Petition — Alabama v. Taylor

Supreme Court brief1983

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——

LED

82-2107 JUN 25 1983

NO.

CLER<Z

Office - Supreme Co

FI urt, U.S.

ALEXANDER L. StEVas

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1982

STATE OF ALABAMA,

Petitioner

HENRY TAYLOR,

Respondent

PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME COURT AND

COURT OF CRIMINAL APPEALS OF ALABAMA

CHARLES A. GRADDICK

ATTORNEY GENERAL OF ALABAMA

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

(205) 834-5150

ATTORNEYS FOR PETITIONER

———T

NO.

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1982

STATE OF ALABAMA,

Petitioner

HENRY TAYLOR,

Respondent

PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME COURT AND

COURT OF CRIMINAL APPEALS OF ALABAMA

CHARLES A. GRADDICK

ATTORNEY GENERAL OF ALABAMA

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

(205) 834-5150

ATTORNEYS FOR PETITIONER

QUESTION PRESENTED

Where a party, who is not under

arrest or otherwise restrained because of

a certain charge, is indicted for said

charge but for a substantial period of

time after indictment the indictee cannot

be located and arrested pursuant to the

indictment and during said period of time

the indictee is utterly unrestrained as

regards the indictment and charge, should

the delay of trial resulting from

unsuccessful efforts to locate the

indictee during such period be judged by

due process standards or speedy trial

standards?

THE PARTIES

In the Circuit Court of Jefferson

County, Alabama, the Court of Criminal

Appeals of Alabama and the Supreme Court

of Alabama, the parties were: The State

of Alabama, who is the Petitioner herein

and Henry Taylor, who is Respondent

herein.

The matters at issue here were first

raised in the Circuit Court of Jefferson

County, Alahama and have been at issue

throughout these proceedings.

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED... ccccccccccseeeee Ante,l

THE PARTIES. ccccccvccsveccccveeseses Ante,!

TABLE OF CONSTITUTIONAL PROVISIONS..iii

TABLE OF CASES. cccccccccevccccvescvvetil

TABLE OF STATUTES... cccccccccssesveeVil

OPINIONS BELOW. .cccccccsccccsccccveed

JURISDICTION. .cccccccccsccesceseseese

CONSTITUTIONAL PROVISIONS INVOLVED..2

STATUTORY PROVISIONS INVOLVED.......4

STATEMENT OF THE CASE AND FACTS.....4

SUMMARY OF THE ARGUMENT..ccccecsevceeld

ARGUMENT, cccccccccccccsccescvcccccce dd

REASON FOR GRANTING THE WRIT:

THIS CASE PRESENTS AN IMPORTANT

QUESTION OF FEDERAL CONSTITU=

TIONAL LAW WHICH HAS NOT BEEN

BUT OUGHT TO BE SETTLED BY THIS

HONORABLE COURT .ccccccesceeeeel

I. THIS HONORABLE COURT HAS

NEVER ADDRESSED THIS

Ce bee bese nee ences sseeat

TABLE OF CONTENTS CON'T.

PAGE

II. THIS HONORABLE COURT

SHOULD ADDRESS THIS

Ger cus oh bb bee ees Coes 22

A. PRACTICAL CONSIDERA=-

TECTED sc eeeesesotsctee 22

B. CONFUSION IN THE

STATE AND LOWER

FEDERAL COURTS..... 29

C. SPEEDY TRIAL IS

BASED ON CONCERNS

AND IS JUDGED BY

STANDARDS WHICH

ARE IRRELEVANT TO

POST=-INDICTMENT,

PRE=-ARREST DELAY... 35

III. FORM OVER SUBSTANCE; THE

NISCOURAGEMENT OF ORDERLY

EXPEOL TIGR. cevcneseseteee

CG a As. o's CKO 666 6s eee

CERTIFICATE OF SERVICE. .ccccccccceecedd

TABLE OF CONSTITUTIONAL PROVISIONS

PAGE

Constitution of the United States,

Amendment BiGicsvneedseesee eer 2

Amendment Fourteen.ccccceseess 3

TABLE OF CASES

PAGE

Alabama v. Prince,

~6©423 «UCAS. 876, 46 L.Ed.

26 108, $6 8.Ce. 147

CEO To ve ccecewceeceeerererweves Sa

Barker v. Wingo,

407 U.S. 514, 33 L.Ed.

2d 101, 92 S.Ct.

2182 TAR lalénesteseceeteswewese 22,29,

Dickey v. Florida,

398 U.S. 30, 90

S.Ct. 1564, 26

LeEd. 2d 26 (1970). cccceeeveee 36

iii

TABLE OF CASES CON'T.

