have voted to reject the suggestion for a rehearing en banc.
The full court has been advised of the suggestion for an en
banc hearing, and no judge of the court has requested a vote
on it. Fed. R. App. P. 35(b).
The petition for rehearing is denied and the suggestion for
a rehearing en banc is rejected.
*The Honorable Fred M. Taylor, Senior District Judge for the
District of Idaho, sitting by designation.
A20
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
IN THE MATTER OF THE _)
APPLICATION OF:
JOHN J. CARDEN a/k/a CV-77-61-H
JAMES J. CARDEN and )
GLORIA (EUSEK) CARDEN, MEMORANDUM
) AND ORDER
FOR A WRIT OF HABEAS
CORPUS and )
OTHER APPROPRIATE
RELIEF. )
On May 12, 1978, this Court entered an order granting
petitioners’ request for a Writ of Habeas Corpus. The order
of May 12 further enjoined the State of Montana and its
Attorney General from prosecuting the above-named pe-
titioners in any state charges pending against them. On May
23, 1978, the respondent, pursuant to Rules 52 and 59 of the
Rules of Civil Procedure, filed a motion to amend the
Findings and Judgment of the Court or, in the alternative, for
a new trial. The motion has now been fully briefed by both
parties and is before the Court for consideration and
decision. My review of the issues raised gives no reason to
amend the judgment previously entered. The principal
contention of the respondent seems to rest on its reliance on
A.|
the case of United States v. MacDonald, ____ US. ;
46 U.S.L.W. 4395 (May 1, 1978), decided by the United
States Supreme Court sufficiently close to the time of the
decision in this case that it was not considered by the Court.
A careful reading of the MacDonald decision reveals that it
is inapplicable to the case at hand. The fundamental
distinction between MacDonald and the present case is that
there, the Court was dealing with the question of inter-
locutory appeal in federal criminal litigation. The Court
found that federal Courts of Appeal do not have the
jurisdiction to review district court orders denying a
defendant’s motion to dismiss an indictment on speedy trial
grounds, before trial. As the Court noted:
In keeping with what appear to be the only two other
federal cases in which a defendant has sought pretrial
review of an order denying his motion to dismiss an
indictment on speedy trial grounds, we hold that the
Court of Appeals lacked jurisdiction to entertain re-
spondent’s speedy trial appeal.
United States v. MacDonald, supra at 4397.
The MacDonald decision deals with the applicability of
28 U.S.C. § 1291. That section is not applicable to this case.
Here, the petition for Writ of Habeas Corpus in the federal
district court was filed after an exhaustion of state remedies
wherein the matter of speedy trial was litigated. The
jurisdictional statute and relevant case law to the case at
hand is set forth in 28 U.S.C. §2254 and cases cited
thereunder.
The Cardens have exhausted the state remedies available
to them. The state district court had granted Carden’s motion
to dismiss on the Sixth Amendment speedy trial question.
The state’s high tribunal reversed that court’s order dis-
missing the information and found that the Cardens had not
A22
been denied their Sixth Amendment right to a speedy trial.
Cardens petitioned for a rehearing on the issue; the petition
was denied on July 27, 1977. Thereafter, the Montana
Supreme Court decision became the law of the case, State v.
Zimmerman, 34 St.Rept. 1561 (1977), and thus, there is no
available procedure under the laws of the State of Montana
wherein the Cardens could raise the constitutional question
presented and still protect their right to a speedy trial. The
case of United States v. MacDonald, supra, is inapplicable
to habeas corpus cases arising from state court adjudications
and judgments. Therefore,
IT IS ORDERED that the motion of respondent Siate of
Montana to amend Findings and Judgment of this Court, or
in the alternative the motion for a new trial, be, and the same
hereby are, denied.
The Clerk is directed to notify the parties of the entry of
this order.
Done and dated this 25th day of July, 1978.
/s/ James F. Battin
United States District Judge
A23
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
IN THE MATTER OF THE
APPLICATION OF:
JOHN J. CARDEN a/k/a
JAMES J. CARDEN and NO. CV 77-61-H
GLORIA (EUSEK) CARDEN,
FOR A WRIT OF HABEAS
CORPUS AND
OTHER APPROPRIATE
RELIEF.
PETITION
|
Your petitioners, JOHN J. CARDEN, a/k/a JAMES J.
CARDEN and GLORIA (EUSEK) CARDEN, are citi-
zens of the United States, residents of the County of
Clackamas, State of Oregon, and were charged with crimes
in Lewis and Clark County, State of Montana, in this
District on the 20th day of December, 1974.
A24
II
That your petitioners are now actually, unjustly and
unlawfully restrained of their liberty and detained under
color of authority of the State of Montana in the custody of
Rick Westlund, Sheriff of Lewis and Clark County, Mon-
tana, in said District.
III
That the sole claim and authority by virtue of which
petitioners are restrained of their liberty is a judgment of the
Montana Supreme Court, State of Montana, rendered on the
25th day of May, 1977, in which the petitioners were
ordered to stand trial. A copy of the judgment is marked
Exhibit “‘A”’ and is attached hereto and made a part hereof.
The judgment and order are void and without authority of
law and the restraint of liberty of the petitioners is a denial of
due process of law, and further a denial of their constitutional
rights to a speedy trial under the Sixth and Fourteenth
Amendments of the Constitution of the United States and
hereinafter shown.
V
The petitioners were charged by information in the
District Court of Lewis and Clark County, State of Mon-
tana, on the 20th day of December, 1974. On May 4, 1976,
arraignment of the petitioners was set to be held on May 17,
1976. The period between the time of filing the information
and time set for arraignrnent is 514 days. The petitioners
A25
have been denied their United States constitutional right to a
speedy trial under the Sixth and Fourteenth Amendments
and their Montana Constitutional right to a speedy trial
under Art. II, §24, 1972 Montana Constitution.
The length of delay has resulted in great prejudice to the
petitioners. They have been restrained of their liberty since
January 3, 1975, by being under the obligation to appear at
all times and places as ordered by the Court. They have been
fully apprised of the penalty in the event they fail to appear
upon being so ordered. Moreover, the delay has interfered
greatly with employment opportunities, drained their
financial resources, detrimentally affected friendships and
association with others, subjected them to public hostility
and caused great mental, emotional and psychological
anxiety to each of them and to their family and friends. These
facts were established in the State proceeding, are part of the
record, uncontroverted and establish prejudice beyond any
presumption.
The State of Montana District Court granted the motion to
dismiss for lack of speedy trial on July 28, 1976 for the
reasons set forth in the opinion of District Judge M. James
Sorte and a copy of that order and judgment dismissing with
prejudice and memorandum is attached hereto as Exhibit
““B”’ and made a part of this petition and in that memorandum
of the said District Judge the following statement is judicially
declared:
“Uncontradicted testimony given by Defendants at a
hearing held May 17, 1976, in Great Falls, Montana,
clearly establishes prejudice beyond the presumption.’
The State has never justified the delay in this case nor ever
explained why a single transaction should be expanded into
19 multiplicitous and oppressive counts so as to engender
expected delay and then after harassing and prejudicing the
A206
defendants through this type of multiplicitous and oppressive
charging of crime then voluntarily and ex parte request the
District Judge 422 days later to reduce the charges from 19
counts to six (6) counts. All of the activities of the State of
Montana which have generated the claimed unreasonable
delay is without justification and a violation of its duty and
responsibility to protect the Federal constitutional right of
the petitioners to a speedy trial.
That in addition to the 514 day delay from the time of the
filing of the charges until the time for arraignment on May
17, 1976, additional time passed and the trial date was set
thereafter and the final arguments on the motion in the State
District Court to dismiss for lack of speedy trial was argued
and granted on July 28, 1976. The State of Montana
promptly filed notice of appeal on August 1, 1976 and briefs
promptly submitted by both the State and the defendants and
the case was argued to the Montana Supreme Court on
October 22, 1976. The argument related to the sole issue of
whether the petitioners herein were denied their State and
Federal Constitutional right to a speedy trial and not-
withstanding the fact that this was the only issue for
argument and decision the matter was not decided during the
balance of 1976 and the case was then set for re-argument on
February 9, 1977 and again only that single issue as to
speedy trial was argued and presented once again for
appellate decision. The Montana Supreme Court as set forth
in the attached opinion decided the issue against the
petitioners on May 25, 1977. The petitioners filed for re-
hearing on June 13, 1977 and opposition to the petition for
re-hearing was promptly filed by the State.
