Petitioners Reply Brief — Stoner v. Alabama

- Supreme ;

rites

DEC 16 1962

NO. 82-796 CLERK

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1982

JESSE BENJAMIN STONER,

Petitioner,

v.

STATE OF ALABAMA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT AND COURT OF

CRIMINAL APPEALS OF ALABAMA

REPLY BRIEF OF PETITIONER

FLEMING LEE

300 Independence Avenue, S.E.

Washington, D.C. 20003

(202) 546-5611

Attorney for Petitioner

TABLE OF CONTENTS

Table of Cases

Pre-indictment Delay Issue

Statute of Limitations

Conclusion

Certificate of Service

10

ij

I.

Table of Cases

Page

Dickey v. Florida, 398 U.S. 30 (1970) 8

Furman v. Georgia, 408 U.S. 238 (1972) 8,9

Leonard v. Hey, 269 S.E. 2nd 394 (S.Ct. W.Va. 7,8

1980)

United States v. Habig, 390 U.S. 222, 227 (1968) 9

United States v. Lovasco, 431 U.S. 783 (1977) 1,7,8,9

United States v. MacDonald, 102 S. Ct. 1497, 71 L. 6

Ed. 2nd 696, 703

United States v. Marion, 404 U.S. 307 (1971) 6,7,8

United States v. Provenzano, 423 F. Supp. 62 (S.D. 9

of N.Y. 1976)

ARGUMENT

PRE-INDICTMENT DELAY

Petitioner is the victim of by far the longest known

delay between alleged commission of a crime and indict-

ment for that crime -- a delay of nineteen years and eighty-

eight days -- during which period the State of Alabama was

abie to show no relevant activity on its part. The delay

grossly and cruelly violated the Petitioner's right to due

process of law, thus, preventing his mounting an effective

defense at his trial.

The Respondent dwelis on the speedy trial issue, but

Petitioner has never raised a speedy trial defense. The only

relevance of the right to speedy trial to this case is that the

philosophical basis for the speedy trial guarantee is obviously

offended by inexcusably long and prejudicial pre-indictment

delays. The requirement of speedy justice, whether before

or after indictment, has been part of the common-law tradi-

tion since the Magna Carta. United States v. Lovasco, 431

U.S. 783,800 (1977) (Stevens, J., dissenting).

According to sworn testimony of John A. Yung, IV,

Assistant Attorney General of Alabama, who testified at

Petitioner's trial, the investigation of Petitioner ended on

July 14, 1958. Mr. Yung testified:

“Q. Anyway the main thing is your having gone over

the information comprising the file. Has anything deve-

loped of a prosecutorial nature or evidentiary nature

since July 14, 19587

“A. Not that | am aware of.

“Q. You nave access to the entire file on Mr. Stoner

that the State of Alabama has, I'm sure.

2

“A. | have access to everything the Attorney Gener-

al's offices had. Whether or not there is anything else, |

do not know.” (Tr. 423).

Petitioner next called to the witness stand Burton

Dunn, who was one of the two prosecutors, who was

Assistant District Attorney in Jefferson County. Dunn

testified:

“Q. As such you have gone through and are familiar

with the files in this matter?

"A. Yes, sir.

“Q. You know from having reviewed that file that the

evidence that the State of Alabama has offered during

the course of this trial has been the same evidence they

had on July 14, 19587

“A. Yes, sir.

“Q. It has not changed in one regard, has it?

“A. No, sir.” (Tr. 419)

Thus, the record shows that the State of Alabama's two

prosecutors admitted that the investigation of petitioner

was concluded on July 14, 1958. Their testimony was at the

end of the trial in a motion hearing. The motion was over-

ruled. (Tr. 428)

Respondent's brief, in effect, admits that the pre-

indictment delay of 19% years prejudiced the defense when

it says that the petitioner presented a ludicrous defense.