Dillingham v. United States,

432 U.S. 64, 46

L.Ed. 2d 205,

96 S.Ct. 303 CLO F She ctweveven

Ex parte: State,

So. 2d (S.Ct.

Al . a aes na noes 6668

Hoffa v. United States,

385 U.S. 293, 17

Le. Ed. 24 374, 87

SS. Ct. 408 (1966) wecscceses

Hopt v. Utah,

110 U.S. 574, 28 L.Ed.

262, 4 S.Ct. 202 (1884).....

Illinois v. Allen,

397 U.S. 33/7, 25 LEG.

24 353, 90 S.Ct. 1057

@) go. | eer Serer a a oy ee ee

Kent v. Dulles,

35/7 U.S. 116, 2 Le Ed.

26 1204, 78 8.Ct. iii3

CIGSSdccvccsevsscevsesacescerses

Klopfer v. North Carolina,

386 U.S. 213, 18 L.Ed.

24d 1, 87 S.Ct. 988

(1967) cccccccccvscccscccces

Lavasco v. United States,

$32 F.2d 59 (8th Cir.

Ciys > Pree anata aa et ae ye a ee a

18,

TABLE OF CASES CON'T.

Lewis v. United States,

146 U.S. 3/0, 30 LBA.

1011, 13 S.Ct. 136 (1892)...

Lockman v. Connecticut,

423 U.S. 991, 46 L.Ed.

2d 309, 96 S.Ct. 403

CES TR ences sewer nbecewecnoees

Moore vy. Arizona,

414 U.S. 25, 38

L. Ed. 24 183, 94

BS.) Ces TGS. CAGTS) “cocsvoses

People v. Yeager,

84 Ill. App. 3rd 415,

40 Ill. Dec. 549, 406

N.E. 24 555 (1980). cc ccceee

Preston v. State,

338 A. 2d 562 (S.

Ce. Del., 1972) a, oe. ee, ee ee ee

Prince v. Alabama,

(5th Cir. it x 3 Bare rea

Prince v. State,

50 Ala. App. 368,

279 Ga. 20 539 (i973) cacvace

Smith v. Hooey,

393 U.S. 374, 21 L.Ed.

2d 607, 89 S.Ct. 575

PiSGR ll ckkeoutekeawe se eceué eu eene

PAGE

TABLE OF CASES CON'T.

PAGE

Smith v. United States,

Jee Usse Ac 2 Us

Ed. 24 1041, 79

Bs a 99) (1959) eae we oD ow oe 47,5.

State v. Holtslander,

102 Idaho 306, 629

P. 24 702 CLSSL devesevosseces 31,33,34

State v. Ivory,

278 Or. 499, 564 P. 2d

1039 (1977 )eccsvvevveveseeves 31,33,34

State v. Jones,

76 Or. App. 479, 611 P.2d

1200 CR bees te 6 00:0 600800066 26,31,34

State v. Lockman,

169 Conn. 116, 362

A.24 920 (1975) i ot - Em et Oo mw Fe me 31,45

State v. Larson,

623 P.2d 954

a x Mont., Ds te wewéaeeuKs 26,34

Taylor v. State,

So. 24

Toe Me MEOs LOOT cccvccseue 158

United States v. Lavasco,

431 U.S. 783, 52

L.Ed. 24 752

Or maces Bee C197 Tic cccceces Lay lee

TABLE OF CASES CON'T.

PAGE

United States v. MacDonald,

435 U.s. 850, 56

L.Ed. 2€ 18, 98 S.Ct.

ESET CASTOR) coccsedescevosses B88

United States v. MacDonald,

456 U.S. 1, /1l Le

Ed. 2d 696, 102

BR. Ces 2497 CISS2Z) cewvsceace LA k65

19-21,

39,44,

United States v. Marion,

404 U.S. 307, 30 L.

Ed. 2d 468, 92S.

CO. Bee CATE? Ss ccetesssvceee Basan

21,38,

43,45,

Vickery v. State,

408 So. 2d 182

(Cr. App. Ala. L9GL b.60 6606008 27

TABLE OF STATUTES

PAGE

Code of Alabama 1975

Title ise § Ree Sel IOs ccwctess 4

Title 15, § LS —S—Teccceeseces 47

United States Code

Title 28, © L297 co cccesoeseses 2

vil

OPINIONS BELOW

The opinion of the Court of Criminal

Appeals of Alabama reversing and

rendering Respondent Taylor's conviction

is not as yet reported but will be

reported as follows:

Taylor v. State, So.

2d (Cr. App. Ala.,

1983)

A copy of the same is submitted in

Appendix "A" to this petition.

The order of the Supreme Court of

Alabama denying the writ of certiorari in

this case are not as yet reported but

will be reported as follows:

Ex parte: State; In re:

Taylor v. State, So.