The petition for re-hearing was not denied and such denial
communicated to the petitioners until August 4, 1977. The
appellate process of the State of Montana with respect to the
A27
sole issue of speedy trial consumed 369 days and the total
time that has now elapsed since the information was filed
against the petitioners on December 20, 1974 is the grand
total of 957 days.
That during all of this time because of the “political
nature” of this case the petitioners have suffered the
prejudice herein set forth and described and this type of delay
is without justification and is a clear and unquestioned
violation of their constitutional right as American citizens to
a speedy trial.
V
The petitioners have further been denied their United
States Constitutional rights under the Fifth and Fourteenth
Amendments by being victims of bad faith prosecution under
color of authority of the State of Montana. The State of
Montana, through its officers and agents have used the
criminal justice system in the State of Montana to harass,
intimidate and coerce the petitioners contrary to the Con-
stitution of the United States. That the prosecution has been
conducted in bad faith as to these petitioners has been shown
to the United States District Court FOR THE DISTRICT
OF MONTANA, HELENA DIVISION, in the case of
WILLIAM T. KELLY vs. ROBERT F. WOODAHL,
Attorney General of the State of Montana, CV-76-55-H.
Petitioners request that the Court take judicial notice of the
record and deem it a part of this petition by this reference.
A28
VI
As a separate and distinct ground for issuing petitioners’ a
writ of Habeas Corpus, petitioners allege they have been
denied equal protection of the laws under the color of State
authority contrary to the Fourteenth Amendment to the
United States Constitution in that they have been dis-
criminated against by the State of Montana. That they have
been singled out and treated differently from all other
criminal defendants in the State of Montana and there can be
no explanation for such discrimination other than the one
pointed out by Justice Daly of the Montana Supreme Court
in his dissent in STATE OF MONTANA v. JOHN J.
CARDEN a/k/a JAMES J. CARDEN and GLORIA
(EUSEK) CADEN, 34 St. Rptr. 420, 430-439 (1977)
where he wrote that the only visible reason for treating this
case differently from all other cases involving defendants
who have been denied their Constitutional right to a speedy
trial in the State of Montana was because this case is a
““political” case. A copy of the Montana Supreme Court’s
opinion and Justice Daly’s dissent are attached hereto as
Exhibit “A” and by reference made a part hereof.
VII
That the petitioners have exhausted their remedies avail-
able in the Courts of the State of Montana, by moving the
District Court of Lewis and Clark County for dismissal of
the information charging them with crimes against the State
of Montana for failure to afford them their constitutional
right to speedy trial. This motion was granted on the 28th day
of July, 1976. The State of Montana appealed the District
A29
Court’s decision dismissing the information to the Montana
Supreme Court which was originally heard on the 22nd day
of October, 1976, and re-argued on the 9th day of February,
1977. On the 25th day of May, 1977, the Montana Supreme
_ Court reversed the District Court ruling holding that pe-
titioners were not denied their constitutional right to a
speedy trial under the Constitution of the State of Montana
or the Constitution of the United States. Rehearing was
denied on the 4th day of August, 1977. A copy of the
Montana Supreme Court’s opinion and order are attached
hereto as Exhibit ““A”’ and by reference made a part hereof.
WHEREFORE, the petitioners pray the Court to issue its
Writ of Habeas Corpus addressed to Rick Westlund, Sheriff
of Lewis and Clark County, State of Montana, ordering and
directing him to have the bodies of the petitioners forthwith
before the Court at that time that petitioners be discharged
from further custody. They further pray that all proceedings
in the District Court of Lewis and Clark County, State of
Montana, be stayed pending the hearing and determination
of this petition, and further ask that this Court prescribe the
time of notice and direct to whom the notice of this
application shall be given.
For the purpose of informing the Court they state that
Mike Greely is the Attorney General of the State of
Montana, in charge of their prosecution and his address is
the Capitol Building, Helena, Montana, and that Robert S.
Keller, of Helena, Montana, is Special Assistant Prose-
cutor, whose address is at the Capitol Building, Helena,
Montana, and the sheriff in whose custody your petitioners
A30
are held, is a resident of the City of Helena, County of Lewis
and Clark, State of Montana.
DATED this 5th day of August, 1977.
By: Wade J. Dahood
Attorney for the petitioners
113 East Third Street
Anaconda, Montana 59711
STATE OF MONTANA |
ss.
County of Deer Lodge |
WADE J. DAHOOD, being first duly sworn, says that he
is the Attorney of record for the petitioners in the foregoing
action; that he has been authorized by petitioners to verify
this petition; that he has read the foregoing petition and
knows the contents thereof, and that the same is true to his
own knowledge.
/s/Wade J. Dahood
SUBSCRIBED and SWORN to before me this 5th day of
August, 1977.
/s/ May M. Preskar
Notary Public for the State of
Montana residing at Anaconda. My
commission expires 12-7-79.
A31
EXHIBIT “A”
STATE REPORTER
Box 749
Helena, Montana
VOLUME 34
No. 13478
THE STATE OF MONTANA,
Plaintiff and Appellant,
VS. Submitted: Feb. 16, 1977
Decided: May 25, 1977
JOHN J. CARDEN, a/k/a JAMES J.
CARDEN and GLORIA (EUSEK)
CARDEN,
Defendants and Respondents.
CRIMINAL LAW, Charging Crimes Arising out of Work-
men’s Compensation Claim Settlement, Error in Trial
Court’s Dismissal for Lack of Speedy Trial, Four Principal
Factors To Be Balanced in Determining whether Defendant
Has Been Denied a Speedy Trial
A32
Appealed from the First Judicial District Court, Lewis and
Clark County, Hon. M. James Sorte, Judge Presiding.
For Appellant: Mike Greely, Attorney General, Helena
Robert S. Keller; Special Ass’t Attorney
General, Helena
®
For Respondents: Smith, Emmons, Baillie & Walsh, Great
Falls Knight, Dahood & Mackay,
Anaconda
Mr. Greely and Mr. Keller argued the case orally for
Appellant, Mr. Robert J. Emmons for Respondents.
Opinion by Justice Haswell; Justice Shea and Hon. James
M. Salanky, District Judge sitting for Justice Harrison,
concurred; Justice Daly dissented; Hon. L. C. Gulbrandson,
District Judge sitting for Chief Justice Hatfield, dissented in
part.
A33
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
Mr. Justice Haswell delivered the Opinion of the Court.
Defendants James J. Carden and his wife Gloria Eusek
Carden were charged with several crimes arising out of a
$5,000 settlement of her Workmen’s Compensation claim.
The district court, Lewis and Clark County, dismissed the
case on the ground that defendants had been denied their
constitutional right to a speedy trial. The state appeals. We
reverse.
On December 20, 1974, the attorney general filed a direct
Information against the defendants in the district court of
Lewis and Clark County. Defendant James J. Carden is the
former administrator of the Workmen’s Compensation
Division, Department of Labor and Industry, of the State of
Montana. Defendant Gloria Eusek Carden is the wife of
defendant James J. Carden. The Information contained 19
counts charging defendant with the following crimes in
connection with a $5,000 settlement of Gloria Eusek
Carden’s claim under the Workmen’s Compensation Act:
Embezzlement by a public officer; grand larceny; obtaining
money or property by false pretenses; presenting false proofs
on a policy of insurance; officer illegally interested in a
contract; offering false or forged document to be recorded;
preparing false evidence, and offering false evidence.
Defendants made their initial appearance on January 3,
1975, before District Judge Gordon R. Bennett. Defendants
were granted additional time to brief the Information and
were released on their own recognizance. On January 9,
1975, District Judge Nat Allen assumed jurisdiction of the
case upon request of Judge Bennett.
A34
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
On January 17, 1975, Judge Allen granted defendants an
extension of time to February 10 in which to file their
motions and briefs. On February 10 defendants filed 56
motions attacking the Information in various particulars.
Defendants received an extension of time to February 26 to
file their supporting brief.
On March 18, Judge Allen revised the briefing schedule
on defendants’ motions to that defendants brief was due on
April 21, the state’s answering brief was due on May 21 and
defendants’ reply brief was due on May 30. The state
contends this was done to synchronize the briefing schedule
in this case with the briefing schedule in State v. James J.
Carden, Cause #3937 in the district court. Defendants deny
this.