Respondent misrepresents the trial. In violation of the First

Amendment, Respondent State of Alabama conducted a

political prosecution by going into petitioner's alleged pol-

itical, religious and social beliefs. Respondent cross exam-

ined him about what he publicly published in a newsletter

when he was a Candidate for Governor of Georgia in 1970,

asked him about his alleged lack of Church attendance and

other public statements. (Tr. 396, 397, et seq.) Such matters

3

were raised by Respondent tc cause bias against Petitioner.

Petitioner has never advocated violence. (Tr. 341, 342).

While the Respondent embellishes its brief with fre-

quent references to matters not in the record, a study of the

actual evidence reveals absolutely no continuing investiga-

tion of the alleged crime during the almost twenty year

hiatus before Petitioner's indictment.

Unable to show any justification for its delay, the

Respondent resorts to a set of abstract criteria which it says

might under suitable circumstances justify some prolonga-

tion of the period between a criminal event and the indict-

ment or arrest of someone for it, but here the Respondent

only proves Petitioner's case.

The criteria on pages 18 and 19 of Respondent's Brief

are paraphrased and italicized:

1. Would delay result in loss of evidence? In Petitioner's

case defense witnesses died, and documents were des-

troyed or lost in the normal course of events. Furthermore,

any delay of over 19 years would result in loss of evidence,

if only through the fading of memories.

2. Would delay help identify co-conspirators? No co-

conspirators were identified in Petitioner's case; there is

not even real evidence of a search for co-conspirators,

much less of any specific reason why the indictment of

Petitioner would have hindered their identification.

3. What effect would prosecution have on existing under-

cover operations? There is no proof that in fact there was

any such purpose for the delay in Petitioner's prosecution.

Considering the length of the delay -- not far short of a fifth

of a century -- the idea is laughable. A large proportion of

the participants in the events of the 1950s had died or

retired before Petitioner's indictment.

4. Are there alternatives to prosecution? One sees no

possible applicability of this question to the delay on Peti-

tioner’s case.

4

Pages 17 and 18 of Respondent's brief point out that a

prosecutor can decide when to prosecute. But a prosecu-

tor's discretion is limited, among other things, by the pros-

pective accused's rights to due process of law. Where the

right to a fair defense is prejudiced, there are strongly

countervailing factors. Additionally, the state interest in

stopping crime and deterring criminais is in no way served

by waiting over 19 years to prosecute. Proper social and

criminological purposes are not served by waiting to

prosecute a man in his fifties for the alleged crime of a 34

year old.” Petitioner was born on April 13, 1924. (Tr. 308)

Respondent's disseration (pages 18-23) on social con-

ditions in the 1950's and 1960's, replete with factual details

unsubstantiated by anything in the record, is a baid-faced

admission that the State of Alabama attempted to (and did)

gain a tactical advantage over Petitioner by stalling for

time. The State, if it were doing anything related to the

alleged crime, was admittedly waiting for the social climate

to change so that there would be greater community preju-

dice against a person accused of such wrongdoing.

Even had there been any acceptable excuse for the

early part of the delay, it would certainly not have counte-

nanced a delay of over 19 years.

In its effort to depict the loss of Petitioner's witnesses

and documentary evidence (as a result of Respondent's

delay) as of no consequence to Petitioner's defense, the

Respondent resorts to misrepresentation of the evidence. It

was not Petitioner's fault that his former employer's records

(which would have been valuable exculpatory evidence of

his location during the period of the alleged crime) were

destroyed in the ordinary course of business.

“There is no evidence of any criminal act by Petitioner,

or any charge against him, except for the one alleged in this

case.

5

A letter to Petitioner from the Regional Manager of

State Farm Insurance Companies of the Regionai Office

which supervised petitioner in 1958 stated:

“Because of the sheer volume of paper work created by

the very nature of an insurance operation, we find our-

selves in the position of purging the kind of reports you

referenced in your letter, as soon as we can legally do so.

Daily reports on settiement activity and all weekly expense

reports dating back twenty two years ago have been

purged from our files for some time.