2d (S. Ct. Ala., 1983)

A copy of the same is submitted in

Appendix "B" to this petition.

JURISDICTION

The order of the Supreme Court of

Alabama denying the writ of certiorari in

this case was issued on April 29, 1983,

and this petition is filed within sixty

days of that date.

The Jurisdiction of this Honorable

Court is invoked under 28 United States

Code, Section 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The Court of Criminal Appeals of

Alabama found that Respondent Taylor was

denied his right to a speedy trial under

the Sixth Amendment to the Constitution

of the United States, which reads as

Follows:

"In all criminal prosecutions,

the accused shall enjoy the

right to a speedy and public

trial, by an impartial jury of

the state and district wherein

the crime shall have heen \

committed, which district shall

have been previously

ascertained by law, and to be

informed of the nature and

cause of the accusation; to be

confronted with the witnesses

against him; to have compulsory

process for obtaining witnesses

in his favor, and to have the

assistance of counsel for his

defense." (Emphasis supplied)

The Petitioner State insists that

Respondent Taylor's claim should have

been decided under the Due Process Clause

of the Fourteenth Amendment to the

Constitution of the United States, which

reads as follows:

",..All persons born or

naturalized in the United

States, and subject to the

jurisdiction thereof, are

citizens of the United States

and the State wherein they

reside. No State shall make or

enforce any law which shall

abridge the privileges or

immunities of citizens of the

United States; nor shall any

State deprive any person of

life, liberty, or property,

without due process of law; nor

deny any person within its

jurisdiction the equal

protection of the laws..."

(Emphasis supplied.)

STATUTORY PROVISIONS INVOLVED

Respondent Taylor was convicted of

common law robbery and sentenced under

Title 13, Section 13-3-110, Code of

Alabama, 1975. See Appendix "C",

STATEMENT OF THE CASE AND THE FACTS

The Court of Criminal Appeals of

Alabama accurately stated the case and

the facts which led to Respondent

Taylor's speedy trial claim, as follows:

"The defendant was indicted and

convicted for robbery. Alahama

Code Section 13-3-110 (1975),

Sentence was ten years'

imprisonment. The only issue

argued on appeal is the denial

of the defendant's Sixth

Amendment right to a speedy

trial.

"The facts governing this issue are

set’ forth in chronological order.

"May 24, 1976

"May 26, 1976

"July 26, 1976

"September 10,

1976

Robbery committed.

The defendant was

arrested. He was

on parole for a

previous unrelated

offense.

Sometime after this,

the defendant's

parole was revoked

because of the

robbery charge and

the defendant was

returned to Kilby

State Penitentiary.

The District

Attorney had a hold

Placed against the

defendant.

The grand jury ‘no

billed' the charges

against the defend-

ant. This was an

error or mistake

resulting from

confusion over

the names of the

three men involved

in the robbery and

the role each

played.

Sometime after this

action by the grand

jury, the hold

against the defend-

ant was withdrawn.

The defendant was

indicted.

"September 28, An arrest warrant

1976 for the defendant

was returned not

executed for the

following reasons

checked on the

warrant: ‘moved, no

forwarding address';

incorrect address';

‘not employed at

listed location’.

At this time the

defendant was still

in the state

penitentiary.

"July 27, 1977 The defendant was

released from prison

after completing his

sentence. No

limitations

requirements or

restrictions were

placed upon his

activities upon

release. There were

no ‘holds' or

detainers against

the defendant.

pon release, the

defendant moved to

Montgomery 1) where

he openly resided

and worked until his

arrest.

lfhe instant case arose in Fultondale,

Jefferson County, Alabama; the City of

Montgomery is located in Montgomery

(con't)

“January 3, A second arrest

1978 warrant was issued

for the defendant

and returned marked

‘does not reside at

address; not known

at this address’.

This address was the

same as that of the

Warrant of September

26, 1976.

"December 27, The defendant's

1978 ‘court file' was

rebuilt after the

Original had been

‘lost or misplaced',.

The State Board of

Administrations (the

predecessor of the

State Board of

Corrections) was

ordered to have the

defendant present.

"January 3, An ‘alias capias

1979 order' was issued

after the original

had been lost.

"January 18, The case was set for

1979 arraignment and the

Board of Corrections

was ordered to have

defendant present.

(footnote 1 con't)

County, Alabama. A distance of about one

hundred miles separates Jefferson and

Montgomery counties.

“January ?,

198]

"February 13,

1981

"May 26, 1981

(Taylor v.

(Cr. Ay

After the defendant

was involved ina

traffic accident in

Montgomery, he was

arrested for the

1976 robbery.