On May 20, the state received an extension of time to June
4 to file its answering brief. Thereafter defendants received
an extension of time to July 3 in which to file their reply brief.
On August 4, the state moved to disqualify Judge Allen
resulting in an appeal to this Court. We ruled that Judge
Allen was disqualified. On September 30, District Judge
Jack D. Shanstrom assumed jurisdiction.
On October 21, Judge Shanstrom set all pending motions
for hearing on November 17. On November 3, defendants
disqualified Judge Shanstrom.
On December 9, District Judge Paul G. Hatfield assumed
jurisdiction. Judge Hatfield set all motions by the defendants
for hearing on February 4, 1976. At the hearing, Judge
Hatfield requested counsel to submit proposed orders and
requested the state to review its Information for con-
solidation of counts. According to the state, it subsequently
A35
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
wrote Judge Hatfield suggesting that the Information could
be reduced to 6 counts and the judge concurred.
On April 14, 1976, Judge Hatfield entered an order (1)
dismissing 13 counts of the Information, (2) granting the
state leave to file an amended Information, (3) indicating
that many of the defendants’ original motions were rendered
moot by the dismissal of the 13 counts, and (4) setting a
further hearing for April 27. This was subsequently con-
tinued to May 4 due to inclement weather.
In the meantime, on April 21, the state filed an amended
Information containing 6 counts. In the amended Informa-
tion the defendants were charged with 6 crimes generally
corresponding to the remaining counts in the original
Information. The crimes charged in the amended Informa-
tion were: Embezzlement by a public officer; grand larceny;
offering a forged or false document to be recorded; and
preparing false evidence.
Following the hearing on May 4, Judge Hatfield set
May 14 as the date for arraignment of defendants on the
amended Information; May 17 was set for hearing further
motions to be filed by defendants; and June 17 was set as the
tentative trial date.
On May 11, defendants filed their motion to dismiss the
case for denial of a speedy trial in violation of the Sixth
Amendment to the United States Constitution and Art. II,
Sec. 24, 1972 Montana Constitution.
On May 17, defendants presented the state with 25
motions attacking the amended Information; a motion to
dismiss all charges because of prejudicial pretrial publicity; a
motion for change of place of trial; a demand for production
of documents for trial; a motion for production of documents;
A36
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
and a motion to compel the state to furnish defendants with a
copy of any oral or written confessions or admissions with a
list of witnesses.
On May 27, defendant Gloria Eusek Carden moved for a
severance of her trial from that of James J. Carden.
On June 8, Judge Hatfield, who was then engaged in a
state-wide campaign for election as Chief Justice of this
Court, removed himself from jurisdiction in the case,
following a motion by defendants.
District Judge James Sorte then assumed ‘ectadtebon and
set all motions by defendants for hearing on June 17.
Following hearing all motions by defendants were denied,
except those relating to discovery. Trial was set for August
16.
On July 16, defendants requested a rehearing on the issue
of a speedy trial. The rehearing was held on July 28, in
Kalispell during the annual convention of the State Bar of
Montana. Judge Sorte ruled from the bench that the case be
dismissed for lack of a speedy trial. The state filed its notice
of appeal the following day. On August 1 , Judge Sorte filed a
memorandum opinion setting forth the reasons for his ruling.
The appeal was originally argued on October 22, 1976
and reargued on February 9, 1977.
The sole issue on appeal is whether the defendants have
been denied their constitutional right to a speedy trial. We
note defendants have presented 16 additional issues for
review relating to other pretrial aspects of the case, which we
will not review at this time as the district court’s dismissal is
based exclusively on denial of a speedy trial.
Although the arguments of the respective parties on the
A37
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
speedy trial issue consist of hundreds of pages of briefs filed
in the district court and in this Court on appeal, we will
endeavor to summarize the principal positions of the re-
spective parties in brief, understandable form. In so doing,
we will confine ourselves to the basic thrust of the arguments
as we view them, directing our attention to the forest rather
than the individual trees.
The defendants principally contend that they have been
denied their constitutional right to a speedy trial under the
principles enunciated by the United States Supreme Court in
Barker v. Wingo, 407 U.S. 514,92 S.Ct. 2182, 33 L. Ed. 2d
101, and our decisions in State v. Steward, 168 Mont. 385,
543 P.2d 178, 32 St.Rep. 1185; State ex rel. Sanford v.
District. Ct., Mont. 551 P.2d 1005, 33 St.Rep. 644; and
State v. Keller, Mont. , 553 P.2d 1013; 33 St.Rep.
795. These cases generally involve a sensitive balancing of
four principal factors in the individual case to determine
whether a given defendant has been denied a speedy trial: (1)
length of delay, (2) reasons for the delay, (3) assertion of the
right by defendant, and (4) prejudice to defendant.
Defendants contend that when these four factors are
properly evaluated and balanced under the circumstances of
this case, defendants have clearly been denied their right to a
speedy trial. They emphasize the length of the delay here is
excessive and unreasonable; that the principal reason for the
delay is the manner in which the state chose to prosecute the
case by a 19 count Information covering an essentially
simple factual transaction; that the duty is on the state to
afford defendants a speedy trial, which defendants have
neither waived nor consented to; and that defendants have
A38
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
suffered severe actual prejudice by the failure of the state to
bring them to trial within a reasonable time. In short,
defendants claim the state is responsible and chargeable with
unreasonably delaying the trial of defendants without
justification entitling defendants to dismissal of the charges
against them.
The basic position of the state, on the other hand, is that
while the four factor balancing test of Barker and its
Montana progeny Steward, Sanford and Keller is con-
trolling, a proper evaluation and balancing of these factors
demonstrates that defendants have not been denied a speedy
trial within constitutional requirements. The state argues it
has pursued the prosecution of this case with dispatch and
cites several cases where delays substantially in excess of
those here were held not to constitute violations of constitu-
tional speedy trial guarantees: Barker, supra; United States
v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L. Ed. 2d 627;
United States v. Lane, 465 F.2d 408; United States v.
Jones, 475 F.2d 322; United States v. Skeens, 494 F.2d
1050; United States v. Churchill, 483 F.2d 268; Ricon v.
Garrison, 517 F.2d 628; United States v. Fairchild, 526
F.2d 185; United States v. Stein, 456 F.2d 844; Constabile
v. State (Okla.Cr.), 513 P.2d 588.
The state emphatically denies that it is responsible or
chargeable with the principal delays involved in this case,
viz. the time necessarily consumed in researching, briefing,
arguing, and securing a decision on the voluminous motions
filed by the defendants and the time necessarily consumed
incident to disqualification of judges by both the defendants
and the state. The state further contends that the defendants
A39
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
have never sought a speedy trial and are not now prepared to
go to trial. Finally, the state distinguishes Steward, Sanford
and Keller but requests us to review our prior holdings in
Steward and Sanford on assertion of the right to a speedy
trial by defendants.
As a further preface to our decision herein, we note the
prior rulings of the district court on defendants’ motion for
dismissal of this case for denial of a speedy trial. The district
court initially denied defendants’ motion. Subsequently a
rehearing was granted and the district court granted de-
fendants’ motion. Briefly stated, the district court reasoned
that the long delay in bringing the defendants to trial in this
case established a prima facie case of denial of a speedy trial;
that both presumptive and actual prejudice to defendants
resulted from this delay; that three principal reasons ac-
counted for the delay in this case (1) the Montana disquali-
fication law and the procedural practicalities attendant on
changing judges, (2) the filing of multiple counts (19) by the
prosecution in a relatively simple factual situation, and (3)
the state’s disqualification of Judge Allen after he had
considered the case for over 7 months; that none of these
delays was chargeable to defendants; and therefore the
defendants were entitled to dismissal for lack of a speedy
trial. Implicit in the district court’s reasoning although not
specifically stated therein is the proposition that delays not
chargeable to the defendants are the responsibility of the
state.
The starting point in our analysis of the speedy trial issue
is Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.
2d 101, which both the state and the defendants concede is
A40
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
controlling. Barker rejects the two arbitrary approaches to
the issue of speedy trial in favor of a balancing test in this
language:
“We, therefore, reject both of the inflexible ap-
proaches—the fixed-time period because it goes further
than the Constitution requires; the demand-waiver rule
beause it is insensitive to a right which we have deemed
fundamental. The approach we accept is a balancing
test, in which the conduct of both the prosecution and
the defendant are weighed.” 407 U.S. 529, 530.