“About all we would be able to do is confirm that you

were an employee of State Farm in May and June of 1958,

and that you did indeed operate out of an office in Dublin,

Georgia. (Tr. 558)

Likewise, no ma «© how many ways the Respondent

restates what it was Petitioner was charged with (Respond-

ent’s brief, pages 3 and 24), Petitioner's alibi evidence

would have been indisputably relevant and could have had

a decisive effect on a jury. Furthermore, Petitioner is not

“badly crippled” as offensively and dishonestly stated on

page 25 of Respondent's brief. The evidence at trial was

that Petitioner walks “with a slight limp.” (Tr. 319) Peti-

tioner thus could benefit from his evidence that he could

not have been anywhere near the scene of the crime.

Respondent's admission that “no one has any idea who

actually placed the bomb at the church” (Respondent's

brief, page 11), not only admits that the Petitioner, without

such knowledge, could scarcely have been involved in a

conspiracy to place the bomb, but also that a jury could

well have been swayed by evidence removing Petitioner

from the category of those who might have placed the

bomb.

In its further attempts to discount the effect of the

deaths of defense witnesses over the years, Respondent

makes the astonishing statement on page 24 of its brief that

if the witnesses had been alive they would not have been

permitted to testify to Petitioner's “self-serving” declara-

tions. It would be a novel rule of law which barred witnesses

from giving testimony favorable to an accused's defense.

Respondent makes a lot of its observation that Peti-

tioner's affidavit “does not suggest that the Petitioner in

anywise protested or took issue with Morris’ alleged state-

ment” that the police informant Morris had himself set off

the bomb. (Respondent's brief, pages 10-11) Why the Peti-

tioner’s apparent failure to take issue with Morris’ admis-

sion that Morris set off the bomb should be labeled by the

Respondent an “admission against interest” (page 24 of

brief) is mystifying. Certainly the testimony of witnesses

that a man other than the Petitioner had admitted commit-

ting the crime could have been of the greatest import to a

jury. Of that exculpatory testimony, as well as a great deal

of other. saving evidence that would have been available

over the years immediately following the explosion of the

bomb, the Petitioner was deprived by the State's delay.

The cases cited by the Respondent in its brief support

the Petitioner's claim. Delay prior to arrest or indictment

may give rise to a due process claim under the Fifth

Amendment. United States v. MacDonald, 102 S. Ct. 1497,

71, L. Ed. 2nd 696,703 (1982). inordinate delay may impair a

defendant's ability to present an effective defense: That

particular interest is protected primarily by the Due Pro-

cess Clause and statutes of limitation. Id. at 703-704. Due

Process protects against purposeful or tactical delay that

causes the accused actual prejudice at trial. Id. at 711.

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

a pre-indictment delay of only three years. There had not

yet been a trial. The accused did not claim or demonstrate

any specific prejudice, not was there any evidence of

governmental delay to gain tactical advantage. This Court

7

said that events of the future trial might demonstrate actual

prejudice, but that in the meantime the due process claims

were premature and speculative. Id. at 326.

Marion did not reach the question of when and in what

circumstances actual prejudice resulting from pre-accusation

delays would require dismissal of the presecution, and

suggested that “To accommodate the sound administation

of justice to the rights of the defendant to a fair trial will

necessarily involve a delicate judgment based on the cir-

cumstances of each case.” Id. at 325. Because of limitations

of space in this brief, Petitioner can only refer the Court

respectfully to Mr. Justice Brennan's concurring opinion in

Marion. in the last paragraph of his concurring opinion, he

wrote, “I think a three year delay even in that kind of case

goes to the edge of permissible delay.” Id. at 335. Such a

delay of over 19 years would be much less permissible in a

case such as Petitioner's.

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

concerned a mere 18 month delay in indictment, during

which little information was uncovered and two witnesses

died. The accused did not state how the witnesses would

have aided his defense. There had not yet been a trial, the

accused having moved to dismiss the indictment. The

Court found that the year and a half delay was justified in

that case by investigative necessity. (There is no evidence

in Petitioner's case that Alabama knew any more about him

in 1977 than it did in 1958.) The Court stated that investiga-

tive delay is fundamentally unlike delay undertaken to gain

tactical advantage, and it specifically limited its holding in

Lovasco to that particular case. (Id. at 795-796).