Counsel was

appointed to repre-

sent the defendant

and the defendant

was arraigned.

Trial was set for

May 26, 1981.

The defendant filed

a motion to dismiss

the indictment on

the basis of the

denial of a speedy

trial. The motion

was heard, evidence

presented and

denied.

"The defendant was

tried upon a

stipulation of facts

and adjudged

guilty.

"(The judgment entry

recites that all of

this occurred on May

25, 1981.)

State, _ So. 2d

pp. Ala. ’ 1983] ;

Appendix "A", pages 1-6)

To this need only be added: (1) After

the detainer was withdrawn in 1976, no

other detainers or warrants were lodged

against Respondent Taylor with the prison

authorities. He testified that he knew

nothing of the instant charge until he

was arrested on the indictment in January

of 1981, about five (5) months before

trial,2

2. Although the Court of Criminal

Appeals may have put very little

emphasis on it, the Court's statement as

to Respondent Taylor's claim of loss of

memory about the date of robbery is not

exactly accurate. Actually, Respondent

Taylor denied any knowledge at all of the

2"...1 didn't know anything about it [i.e

the indictment] until I had a car wreck

Christmas Fve night...." (R. 16)

robbery and even denied his May 26, 1976,

arrest by the Fultondaie police. 3

3. Following the denial of his

motion to dismiss, Respondent Taylor

stipulated to the facts of the robbery in

which he was the gunman. (R. 133-137)

On appeal the Court of Criminal

Appeals of Alabama reversed and rendered

Respondent Taylor's conviction on the

grounds that he had been denied a speedy

trial. The Court found that the delay in

locating Taylor was long enough to

trigger speedy trial inquiry. Although

the Court found not even a suggestion of

intentional delay on the part of the

State, it did find that the State was

negligent in not looking for Taylor in

3"...Q. Weren't you arrested on this

charge by in Jefferson County on May 24,

1976?

"A. No." (R. 16)

the penitentiary during the first ten

months of this time. The Court found

that Respondent Taylor's assertion of his

right on the day of trial, some five

months after his arrest was not tardy.

Finally, the Court, finding no evidence

of prejudice, presumed prejudice from the

length of the delay. On February l,

1983, the Court of Criminal Appeals

reversed and rendered Respondent Taylor's

conviction. (Appendix "A")

The State applied for rehearing, but

the application was overruled on March l,

1983.

The State petitioned the Supreme

Court of Alabama for review by writ of

certiorari raising the issued raised

here. The State's petition was denied on

April 29, 1983. (Appendix "B")

SUMMARY OF THE ARGUMENT

At issue in this case is the

question of what standards apply in

measuring the delay of trial occasioned

by unsuccessful efforts to locate

indictees.

This Honorable Court has never had

occasion to address the issue of post-

indictment, pre-arrest delay. United

States v. Marion, (404 U.S. 307, 30 L.

Ed. 2d 468, 92 S. Ct. 455 [1971]), United

States v. Lavasco, (431 U.S. 783, 52 L.

Ed. 2d 752, 97 S. Ct. 2044 [1977]) and

United States v. MacDonald, (456 U.S. l,

71 L. Ed. 24 696, 102 S. Ct. 1497

[1982]), the cases which are usually

cited as controlling post-indictment

delay each involved an arrest on the

indictment within two weeks after the

indictment's return.

This Honorable Court ought to

address this issue for the following

reasons: (1) Practical considerations,

including the conflict between an accused

person's right to be personally present

at his criminal presecution and the

limitations placed on the government

interference with the liberty of movement

of citizens; the practical difficulties

in locating indictees, the seriousness of

many cases which involve unlocatable

indictees, and the high premium which is

placed on evading criminal prosecutions

when speedy trial standards are applied

to post-indictment, pre-arrest delay, (2)

Manifest confusion in the lower state and

federal courts which result from efforts

to apply speedy trial standards to an

entirely inappropriate situation, and (3)

the fact that the speedy trial policy and

Standards bear no relation to the

post-indictment, pre-arrest situation.

The policy of applying speedy trial

standards to post-indictment, pre-arrest

delay places form over substance,

encourages the prosecution to delay

presenting cases to grand juries and

thereby contributes to trial delay while

depriving unlocatable accused persons of

the protection of grand jury

proceedings.

ARGUMENT

Although Respondent Taylor was

arrested in 1976, the case was "no

billed" by the Grand Jury about two

months later, and at that time the

detainer which had been placed against

him was removed. There is no suggestion

of any speedy trial rights with regard to

this period. See United States v.

MacDonald, 456 U.S. 1l, 71 L. Ed. 2d 696,

102 S. Ct. 1497 (1982)

From that time until his final arrest in

January of 1981, the charges represented

by the indictment had no legal or

practical effect on Respondent Taylor.