The substance of the balancing test in Barker is described
in these words:
“A balancing test necessarily compels courts to ap-
proach speedy trial cases on an ad hoc basis. We can do
little more than identify some of the factors which courts
should assess in determining whether a particular
defendant has been deprived of his right. Though some
might express them in different ways, we identify four
such factors: Length of delay, the reason for the delay,
the defendant’s assertion of his right, and prejudice to
the defendant.” 407 U.S. 530, 531.
Montana has adopted and applied the four factor
balancing test in Barker in determining the speedy trial issue
under Art. II, section 24, 1972 Montana Constitution, as
well as under the United States Constitution in three
principal cases: State v. Steward, supra; State ex rel.
Sanford v. Dist. Ct., supra; State v. Keller, supra.
The length of the delay between the filing of the Informa-
tion and the date set for trial (544 days) triggers the inquiry
here. Barker v. Wingo, supra. It establishes a prima facie
case of denial of a speedy trial. State ex rel. Sanford v. Dist.
A4l
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
Ct., supra. If this prima facie case remains unrebutted, the
issue is settled. In this case, the state’s rebuttal must be
weighed and considered in the light of the four factor test of
Barker.
The first factor to be considered is the length of the delay.
In this case the state concedes that the time lapse is sufficient
to trigger an inquiry into the other three elements of the
balancing test. We agree. We note that speed alone is not the
determining factor. Rather it is the manner in which the state
has pursued the prosecution in the light of the totality of the
circumstances in the case. The United States Supreme
Court has placed this consideration in perspective in the
following passage from United States v. Ewell, 383 U.S.
116, 86 S.Ct. 773, 15 L. Ed. 2d 647, 630:
“However, in large measure because of the many
procedural safeguards provided an accused, the ordi-
nary procedures for criminal prosecution are designed
to move at a deliberate pace. A requirement of un-
reasonable 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 depends upon circumstances. It secures rights to a
defendant. It does not preclude the rights of public
justice.’ * * * ‘Whether delay in completing a prose-
cution * * * amounts to an unconstitutional deprivation
of rights depends upon the circumstances * * *, The
delay must not be purposeful or oppressive.’ * * *’ [T]he
essential ingredient is orderly expedition and not mere
speed.’ ””
A42
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
In our view the state has pursued the prosecution with
reasonable diligence. There is little ““dead time”’ in which
nothing was done which distinguishes this case from
Steward, Sanford and Keller. Although defendants argue
the state could have proceeded more expeditiously had it
chosen to charge the defendants with a single crime or no
more than the 6 charges they eventually ended up with in the
amended Information, this is largely speculative and un-
convincing in light of the 25 motions filed by defendants
attacking the amended Information and the additional
discovery motions, venue motion, severance motion, and
motion relating to pretrial publicity. In any event, we cannot
say the law of Montana is so clear that the manner of
charging defendants in this case rendered the initial filing of a
19 count Information in this case unreasonable. In our view
the prosecution in this case has proceeded in orderly and
unreasonable progression step-by-step toward trial under
the criminal procedural statutes of this state.
The second factor to be weighed and considered under
Barker involves the reasons for the delay. This has been
partially touched upon in the preceding discussion. To be
more precise, the principal delays in this case were oc-
casioned by the time necessarily consumed in researching,
briefing, and arguing defendants’ 56 original motions,
disqualification of judges by both the state and defendants
with resulting procedural delays, requests for extension of
time by both the state and defendants, and the late filing of
briefs. We do not suggest for a moment that defendants were
not entitled to file their 56 motions, disqualify 2 judges, or
A43
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
request extensions of time. What we do say is that the
resulting delays are not the responsibility of nor chargeable
to the state.
This brings us to one of the principal bones of contention
between the state and defendants. The state contends it is not
chargeable with delays inherent in the criminal justice
system in the absence of fault on its part. Defendants
contend that such delays are chargeable to the state because
it is the state’s obligation to afford the defendants a speedy
trial and the defendants have no control over the state’s
criminal procedure statutes or its criminal justice system.
We reject the basic approach to this problem taken by
defendants and impliedly by the district court. This ap-
proach indicates that if defendant is chargeable with a given
number of days delay, the state is automatically chargeable
with the remainder without regard to other considerations.
Such an arbitrary and mechanical approach is unreasonable
and goes far beyond the speedy trial provisions of the federal
and state constitutions. It leaves society naked of the means
to protect itself in the face of any protracted and spirited
defense. It is directly contrary to the four factor balancing
test in Barker where the conduct of both the prosecution and
the defendant is weighed under the circumstances of the
particular case under consideration.
We have previously held the time reasonably consumed
by a defendant’s good faith motions requiring research,
hearing and determination are not chargeable to defendant.
State v. Keller, supra. Logic and reason compel application
of the same rule to the state’s good faith efforts.
In our view the circumstances of this case indicate no
A44
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
intentional or deliberate delay by the state, an insignificant
amount of ‘“‘dead time”’, no “‘institutional delays”’ in the
criminal justice system beyond the statutory procedural
rights of the parties, and no substantial delays for which the
state is responsible or chargeable.
The third factor in the balancing process, defendants’
assertion of their right to a speedy trial, weighs most heavily
against defendants under the circumstances of this case.
Although failure to assert this right does not constitute a
waiver of the right to a speedy trial, it is a factor to be
considered in the balancing test. In Barker this con-
sideration was expressed thusly:
““# * * The defendant’s assertion of his speedy trial right,
then, is entitled to strong evidentiary weight in de-
termining whether the defendant is being deprived of the
right. We emphasize that failure to assert the right will
make it difficult for a defendant to prove that he was
denied a speedy trial.’’ 407 U.S. 531.
In our view the record in this case amply demonstrates
that the defendants did not really want a speedy trial. They
first asserted this right after protracted proceedings resulting
in dismissal of 13 of the 19 counts. For 507 days after they
were charged, defendants failed to even hint they desired a
faster pace in the proceedings. Defendants asked for and
received extensions of time. They delayed for 40 days after
the closing of filings for Chief Justice of this Court before
seeking Judge Hatfield’s removal because of his candidacy
for a statewide elective judicial office.
At the time defendants filed their motions for dismissal for
lack of a speedy trial, they had not pursued any pretrial
A45
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
discovery and were in no sense ready for trial. Six days after
filing their motions for dismissal for lack of a speedy trial,
defendants filed, among other things, three pretrial discovery
m ‘ions and a motion to change the place of trial. Fifteen
days after filing their motion for dismissal for lack of a
speedy trial, defendant Gloria Eusek Carden sought
severance of her trial from that of her husband and
codefendant. Under these circumstances defendants’ claim
of deprivation of a speedy trial loses its vitality. United
States v. Churchill, 483 F.2d 268; United States v. Dornau,
356 F. Supp. 1091. The further circumstance that de-
fendants waited until the eve of trial to file their motions
illustrates the transparent nature of their claim that they were
deprived of their constitutional right to a speedy trial. United
States v. Churchill, supra; United States v. Fasanaro, 471
F.2d 717; United States v. Jones, 475 F.2d 322; United
States v. Toy, 482 F.2d 741; Day v. State, 61 Wis.2d 236,
212 N.W.2d 489; United States v. Saglimbene, 471 F.2d
16.
The state requests us to review our prior holding in
Steward and Stanford on the third factor in the Barker
balancing process. The state reads these cases as holding
that the filing of a motion to dismiss for lack of a speedy trial
by defendant at his arraignment is a sufficient assertion of the
right. Steward, unlike this case, involved essentially ‘dead
time”’ between the filing of charges and arraignment and
motion on the eve of trial so to speak; Sanford involved the
failure of three different judges to set defendant’s motion for
hearing over an eight month period despite his repeated
A46
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
requests. Although isolated statements in the opinions may
support the state’s view of what this Court held, these
statements must be read and interpreted in the context of the
facts of the case in which they were made. As the United
States Supreme Court recently stated:
“While it is possible to excise various portions of the
plurality opinion to support the result reached below,
divorcing the language from the facts of the case serves
only to distort its holdings.”’ Illinois v. Somerville, 4107
U.S. 458, 469, 93 S.Ct. 1066, 35 L. ed. 2d 425, 434.
We view this as particularly true in speedy trial cases where
each case must be considered on an ad hoc basis under its
particular facts in applying the balancing test of Barker. We
intended no elimination of the third factor in the Barker
balancing test, but simply held that under the facts and
circumstances of those particular cases, defendants had
properly asserted their right.