Respondent completely misrepresents and misconstrues

Leonard v. Hey, 269 S.E. 2d 394 (S.Ct. W.Va, 1980), a case

strongly favorable to Petitioner, when Respondent says

that Leonard rejected this Court's holding in Marion and

Lovasco and expressly refused to decide the case under

the Federal Constitution. Leonard involved pre-indictment

delay of 11 years, and the Supreme Court of West Virginia

held that for that reason there was prima facie prejudice to

the accused, and infringement on his constitutional right to

due process of law. and ihat unless the governement could

justify the delay by proving its reasonableness, the accused

was entitied to dismissal of the indictment.

Contrary to Respondert'’s assertions, Leonard relies

on, rather than rejects, Marion and Lovasco, quoting

approvingly from them. Id. at 396. It relies no less on them

than on Dickey v. Florida, 398 U.S.30 (1970), and it is

untrue to say that West Virginia decided Leonard “under

Dickey v. Florida.” Furthermore, the Leonard court's state-

ment that it need not interpret federal law to define due

process was purely gratuitous and certainly implied no

conflict between the West Virginia and the United States

Constitutions.

Petitioner rejects (and a reading of Leonard will dis-

prove) Respondent's ciaim that Leonard conflicts with the

holdings of this Court -- while there is no doubt that the

pertinent holdings of West Virginia and Alabama are in

conflict, with Alabama the State which is in conflict with the

relevant statements of this Court and with the Constitution

of the United States.

il

STATUTE OF LIMITATIONS

On page 23 of Respondent's Brief and Argument In

Opposition To The Writ, respondent admits “that the 1975

Code of Alabama would impose a statute of limitations

forever barring the prosecution,” which is an admission

that the Alabama State legislature imposed a statute of

limitations so as to comply with this Court's ruling in

Furman v. Georgia, 408 U.S. 238 (1972).

This Court has said “....Statutes of limitations which

provide predictable legislatively enacted limits on prosecu-

torial delay, provide the primary guarantee against bring-

ing overly stale criminal charges.” United States v. Lovasco,

431 U.S. 783,789 (1977). In summarizing his discussion of

this issue, petitioner contends that his case is analagous to

the case of United States v. Provenzano, 423 F. Supp. 62

(S.D. cf N.Y 1976). The court therein held that the limita-

tions of prosecutions’ provision expired with the capital

nature of the crime.

Since no one was killed in this case, there was no way

that the death penalty could have been imposed on peti-

tioner after this Court rendered its decision in Furman v.

Georgia, supra, in July of 1°72. Therefore, he was entitled

to Alabama's three year statute of limitations beginning at

that time, if not in 1958.

Criminal statutes of limitation are to be interpreted

liberally in favor of repose. United States v. Habig, 390 U.S.

222,227 (1968).

There is nothing in the record to support Respondent's

claim (page 23 of Respondent's brief) that Petitioner's case

was presented to the Grand Jury to stay within Alabama's

statute of limitations.

CONCLUSION

The Petitioner was clearly deprived of his right to Due

Process of Law by the Respondent's record-breaking delay

of over 19 years between alleged crime and indictment. The

Court has never dealt with precisely the same factual situa-

tion, but the statements of this Court in the most similiar

cases strongly support the Petitioner's claim and point to

the unconstitutionality of Petitioner's treatment by

Respondent and of the holdings of the Alabama courts in

10

his case.

The petition for writ of certiorari should be granted.

Respectfully submitted,

Fleming Lee

Attorney for Petitioner

300 independence Avenue, S.E.

Washington, D.C. 20003

(202) 546-5611

December 15, 1982

CERTIFICATE OF SERVICE

This is to certify that upon the date stated above, | have

served a true copy of the within and foregoing Reply Brief

of Petitioner, postage prepaid, to opposing counsel by

sending three copies to:

Honorable Charles E. Graddick

Attorney General of Alabama

250 Administrative Building

64 N. Union Street

Montgomery, Alabama 63130

Fleming Lee

Attorney for Petitioner