At issue in this case is the period

after indictment, during which Respondent

Taylor's status as to the instant charges

remained unchanged. Indeed, Respondent

Taylor claimed that he knew nothing about

the instant charges until his arrest some

five months before trial. The Court of

Criminal Appeals found that the State was

negligent in its efforts to locate

Taylor. However, the Court could not

find any indication of intentional delay.

The record will not support a suggestion

that the prosecution was ever dropped or

abandoned. If the officers charged with

locating Respondent Taylor did not look

for him in prison during the first ten

months, there is no indication that they

had any reason for thinking he was in

prison. If they didn't seek Respondent

Taylor in Montgomery where he was

allegedly living openly, there was no

reason why they should seek him there

either.

On the other hand, there is in this

case no suggestion of actual prejudice to

Respondent Taylor's defense. The Alabama

Courts found prejudice presumed from the

length of the delay. However, as will he

discussed more thoroughly below, the

presumption of prejudice is based on

concerns which are irrelevant to

Respondent Taylor.4

4See page 40-41, below.

In this case, the Court of Criminal

Appeals blindly followed the speedy trial

rules laid down by this Honorable Court

in cases with facts radically different

from those of the instant case. In fact,

this Honorable Court has never addressed

this particular issue at all; as more

particularly appears below:

REASON FOR GRANTING THE WRIT:

THIS CASE PRESENTS AN IMPORTANT

QUESTION OF FEDERAL CONSTITU=

TIONAL LAW WHICH HAS NOT BEEN

BUT OUGHT TO SETTLE BY THIS

HONORABLE COURT.

THIS HONORABLE COURT HAS NEVER

ADDRESSED THIS QUESTION,

This Honorable Court has on several

occasions addressed the question of

pre-trial delay and has recognized and

addressed three general types of pre-

trial delay:

(1) where a person is arrested and

later indicted 5 and still later brought

to trial, this Court has held that the

right to a speedy trial attaches at

arrest and that the delay from the time

of the crime until arrest is measured by

general due process considerations.

Dillingham v. United States, 423 U.S. 64,

46 L. Ed. 24 205, 96 S. Ct. 303 (1972)

(2) Where a person is not arrested

until after indictment, this court has

held that the right to a speedy trial

attaches at indictment and the pre-

indictment delay is measured by due

process standards. United States v.

Marion, 404 U.S. 307, 30 L. Ed. 2d 468,

92S. Ct. 455 (1971); United States v.

97 S. Ct. 2044 (1977)

Stn this argument "indicted" will be used

as a short expression for "indicted or

otherwise formally charged."

(3) Where a person is arrested or

indicted and the charges are dismissed

without trial hut the person is later

re-arrested or re-indicted, the right to

a speedy trial attaches at the second

arrest or indictment and the due process

standards control the prior delay.

United States v. MacDonald, 456 U.S. l,

71 Le. Ed. 2d 696, 102 S. Ct. 1497 (1982)

There is, however, a fourth common

situation, which is presented by the

instant case and which this Honorable

Court has never had the opportunity to

address. This is the situation where a

party is indicted but cannot be located

and for this reason is not arrested or

otherwise restrained under the indictment

for a substantial period of time

thereafter. At first glance, it might

appear that Marion, Lavasco and

MacDonald, above, control this situation

and indeed most courts have so assumed,

but a close examination of these cases

reveals that this issue was not before

the Court in those cases.

In Marion the defendants were

indicted on April 21, 1970, and filed

their motion to dismiss on May 5, 1970.6

They, therefore, had to have been

arrested under the indictment within the

ensuing twelve (12) days. The

indictment in Lavasco was returned March

6, 1975,’ and the defendant moved to

dismiss it on March 18, 1975.8 Thus,

6united States v. Marion, 404 U.S. 307,

455 (1971)

Tunited States v. Lavasco, 431 U.S. 783,

7 , . . , 5, 97 Ss. Ct.

2044 (1977)

8Lavasco v. United States, Judge Henley's

dissent, 532 F. od 59, 63 (8th Cir.,

1976)

Lavasco too must have been arrested

within twelve (12) days of the

indictment. MacDonald was indicted on

January 24, 1975, and "...He was promptly

arrested and then released on bail a week

later...." United States v. MacDonald,

435 U.S. 850, 852, 56 L. Ed. 2d 18, 22,

98 S. ct. 1547 (1978) Thus, the delay in

locating and arresting the indictees in

Marion, Lavasco and MacDonald did not

exceed two weeks. The issue before the

Court in Marion, Lavasco and MacDonald

was the substantial time period between

the crime and the indictment, not the

inconsequential periods between

indictment and arrest.