The final factor in the balancing process involvés the
question of whether defendants were prejudiced by the
delay. We need not belabor this point. Both presumptive and
actual prejudice are present to some degree in this case.
Barker described the approach to this factor in this
manner:
““* * *Pejudice, of course, should be assessed in the light
of the interests of defendant which the speedy trial right
was designed to protect. This Court has identified three
such interests: (i) to prevent oppressive pretrial in-
carceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense
will be impaired. Of these, the most serious is the last,
A47
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system.
If witnesses die or disappear during a delay, the
prejudice is obvious. There is also prejudice if defense
witnesses are unable to recall accurately events of the
distant past. Loss of memory, however, is not always
reflected in the record because what has been forgotten
can rarely be shown.” 407 U.S. 532.
Here there is nothing in the record to suggest that the
defense has been impaired by the delay. There are no lost or
missing witnesses. There is no showing of loss of memory.
There has been no pretrial incarceration, oppressive or
otherwise.
There has been substantial anxiety and concern on the
part of defendants. This has manifested itself physically,
mentally and emotionally. It is perhaps more severe in this
case than in the usual case. But this is an unusual case. We
do not see how this anxiety and concern can be eliminated or
minimized as far as these defendants are concerned until this
entire workmen’s compensation investigation and prose-
cution is completely finished.
In summary then, the circumstances of this particular case
involve substantial delay resulting primarily from the exer-
cise of statutory procedural rights inherent in Montana’s
criminal justice system for which neither the state nor the
defendants are chargeable; that defendants’ assertion of lack
of a speedy trial has been belated and transparent, indicating
that defendants did not really want a speedy trial and were
not yet ready for trial when they filed their motion; and that
prejudice has resulted to defendants from the delay in the
A48
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
form of anxiety and concern. On the balance, we hold
defendants have not been denied a speedy trial in the
constitutional sense.
The order and judgment of dismissal is reversed. The case
is remanded to the district court for trial.
Mr. Justice Daly dissenting:
During oral argument the attorney general characterized
this as “a political case”. It was not made clear what
significance was intended. The majority here has scru-
pulously avoided any reference to the political background
of this or related Workmen’s Compensation cases but does
set the case apart at p. 15 [p. 429 St.Rep.] of the opinion with
“It is perhaps more severe in this case than in the usual case.
But this is an unusual case.’ (Emphasis supplied.)
Appellate judges have said in the past that it is not
necessary that a court pretend to be more ignorant than it
actually is, nor more ignorant than the public generally. I
believe this to be true. The political history and excessive
media treatment has not escaped my notice. Be this as it
may, I cannot agree that cases should be viewed or treated as
political or unusual or whatever. This case is what it is, a
single offense $5,000 fraud case, alleged by the state to be a
crime. The kind of case where the facts, not names, are
important. The kind of case the average county attorney sees
frequently and disposes of within several weeks or a month
with no problems.
The majority opinion relies almost exclusively on Barker
v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L. Ed. 2d 101
A49
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
(1972), and I do not deny its authority. However, in
explaining the application of Barker to the Montana cases of
Steward, Sanford and Keller, the majority states at p. 6 [p.
423 St.Rep.] ““These cases generally involve a sensitive
balancing of four principal factors * * * (Emphasis added.)
Again the majority states at p. 9 [p. 425 St.Rep.], that
‘Montana has adopted and applied the four factor balancing
test in Barker * * *”’ (Emphasis added.) Further, that “In this
case, the state’s rebuttal must be weighed and considered in
the light of the four factor test of Barker.” (Emphasis
added.) Thus it is obvious that the majority oversimplifies
the principles of Barker. The case is not so narrow and
restricted as the majority would lead us to believe. In it, the
United States Supreme Court stated:
“We regard none of the four factors identified above as
either a necessary or sufficient condition to the finding
of a deprivation of the right of speedy trial. Rather, they
are related factors which must be considered together
with such other circumstances as may be relevant. In
sum, these factors have no tailsmanic qualities; courts
must still engage in a difficult and sensitive balancing
process. But, because we are dealing with a funda-
mental right of the accused, this process must be carried
out with full recognition that the accused’s interest in a
speedy trial is specifically affirmed in the Constitu-
tion.’’ (Emphasis added.) 407 U.S. 533.
Many cases following Barker have recognized that the
principles are not so constricted as the majority assumes.
The foregoing quotation was set out and approved in its
entirety in Moore v. Arizona, 414 U.S. 25,94S.Ct. 188, 38
ASO
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents —
34 St. Rep. 420
L. Ed. 2d 183, 185, 186. As stated in United States v.
Dreyer, 533 F.2d 112, 115:
““# * * The Court emphasized that it did not intend the
list to be exhaustive nor any one factor dispositive and
that other relevant circumstances should also be
considered.’ (Emphasis added.)
It is the “other relevant circumstances” set forth above in
this opinion, which cannot be ignored for a proper applica-
tion of Barker.
The majority opinion purports to give full support to the
rejection by Barker of the “demand-waiver doctrine’. After
doing so, however, the majority goes all the way around the
horns of their dilemma and gives actual effect to the
““demand-waiver”’ rule. For this reason, we should look at
the United States Supreme Court’s statement in connection
with the rule in Barker:
“Such an approach, by presuming waiver of a funda-
mental right from inaction, is inconsistent with this
Court’s pronouncements on waiver of constitutional
rights. The Court has defined waiver as ‘an intentional
relinquishment or abandonment of a known right or
privilege.* * * * * * Courts should ‘induldge every
reasonable presumption against waiver.’ * * * and they
should ‘not presume acquiescence in the loss of
fundamental rights.’ * * * In Carnley v. Cochran, 369
U.S. 506, 8 L.Ed.2d 70, 82 S. Ct. 884 (1962), we held:
‘***Presuming waiver from a silent record is im-
permissible * * * there must be an allegation and
evidence * * *’”’ 407 U.S. 525, 526.
By, in effect, applying the ‘“demand-waiver rule’, the
AS1
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
majority does further violence to the law enunciated in
Barker:
“The nature of the speedy trial right does make it
impossible to pinpoint a precise time in the process
when the right must be asserted or waived, but that fact
does not argue for placing the burden of protecting the
right solely on defendants. A defendant has no duty to
bring himself to trial; the State has that duty as well as
the duty of insuring that the trial is consistent with due
process. Moreover, for the reasons earlier expressed,
societ has a particular interest in bringing swift prose-
cutions, and society’s representatives are the ones who
should protect that interest.’”’ (Emphasis added.) 407
U.S. 527.
The majority opinion at page 7 [p. 424 St. Rep.] attempts
to support its ultimate conclusion by citing the cases relied
on by the state, wherein delays in excess of that Judge Sorte
was confronted with were involved. It should be noted the
only United States Supreme Court case cited is United
States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L. Ed. 2d
627, decided February 23, 1966, over 6 years prior to
Barker. Since Barker is universally accepted as the Bible on
speedy trial issues, and since it has been a foundation for the
new federal rules and the decisions drastically reducing
permissible delays in bringing a case to trial, any authority of
“Ewell” is diluted, and to some extent superseded by
Barker. Further, the facts in Ewell are not at all similar to
those of the instant case, nor are the facts in the other cases
cited by the state and the majority.
It should be noted also that the delay in Ewel/ was not
“substantially in excess’’ of that in this case, as stated by the
A5S2
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
majority. In this case, the time between the filing of the
Information and the order of Judge Sorte was 585 days, as
compared to 576 in Ewell. At any rate, the quotation of the
majority from Ewell at page 10 [p. 426 St. Rep.] of the
majority opinion, is not consonant with the national trend
since 1966. The substance of the quotation is that unless
prosecution is “purposeful or oppressive” in delaying a
prosecution, there is no denial of a speedy trial. This is not
the law under the 1972 Barker decision and the cases and
rules applied since then. This has not been the law in
Montana, prior to the majority decision in this case.
The majority opinion makes this charitable statement at p.
13 [p. 428 St.Rep. |:
“In our view the record in this case amply demon-
strates that the defendants did not really want a speedy
trial.”’ (Emphasis added.)
This is an exceedingly transparent effort to bring this case
within the result of Barker, but this case is in no manner or
way similar under the facts of sarker. There, Barker was
anxiously awaiting the outcome of trials and appeals in the
related case of Manning, who was charged with the same
crime. Barker was gambling that his case would be dismissed
if Manning were eventually acquitted. The state obtained 16
continuances of trial dates, and Barker made no objection to
13 of these continuances. he thoroughly approved of the
delays until he lost his bet. There are absolutely no similar
facts in this case.
Moreover, a search of the record fails to disclose any
evidence to support this gratuitous statement of the
AS3
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
majority. Likewise, if there was any issue of fact before
Judge Sorte as to whéther or not the Cardens wanted to go to
trial, itis not apparent from the record. Under the established
rules of appellate procedure neither an issue of law nor an
issue of fact can be raised for the first time on appeal. The
majority completely by-passes this principle.
The discretion vested in the trial court and the pre-
sumptions in the trial court’s favor recognized in Steward
seem to have no meaning in this case. This Court stated in
Steward:
“This Court has held many times that a/l presumptions
are in favor of the trial court’s decision. {Citing cases. |
The district court had ample opportunity to view the
record and determine the inferences to be drawn from
the actions of the parties. We find no substantial
evidence on the record rebutting the presumption the
district court acted properly in holding the actions of
defendant and his attorney did not waive the right to a
speedy trial.’’ (Emphasis added.) 543 P.2d 183.
This Court further recognized the discretion vested in the
trial court in connection with the question of dismissal with
prejudice. In Steward, we said:
‘* * * The State may exercise discretion as to whether
the accused will be reprosecuted. The trial court should
possess similar discretion to disallow reprosecution if
the prejudice caused the accused and his defense by the
denial of a speedy trial would be compounded by a
subsequent prosecution for the same offense.” 543 P.2d
184.
If we continue to recognize the presumption in favor of the
ruling of the trial court there is no basis for reversal on this
AS4
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
record. If the majority bases its holding on manifest abuse or
lack of substantial evidence, it should so state.
The contention that the state has no responsibility for the
time consumed in connection with defendants’ 56 motions
attacking the Information creates a bit of a “‘stench”’. There
is NO way or no case to support any angle the state can use to
avoid responsibility for the time attendant to disposing 13 of
the 19 counts. The majority opinion denies that “the initial
filing of a 19 count Information in this case [was] un-
reasonable” at page 10 [p. 426 St.Rep.], but the state
admitted 13 counts were untenable. To say they were
improvidently filed would be undeservedly apologetic and
charitable. (See also in this connection: sec. 3.9(c)(e) of Std.
for Criminal Justice of American Bar Association and
Disciplinary Rules 7-103A and 1-102(A)(4)(5); Montana
Canons of Professional Ethics 3.9 (a)(c)(c).) See also:
United States v. Pauline Pipe (Mont.), Havre-Glasgow
Div., Federal District Court CR-77-10-HG, April 1977, for
a discussion concerning repeated indictment as denial of due
process which doctrine would not exclude application to
untenable Information counts.
The majority further condemns the defendants in relation
to the number of counts at p. 10 [p. 426 St.Rep.] of its
opinion, saying “‘this is largely speculative and unconvincing
in light of the 25 motions filed by the defendants attacking the
amended Information and the additional discovery motions,
venue motion, severance motion, and motion relating to
pretrial publicity.’ This charitable statement seems to
assume that all motions should be filed at the outset of the
proceedings. After a declaration of “‘unusual case’”’, I fail to
ASS
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
see any justification for the characterization “speculative
and unconvincing” to describe motions relating to venue and
pretrial publicity prior to the time the grounds had fully
accrued, or not filing discovery motions prior to the time
when it was determined whether or not the Information
would be dismissed.
The majority on p. 9 [p. 425 St.Rep.], recognizes that 544
days between filing Information and trial date was sufficient
to trigger an inquiry as to speedy trial in the following
language:
“It establishes a prima facie case of denial of a speedy
trial. State ex rel. Sanford v. Dist. Ct., supra. If this
prima facie case remains unrebutted, the issue is
settled.”’ (Emphasis added. )
Having purported to recognize the rule, the majority
emasculates it by ignoring that the burden is upon the state to
rebut the presumption of a denial of a speedy trial and it is the
duty of the state to bring the case to trial.
On p. 10 [p. 426 St.Rep.] of its opinion, the majority
blandly states:
‘In our view the state has pursued the prosecution with
reasonable diligence.”
This statement cannot be justified by the record and
particularly the state’s belated disqualification of Judge
Allen after presiding for 264 days, but, more than that, it
sidesteps the issues. The question is not limited to whether
the prosecution proceeded with ‘‘reasonable diligence” but
whether or not the defendants were deprived of a con-
stitutional right. If they were so deprived at the hands of the
AS6
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
state, it matters not whether it was the executive, legislative
or judicial branch at fault. (In this regard, see admissions by
state in Petition for Supervisory Control v. Arnold Olsen
(Goldman dismissal), April 26, 1977.)
The majority states at p. 13 [p. 428 St.Rep.]:
‘“* * * The further circumstance that defendants waited
until the eve of trial to file their motions illustrates the
transparent nature of their claim that they were
deprived of their constitutional right to a speedy trial.”
(Emphasis added. )
Let us take a good look at the above statement and then
compare it with the unanimous expression of the Court in
Steward. It was there said:
“The ‘appropriate motion’ is a motion to dismiss for
denial of a speedy trial. The proper time to assert the
right to a speedy trial is prior to the actual com-
mencement of the trial, usually at the time the trial date
is set, or the time the case is called to trial. Morse v.
Municipal Court, et al., 13 Cal.3d 149, 118 Cal. Rptr.
1,529 P.2d 46. Defendant, in the instant case, made his
motion to dismiss at the proper time.’’ (Emphasis
added.) 543 P.2ds 182.
We also stated in Steward:
“The district court here was correct in holding:
“o * * the Defendant's attorney would not be repre-
senting the Defendant if he would raise the question of
the fair speedy trial. This was incumbent upon the
County Attorney to do so under the circumstances.’ ”’
(Emphasis added.) 543 P.2d 182.
Here, the “tentative trial date’’ was June 17, 1976 and on
AS7
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
May 11, 1976 defendants filed their motion to dismiss for
lack of a speedy trial. How does this differ from the law
announced in Steward?
The majority attempts to circumvent Barker by constant
reference to lack of ‘dead time”’, pp. 10, 12 and 14 [pp. 426,
427, 428 St.Rep.] of its opinion, apparently on the theory
that if there is no extended interlude without some activity
there can be no deprivation of a speedy trial. There is a very
conspicuous lack of authority cited for this theory, and the
only mention in Barker of “dead time’”’ is in a totally different
context. There Justice Powell observed:
“# * * Most jails offer little or no recreational or
rehabilitative programs. The time spent in jail is simply
dead time.” (Emphasis added.) 407 U.S. 532, 533.
Any application of this statement to the instant case is
difficult to see or understand.
In passing I must comment that at p. 12 [p. 427 St.Rep.] of
its opinion the majority takes the position that the state or
“society” is left ‘‘naked of the means to protect itself in the
face of any protracted or spirited defense.”’ In light of the
facts of this case, the statement can only be viewed as an
apology for incompetence. If nothing else it is anew concept
that the state needs protection from individual defendants.
Society does have an interest in speedy trials, but it is not
adversary. it is in upholding and protecting the integrity of
the judicial system against the deficiencies and abuses of its
agencies which are in total control of the state government.
The defendants and society, rather than arch adversaries,
are in a position of parallel interests. It is ludicrous to make
the assertion, particularly in what the state has termed an
AS8
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
“unusual case’’ backed by state appropriation of ap-
proximately $1,933,737.00, against a handful of de-
fendants. This imbalance is not a naked society but ap-
proaches tyranny.
The thread of misunderstanding runs all through the
majority opinion and finally in the summary, p. 15 [p. 430
St.Rep.], asserts:
“# * * the circumstances of this particular case involve
substantial delay resulting primarily from the exercise
of statutory procedural rights inherent in Montana’s
criminal justice system for which neither the state nor
the defendants are chargeable* * *” (Emphasis added. )
This statement like the rest of the opinion misses the
principal point, that this is not a one or single element
matter, such as how the prosecution proceeded, that
controls. Rather it is the total effect of the system. If the
“Montana criminal justice system”’ is so structured that a
relatively simple, single transaction, alleged to be criminal,
results in a 544 day delay of trial, then there has been a denial
of a speedy trial, and it matters not whether it resulted in
action or inaction by the courts, prosecution or legislature, or
all in concert, the state is the system and totally responsible
for “statutory procedures inherent in Montana’s criminal
justice system”’.