This case presents this Court's

first opportunity to address the issue of

substantial post-indictment, pre-arrest

delay.

II.

THIS HONORABLE COURT SHOULD

ADDRESS THIS QUESTION.

The reasons this Court should

address this issue fall into three

catagories: (1) The unique practical

considerations in this area, (2) the

confusion in the State and lower federal

courts which results from (3) the

application of the speedy trial standards

of Barker v. Wingo, (407 U.S. 514, 33 L.

Ed. 24 101, 92 S. Ct. 2182 [1972]) to

situations which are entirely different

from that which gave rise to the Barker

standards.

PRACTICAL CONSIDERATIONS

The common situation of the

unlocatable indictee presents unique

problems present in neither the

investigatory phase prior to indictment

nor the trial phase after the accused has

heen arrested,

First, there is the conflict a

constitutional mandate and constitutional

limitations, hetween a right of the

indictee as an accused person and the

general rights of citizens to privacy and

freedom of movement. On the one hand, an

accused has the fundamental right to be

personally present at his trial. Hopt v.

Utah, 110 U.S. 574, 28 L. Ed. 262, 45S.

Ct. 202 (1884); Lewis v. United States,

146 U.S. 370, 36 L. Ed. 1011, 13 S. Ce.

136 (1892) In extraordinary circum-

Stances an accused can be held to have

waived such right. (Illinois v. Allen,

397 U.S. 337, 25 L.Ed. 24 353, 90 S.Ct.

1057 [1973]), but the fact that the

police cannot locate an indictee would

hardly justify dispensing with his

personal presence at trial. On the other

hand, freedom of movement is one of our

basic liberties.? In addition, consti-

tutional limitations are placed on

government in this country in order to

guarantee every citizen's right to move

about, change his address, job or life

style without embarassment or govern-

mental interference. An unarrested

indictee has these same protections, but

governmental interference is exactly what

is required if an indictee is to he

9", ..Freedom of movement across frontiers

in either direction, and inside frontiers

as well, was a part of our heritage.

Travel abroad, like travel within the

country, may be necessary for a liveli-

hood. It may be as close to the heart of

the individual as the choice of what he

eats, or wears, or reads. Freedom of

movement is basic in our scheme of

values...” Kent v. Dulles, 357 U.S. 116,

Tees 2 beth. Be Laees tales 78 8.Ct..- 2273

(1958)

arrested and brought hefore a court to

answer charges. Thus, on the one hand,

our Constitution requires the government

to interfere with the indictee but, on

the other hand, severely limits the

government's power to interfere with

citizens, including unarrested

indictees.

In locating indictees the police are

normally dealing with people who avoid

police contact as a matter of course,

especially when they have some reason to

think that the police are interested in

them. In seeking information and other

assistance in locating an indictee, the

police usually have to rely on friends

and relatives of the indictee, persons

more interested in assisting the indictee

than the police. See, for example,

People v. Yeager, 84 Ill. App. 3rd 415,

40 Ill. Dec. 549, 406 N.E. 2d 555, 558

(1980). In addition, prolonged delays in

arresting indictees usually result, as in

the instant case, from the indictee's

leaving the city or state where the

charges are pending. In such cases

reliance must be placed on the police

agencies of other cities and states.

While the cooperation among police

agencies in this country is excellent,

human nature being what it is, local

cases take precedence over the needs of

other jurisdictions. See, for example,

State v. Larson, 623 P.2d 954, 656-657

(S.Ct. Mont., 1981).

In judging police efforts in

locating indictees, the lower courts tend

to use hindsight. The lower courts, for

example, are quick to point out that the

police could have located an indictee by

examining the welfare rolls, (State v.

Jones, 46 Or. App. 479, 611 P. 2d 1200

[1980]), or the veterans' affairs'

agency, voter rolls or hank records in

another state, (People v. Yaeger, 84 Ill.

App. 3rd 415, 40 Ill. Dec. 549, 406 N.E.

24 555, 557 [1980]), or by identifying

the indictee's child on school rolls or

the indictee's common law wife ina

particular newspaper's birth

announcements. (Vickery v. State, 408

So. 24 182, 183 [Cr. App. Ala. 1981)].1°

The courts can make such judgments,

because with hindsight they know where

the indictee was and what he was doing

during the period when the police could

not locate him. But, the police at such

time had no way of knowing which records,

newspapers or places to search for infor-

mation. In addition, many of these

records are not available except by court

order.

lO0cited and relied on by the Court of

Criminal Appeals in this case.

Yet, the cases which involve delay

resulting from failure to locate an

indictee include some of the most serious

cases which come before our courts.