Again, the majority persists in ignoring the basic rule of
Barker:
“* * * But the rule we announce today, which comports
with constitutional principles places the primary burden
on the courts and the prosecutors to assure that cases
are brought to trial. * * *°’ 407 U.S. 52°.
AS9
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
Again, on the matter of prejudice, I point out to the
majority that:
(1) District Judge Sorte in the memorandum supporting
his “order and judgment dismissing with prejudice”’ stated:
“In this State the law is that long delay establishes a
prima-facie case of denial of a speedy trial. This case, as
of July 28, 1976, was 586 days from the date of the
filing of the Information and is presently set for trial
August 16th, 1976, which is 605 days. Sanford (July
8th 1976) held delay of ten months (299 days) between
arraignment and trial establishes a prima-facie case of
denial of the right to a speedy trial. That situation is
present here as is the presumption of prejudice (Sanford
v. District Court, 33 State Reporter 644, State v.
Steward, 32 St. Reporter 1185 and cases cited. Un-
contradicted testimony given by defendants at a hear-
ing held May 17, 1976, in Great Falls, Montana,
clearly establishes prejudice beyond the presumption.
(See Exhibits admitted June 17, 1976.)”
(2) The state has offered no evidence to contradict this
testimony.
(3) The state has the burden to not only produce proof of
no prejudice but overcome the presumption of correctness of
Judge Sorte’s judgment.
(4) In State v. Keller, Mont. , 553 P.2d 1013,
1017, 33 St.Rep. 795, 798, this Court again stated one of the
major purposes of a speedy trial is to protect the accused in
the following language:
“In his concurring opinion in Barker, at page 121,
Justice White emphasizes one of the major purposes in
protecting the accused. Wholly aside from possible
A60
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep, 420
prejudice to a defense on the merits, the accused will be
subject to substantial restrictions on his liberty pending
trial, either in jail or while free on bond, ‘ ““* * * that may
disrupt his employment, drain his financial resources,
curtail his associations, subject him to public obliquy,
and create anxiety in him, his family and his friends.”’ ’
U.S. v. Marion, 404 U.W. 307, 320, 92 S. Ct. 455,
463, 30 L. Ed. 2d 468, (1971).”
In United States v. Dreyer, 3 C.C.A. march 1976, 533
F.2d 112, 115, it was stated:
‘This reading of Barker, which confines ‘prejudice’
to impairment to the defense, was explicitly rejected by
the United States Supreme Court in Moore v. Arizona,
414 U.S. 25, 26-27, 94 S.Ct. 188, 189-190, 38
L.Ed.2d 183, 185-186 (1973) (per curiam). There the
Court quoted approvingly from Justice White’s con-
curriing opinion in Barker v. Wingo, supra, 407 U.S. at
537, 92 S.Ct. at 2195, 33 L.Ed.2d at 121:
‘**Inordinate delay ‘wholly aside from possible
prejudice to a defense on the merits, may ‘seriously
interfere with the defendant’s liberty, whether he is free
on bail or not, and * * * may disrupt his employment,
drain his financial resources, curtail his associations,
subject him to public obloquy, and create anxiety in
him, his family and his friends.’ ‘‘ United States v.
Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d
468 (1971). These factors are more serious for some
than for others, but they are inevitably present in every
case to some extent, for every defendant will either be
incarcerated pending trial or on bail subject to sub-
stantial restrictions on his liberty.’
“The majority in Barker also recognized that an
A6l
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
accused is ‘disadvantaged by restraints on his liberty
and by living under a cloud of anxiety, suspicion, and
often hostility.’ Barker v. Wingo, supra, 407 U:S. at
533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. A proper
reading of Barker, therefore, must include within the
meaning of ‘prejudice’ any threat to what the Second
Circuit recently has termed ‘an accused's significant
stakes—psychological, physical and financial—in the
prompt termination of a proceeding which may ulti-
mately deprive him of life, liberty or property.’ United
States v. Roberts, 515 F.2d 642, 642 (2d Cir. 1975).”
(Emphasis added. )
(5) Our files do not reveal the defendants are proceeding
forma pauperis, but are using their own assets.
(6) Hence, the prejudice found and within the con-
templation of Barker, Marion and Dreyer and adopted by
Montana in Keller, has not been recognized by the majority
beyond “this is an unusual case”’.
(7) There has been no burden established by the majority
and no burden met by the state.
(8) The state has disposed of the entire issue of prejudice
summarily and totally ignored the uncontroverted principle
that the burden is upon the state to establish that there has
been no prejudice. The majority in stating “there is nothing
in the record to suggest” (Emphasis added.) any of these
types of prejudice has unwittingly conceded that the
prejudice element must be resolved 100% in favor of
defendants. Even if the burden was on the defendants the
conclusion of the majority would be untenable under the
authority of Dreyer and cases cited therein, and Keller.
I would ask the majority in this opinion, what is the state of
A62
State of Montana, Plaintiff and Appellant, v. Carden,
Defendants and Respondents
34 St. Rep. 420
the law as it has been announced in the many decisions
setting forth the doctrine that the judgment of the district
court is presumed to be correct and all doubt resolved in
favor of the prevailing party on appeal. How are we to view
the doctrine established by Steward, Sanford and Keller?
Are they still the law except in “unusual” or “political
cases’”?
I, for the reasons stated, feel Judge Sorte’s judgment
should be affirmed.
Hon. L. C. Gulbrandson, District Judge, sitting for Chief
Justice Hatfield, agrees with the dissent of Mr. Justice Daly,
to the extent said dissent imposes responsibility upon the
State of Montana for “institutional delays”’ in the criminal
justice system.
A63
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
IN THE MATTER OF THE )
APPLICATION OF: ) CV-77-61-H
)
JOHN J. CARDEN a/k/a ) ANSWER TO
JAMES J. CARDEN and ) PETITION
GLORIA (EUSEK) CARDEN, ) FOR A WRIT
) OF HABEAS
) CORPUS
AND
)
FORA WRIT OF HABEAS CORPUS )
)
OTHER APPROPRIATE RELIEF. _)
The Respondents answer the Petition for a Writ of Habeas
Corpus as follows:
1. Admit the allegations contained in Paragraph I of the
Petition.
2. Admit that the Petitioners are restrained of their liberty
to the extent that they have been released on bail.
3. Respondents deny that the sole claim for restraining
Petitioners of their liberty is a judgment, but, as is set forth in
Paragraph IV of the Petition, these Petitioners have been
charged by information in a State District Court of having
committed feiony crimes against the State of Montana; that
the judgment of the Montana Supreme Court marked
Exhibit “A”, attached to the Petition is correct, and
Respondents deny the remaining allegations of Paragraph
III of the Petition.
A64
4. Respondents admit so much of the allegations of
Paragraph IV as allege that the Petitioners were charged by
information in the District Court of Lewis and Clark County,
State of Montana, on December 20, 1974, and that there
was an arraignment set to be held on May 17, 1976, and that
the period between the time of filing the original information
and the time set for arraignment on the amended information
was 514 days; Respondents further admit that the State Trial
Court granted the Defendants’ Motion to Dismiss for lack of
speedy trial on July 28, 1976, and generally admit the time
table relative to the appeal to the Montana Supreme Court,
including the denial of the Defendants’ Petition for Re-
hearing on August 4, 1977; Respondents deny the remaining
allegations, and allege affirmatively that following a multi-
tude of defense motions to the original information, the state
was granted leave to file an amended information, which
reduced the original 19 counts to six counts, and the
arraignment on the amended information was set to be held
on May 17, 1976; that a trial date was then set for June,
1976, and the Defendants moved for a dismissal on the
grounds of lack of speedy trial, and at the same time, asked
that the trial Judge disqualify himself, which he did; the new
trial Judge continued the trial, and then granted Defendants’
Motion to Dismiss on July 28, 1976; the Petitioners are
correct in stating that the argument to the Montana Supreme
Court related solely to the issue of whether the Petitioners
herein were denied their constitutional right to a speedy trial;
this matter was argued to the Montana Supreme Court on
October 22, 1976, and when no decision was reached at the
end of the calendar year, and the Court was changed by
virtue of the retirement of oue of the Justices and the
elections of 1976 for another Justice, reargument was set for
February 16, 1977, before a new Court, and argued on that
A6oS5
date; that none of the delay alleged by the Petitioners from
the date of making their motion for dismissal in the State
Trial Court, in May, 1976, has been heretofore brought to
‘ the attention of any Court, much less made the basis for a
dismissal of the charges on the grounds of lack of speedy
trial, i.e., Petitioners, in the State Court, have urged that the
delay from the time of filing the information on December
20, 1974, to the time of the motion for dismissal in May,
1976, should be the basis for a dismissal of the case, but
these Petitioners have not made any motion in any State
Court that any additional delay should be a basis for a
dismissal. In other words, as to any delay following their first
motion for a dismissal for lack of speedy trial, these
Petitionrs have not exhausted their state remedies.