Persons who are able to avoid arrest for

a prolonged period of time are often

people with considerable skill or money

or the backing of an organization. These

include the professional criminals,

racketeers and terrorists who present the

gravest threats to our society and

constitutional system.

A final practical problem concerns

the placing of a high premium on the

evasion of the law. Most, though not

all, courts hold that an accused may not

take advantage of delay which resulted

from his actively avoiding arrest.

However, it is usually impossible to say

with any certainty whether the actions hy

the indictee which made him unlocatable

were intended to produce that result or

merely did so coincidently. Thus,

applying speedy trial standards to post-

indictment, pre-arrest delay in effect

gives the indictee who is skillful enough

to avoid detection without aspearing to

do so, the power to create a perfect

defense for himself, without regard to

the facts of the case.

CONFUSION IN THE STATE AND

LOWER FEDERAL COURTS

In examining the question of post-

indictment pre-arrest delay the lower

courts universally apply the four part

balancing test of Barker v. Wingo, (407

U.S. 514, 33 L.Ed. 24 101, 92 So.Ct. 2182

[1972]), making few, if any, adjustments

for the peculiar problems of post-

indictment, pre-arrest situation. As

will be discussed in the next section,

Barker was based on entirely different

facts and most of its standards are

difficult or impossible to apply in this

situation.11 The efforts of state and

lower federal courts to fit the "square

Barker peg" into the "round hole" of

post-indictment, pre-arrest delay has

resulted in such a jumble of authority

that the constitutional effect of such

delay depends entirely on the

jurisdiction. For example:

The "triggering device," of Barker

(407 U.S. 514, 530, 33 L.Ed. 2d 101, 92

S. Ct. 117 [1972]) length of the delay,

has been found to have been set off by

delays in locating the indictee of only a

llsee pages 41-42, below.

few months. £E.G., six and a half months,

State v. Jones (46 Or. App. 479, 611 P.

2d 1200, 1202, [1980]); nine months,

State v. Holtslander, 102 Idaho 306, 629

P. 2d 702, 705 [{1981]) and ten and one

half months, State v. Ivory, (278 Or.

499, 564 P. 2d 1039 [1977]}).

In judging the reason for the delay

the courts tend to treat the failure to

locate the indictee as being of about the

same gravity as the failure to locate an

important but not indispensible witness.

As stated above, most courts refuse to

allow an accused to profit by intentional

efforts to evade arrest. State v.

Lockman, 169 Conn. 116, 362 A 2d 920

(1975); cert. den. 423 U.S. 991, 46 L.Ed.

2d 309, 96 S.Ct. 403. However, at least

one court found a denial of speedy trial

on the basis of delay which resulted

solely from the indictee's flight from

the state to avoid arrest and subsequent

resistance to extradition. Prince V-

Alabama, 507 F.2d 693 (Sth Cir. 1975)712

cert. den. 423 U.S. 876, 46 L.Ed. 24 108,

96 S.Ct. 1473 compare Prince V- State, 50

Ala. App. 368, 279 So. 2d 539 (1973).

However, the courts generally refuse to

hold actions by indictees which make them

difficult to locate, against the

indictees unless it can be proven that

such actions were taken to avoid arrest,

which is usually impossible to show. See

People v. “eagers 84 Ill. APP. 3rd 415,

40 Ill. Dec. 549, 406 N.E.- 24 555 (1980)

In judging the efforts of the police to

locate the indictee, some Courts, as

noted above (see pages 26-28), find

negligence in the failure of the police

l2this case was cited and relied on by

the State courts 1n the instant case.

to follow any “available avenue of

investigation" in locating the indictee.

State v. Ivory, 278 Or. 499, 564 P 2d

1039, 1041 (1977) Other courts, hold the

police only to “reasonable efforts."

State v. Holtslander, 102 Idaho 306, 629

P,. 2d 702, 707 (1981)

One of the Barker standards is the

accused person's assertion of his right.

Obviously, if an unarrested indictee

appeared and asserted his right, the

whole problem would be mooted. The

Courts generally dispense with this part

of the Barker rule, as did the Alabama

Courts in this case.

In judging prejudice, most courts

reject claims by defendants that they

cannot recall the events of the date of

the crime. People v. Yeager, above, 406

N.E. 2d 555, 559. Other Courts, like

Alabama's, hold that such claims demon-

Strate prejudice. State v. Larson,

623 P. 2d 954, 959 (S. Ct. Mont. 1981).

Many Courts presume prejudice from the

length of the delay (People v. Yeager,

above), others require only a "...reason-

able possibility of prejudice....”

(State v. Ivory, above, 565 P. 2d 1039,

1044 (1977])). Still other courts hold

that in the post-indictment, pre-arrest

Situation, the defendant must show actual

prejudice to his defense (State v.

Holtslander, above, 629 P.2d 702, 708 ££)

that was caused by the delay. (State v.

Jones, 46 Or. App. 479, 611 P. 2d 1200,

1202 [1980})

The confusion evidenced by this

brief digest of the problem arises, as

noted, from trying to apply the doctrine

of Barker v. Wingo, (407 U.S. 514, 33 L.

Ed. 2d 101, 92 S. Ct. 2182 [1972]) toa

situation not contemplated by this

Honorable Court in that case.

SPEEDY TRIAL IS BASED ON

CONCERNS AND IS JUDGED BY

STANDARDS WHICH ARE IRRELEVANT

TO POST=-INDICTMENT, PRE=-ARREST

DELAY

As pointed out above, this Honorable

Court has never addressed or even been

asked to address the issue of post-

indictment, pre-arrest delay. Lacking

guidance, the lower federal and espe-

cially the state courts have produced

the chaos of holdings noted above by

applying speedy trial standards developed

in cases where the accused was present or

at least available and ready for trial to

situations where the accused cannot he

located.

The very expression "speedy trial”

implies that a trial is possible. Before

there can be a trial the accused must

submit to the jurisdiction of the Court

or be brought into submission by arrest.

The availability of the accused for trial

was an explicit or implicit factor in

every speedy trial decision ever issued

by this Honorable Court. See, for

example, Klopfer v. North Carolina, 386

U.S. 213, 18 L. Ed. 24 1, 87 S. Ct. 988

(1967) (Defendant in Court); Smith v.

Hooey, 393 U.S. 374, 381, 21 L. Fd. 2d

607, 613, 89 S. Ct. 575 (1969) (Defend-

ant was available for trial on writ of

habeas corpus ad prosequendum); Dickey v.

Florida, 398 U.S. 30, 26 L. Ed. 2d 26,

90 S. Ct. 1564 (1970) (same as in Smith

Hooey, above); Barker v. Wingo, 407 U.S.

ann a > A

514, 33 L. Ed. 24 101, 92 S. Ct. 2182

(1972) (Accused in Court); Dillingham

v. United States, 423 U.S. 64, 46 L. Fad.

24 205, 96 S. Ct. 303 (1975) (Accused

arrestea prior to indictment). However,

until a trial becomes possible, it cannot

be speedily held. A trial is simply not

possible until the accused is located.

The rational basis for the right to

a speedy trial has been stated many times

by this Honorable Court. In Barker v.

Wingo (above) this Honorable Court

identified the interests which the right

to a speedy trial is designed to

protect:

",..-This Court has identified

three such interests: (i) to

prevent oppressive pretrial

incarceration; (ii) to minimize

anxiety and concern of the

accused; and (iii) to limit the

possibility that the defense

will be impaired...." (407

U.S. 514, 5333, 33 Le BA. 24

101, 118)

The problem of the impairment of the

defense transcends speedy trial and is,

in fact, a due process consideration.

See United States v. Marion, 494 U.S.

307, 324 £f, 30 L. Ed. 2d 468, 480 ££, 92

S. Ct. 455 (1971) and United States v.

Lavasco, 431 U. S. 783, 789, 52 L. Ed. 2d

752, 758, 97 S. Ct. 2044 (1977). The

point was put in context just six months

before Barker, above, in Marion, above,

when this court wrote:

",...Inordinate delay between

arrest, indictment, and trial

may impair a defendant's

ability to present an effective

defense. But the major evils

protected against by the speedy

trial guarantee exist guite

apart from actual or possible

prejudice to an accused's

defense. To legally arrest and

detain, the Government must

assert probable cause to

believe the arrestee has

committed a crime. Arrest is a

public act that may seriously

interfere with the defendant's

liberty, whether he is free on

bail or not, and that 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....”

(404 U.S. 307, 320, 30 L. Ed.

2d 468, 478; emphasis supplied)

Similarly, just last year this Honorable

court wrote in United States v.

MacDonald, (456 U.S. l, 71 L. Ed. 2d 696,

102 S. Ct. 1497 [1982]):

",..The Sixth Amendment right

to a speedy trial is thus not

primarily intended to prevent

prejudice to the defense caused

by passage of time; that

Interest is protected primarily

by the Due Process Tlause and

by statutes of limitations.

The speedy trial guarantee is

designed to minimize the

possibility of lengthy

incarceration prior to trial,

to reduce the lesser, but

nevertheless substantial,

impairment of liberty imposed

on an accused while released on

bail, and to shorten the

disruption of life caused by

arrest and the presence of

unresolved criminal

charges...." (456 U.S. l, 8,

71 Le. Ed. 2d 696, 704; emphasis

supplied)