5. Respondents deny the allegations contained in Para-
graph V and VI of the Petition.
6. Respondents admit that the Petitioners have exhausted
their remedies available in the State Court as to the period of
time from the filing of the information until the Motion to
Dismiss for lack of speedy trial was made on May 11, 1976,
but deny that the Petitioners have exhausted their remedies
for any period of time thereafter; Respondents admit that the
Montana Supreme Court has expressly ruled that these
Petitioners were not denied their constitutional right to a
speedy trial under the constitution of the state or the United
States, for the time period of December 20, 1974, through
May 11, 1976. |
AFFIRMATIVE ALLEGATIONS
Respondents allege that as to the time period covered in
the opinion of the Montana Supreme Court, annexed to the
Petition, these Petitioners have exhausted their state
A66
remedies, and there is no further state trial and appellant
process, other than a direct appeal to the United States
Supreme Court, which is presumably not available until the
State Trial Court proceedings terminate in a conviction, that
is upheld by the Montana Supreme Court; however, as to the
remaining time period following May 11, 1976, which would
include the arguments, briefing and deliberations by the
State Trial Court upon the Defendants’ motion for dismissal
for lack of speedy trial, and the briefing, argument and
deliberations of the Montana Supreme Court thereafter,
there is an adequate state remedy through the state trial
process available, and these Petitioners have not exhausted
the state remedies. The Respondents are prepared to
proceed in this Court on the issue presented by the Pe-
titioners as confined to the time period encompassed by the
Montana Supreme Court opinion, i.e., December 20, 1974,
to May 11, 1976, and as to that time period, would ask that
this Court dismiss this Petition for the reasons set forth by
the Montana Supreme Court.
Dated: September 6, 1977.
Rick Westlund, Sheriff of Lewis and
Clark County
Mike Greely, Attorney General of
the State of Montana
By /s/ Robert S. Keller
Robert S. Keller, Special Assistant
Attorney General
State Capitol Building
Helena, Montana 59601
A67
CERTIFICATE OF MAILING
I, Robert S. Keller, do hereby certify that on the 6th day of
September, 1977, I served the foregoing Answer to Petition
for a Writ of Habeas Corpus upon the Defendants in the
above-entitled case, by mailing a true and correct copy of
said answer, first-class postage prepaid to:
Wade J. Dahood, Esq.
113 East Third Street
Anaconda, Montana 59711
Robert J. Emmons, Esq.
P. O. Box 2227
Great Falls, Montana 59401
/s/ Robert S. Keller
A68
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
IN THE MATTER OF THE _ )
APPLICATION OF: )
) CV-77-61-H
JOHN J. CARDEN a/k/a )
JAMES J. CARDEN and ) MOTION TO
GLORIA (EUSEK)CARDEN, ) AMEND FINDINGS
) AND JUDGMENT,
) AND MOTION FOR
) A NEW TRIAL
FOR A WRIT OF HABEAS |)
CORPUS and )
OTHER APPROPRIATE )
RELIEF. )
The Respondent moves the Court, pursuant to Rules 52
and 59, Rules of Civil Procedure, to grant an order
amending the Findings of Fact and Judgment, or, in the
alternative, to grant a new trial. Said motions are made for
the following reasons:
I. That the Court erred in finding that the disqualification
of Judge Allen involved a seven months’ delay; that the
A69
Findings of Fact should be amended to find that after Judge
Allen had received all of the briefs relative to the various
motions that have been filed, less than one month transpired
before his disqualification.
II. That the Court erred in considering discovery docu-
ments and matters relative to the disqualification of Judge
Allen that had not been previously presented in the State
Court, nor made a part of the hearing thereof; that the
Findings of Fact should be amended to delete any matters
construed to have been determined as a result of those
discovery documents.
III. That the Court erred in finding that the disqualifi-
cation of Judge Allen was for the purpose of gaining a tactical
advantage over the Petitioners; that the Court should find
that any delay involved in the disqualification of Judge Allen
was not occasioned for the purpose of delay, nor for the
purpose of taking an unfair advantage of the Petitioners.
IV. That the Court erred in considering Petitioners’ claim
of a denial of $»-edy Trial prior to judgment; that the Court
erred in isolating a limited period of time involved in
Petitioners’ claim of denial of Speedy Trial, and considering
that limited period of time, i.e, piecemeal review before final
judgment; that the Court should have rejected Petitioners’
claim until there had been the final judgment in the State
Court.
V. That the Court erred in finding that the Petitioners’
remedies were exhausted at the State level; that the Court
shouid have found that the Petitioners’ remedies were not
exhausted at the State level until there had been a final
judgment in the State Court.
VI. That the Court erred in failing to find that Judge Sorte
denied Petitioners’ Speedy Trial motion, and then on motion
for rehearing, and without hearing any further evidence,
A70
granted Petitioners’ 1, otion for a dismissal by reason of a
denial of a speedy trial.
VII. That the Court erred in finding that the Montana
Supreme Court had conceded that the delay had caused
substantial personal prejudice to the Defendants (Court’s
Opinion, p. 3); that the Court more properly categorized the
situation, at page nine, and the two findings are inconsistent.
VIII. That the Court erred in failing to find that Judge
Hatfield reduced the nineteen counts of the Information to
six counts, at the request of the State, pursuant to a
suggestion of Judge Hatfield that this would make the case
more manageable for trial, as distinguished from an
improper filing of nineteen counts.
Said motions will be made and based upon all of the
pleadings, records and minutes on file with the Clerk’s office.
Dated: May 22, 1978.
MIKE GREELY
Attorney General for the State
of Montana
By Robert S. Keller
Robert S. Keller
Special Assistant Attorney General
State Capitol Building
Helena, Montana 59601
A7\
NOTICE OF MOTION
TO JOHN J. CARDEN and GLORIA CARDEN,
Petitioners, and MSSRS. WADE J. DAHOOD, Esq.
and ROBERT J. EMMONS, Esq., their attorneys,
please take notice:
You will please take notice that the Respondent will make
the foregoing motions in open court at 9:30 o’clock a.m., on
the first day of June, 1978, in the courtroom of the
courthouse at Billings, Montana. ©
Dated: May 22, 1978.
MIKE GREELY
Attorney General for the State of Montana
By Robert S. Keller
Robert S. Keller
Special Assistant Attorney General
State Capital Building
Helena, Montana 59601
CERTIFICATE OF MAILING
I, Robert S. Keller, do hereby certify that on the 22nd day
of May, 1978, I served the foregoing motions of Respondent
State of Montana, by mailing a true and correct copy of said
motions, first-class postage prepaid to:
Wade J. Dahood, Esq. Robert J. Emmons, Esq.
113 East Third Street P. O. Box 2227
Anaconda, Montana 59711 Great Falls, Montana 59401
/s/ Robert S. Keller
A72
APPEARANCE FORM
SUPREME COURT OF THE UNITED STATES
No.
JOHN J. CARDEN, a/k/a THE STATE OF
MONTANA,
JAMES J. CARDEN, and
GLORIA (EUSEK) CARDEN, vs.
Petitioners, Respondent.
The Clerk will enter my appearance as Counsel for JOHN
J. CARDEN, a/k/a JAMES J. CARDEN and GLORIA
(EUSEK) CARDEN,
who IN THIS COURT Are:
Petitioners.
I certify that I am a member of the Bar of the Supreme
Court of the United States:
s/s Wade J. Dahood
WADE J. DAHOOD, ESQ.
KNIGHT, DAHOOD, McLEAN
& EVERETT
113 East Third Street
Anaconda, Montana 59711
Telephone (406) 563-3424
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.