# Petition — Alabama v. Taylor

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 950

## Text

——

LED

82-2107 JUN 25 1983

NO.

CLER Pree anata aa et ae ye a ee a

18,

45

23

23

24

36

20

36

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

23

39

45

32

32

36

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

vi

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,
46

United States v. Marion,
404 U.S. 307, 30 L.
Ed. 2d 468, 92S.
CO. Bee CATE? Ss ccetesssvceee Basan
21,38,
43,45,
47

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)

10

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")

ll

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.

12

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

13

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)

14

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

15

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.

16

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.

I.

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:

17

(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."

18

(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

19

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)

20

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.

21

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.

A.

PRACTICAL CONSIDERATIONS

The common situation of the

unlocatable indictee presents unique

22

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

23

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)

24

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

25

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

26

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

28

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.

B.

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

29

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.

30

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

31

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

EE

l2this case was cited and relied on by

the State courts 1n the instant case.

32

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

33

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

34

situation not contemplated by this

Honorable Court in that case.

Cw

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.

35

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

36

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,

37

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,

38

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)

See also Moore v. Arizona, 414 U.S. 25,

27, 38 L. Ed. 2d 183, 186, 94 S. Ct. 188

(1973).

39

Thus, speedy trial concerns primarily the
direct necessary effects of a pending
criminal charge which the accused is
being held to answer - pre-trial loss of
freedom, the disruptive effect on the
accused person's life and anxiety over
the charge. This is the rational hasis
of the rule which presumes prejudice from
a prolonged pre-trial delay after the
right to a speedy trial has attached:

The accused person's defense may not have
been damaged, indeed he may never have
had a defense, but he has been incarce-
rated or at least restrained in his move-
ments, his life has been disrupted and he
has suffered anxiety. However, none of
this applies to post-indictment, pre-
arrest delay. An indictee who cannot be
located is not restrained in any way; he
is exercising his freedom to the fullest.

His life is unaffected by the unserved

4n

warrant. If the indictee knows nothing
about the indictment, he cannot he
anxious about it; if he knows about it
and doesn't surrender to answer it, his
anxiety is self-imposed. Thus, the
primary purposes of the right to a speedy
trial are simply irrelevant to the post-
indictment, pre-arrest situation.

The leading case on speedy trial is,

of course, Barker v. Wingo (497 U.S. 514,

33 L. Ed. 24 101, 92 S. Ct. 2182 [1972)),
in which this Honorable Court created the
four part balancing test. The delay in
Barker was well over five years,

Barker was in court throughout this
period, and the rule announced in Barker
was based on that fact. The four factors
are firmly grounded on the availability
of the accused for trial. Barker calls
on the courts to balance the length of

the delay, against the reasons for the

41

delay, against the accused person's
assertion of his right, against pre-
judice. Now in the case of post-indict-
ment, pre-arrest delay, the reason is
always the same and is always insurmount-
able - the lack of personal jurisdiction
over the accused. The accused can hardly
be expected to assert his right if he
either knows nothing of the charge or
does and is avoiding arrest. The pre-
judice factors which relate to speedy
trial are, as discussed in the previous
paragraph, irrelevant to delay during
which the accused was unaffected by the
indictment. Thus, the Barker balancing
test, excellent as it is in cases where
the accused is available for trial, is
irrelevant to the situation where the
accused can not be located.

To say that speedy trial consider-

ations do not apply to post-indictment,

A?

pre-arrest delay is not to say that an
accused who suffers actual prejudice is
without a remedy. This Honorable Court
has often recognized that due process
rules protect against actual prejudicial
effects of delays other than denial of

speedy trial. United States v. Marion,

404 U.S. 307, 324 ££, 30 L. Fd. 2d 468,
480 f£, 92 S. Ct. 455 (1971); United

L. Ed. 24 752, 758, 97 S. Ct. 2044
(1977)

The situation of an accused who has
heen indicted but not located and
arrested is radically different from that
of a party who has been arrested, whether
before or after indictment, and is
awaiting trial. However, the unarrested
indictee's situation is nearly identical

to that of the person who has been

43

neither arrested nor charged. At most
the unarrested indictee's situation is
like that of the party whose charges have
been dropped. This Court addressed that

situation in United States v. MacDonald,

456 U.S. l, 8-9, 71 L. Ed. 24 696, 704,
102 S. Ct. 1497 (1982).

For these reasons, post-indictment,
pre-arrest delay occasioned by the
inability to locate the indictee ought
to be judged by due process standards or,
if judged by speedy trial standards,
there ought to be formulated standards

appropriate to this situation.

III.
FORM OVER SUBSTANCE; THE
DISCOURAGEMENT OF ORDERLY
EXPEDITION,
In the final analysis, what is at

issue here is a question of form over

substance.

44

If the indictment in this case had
not been returned until after Respondent
Taylor's arrest, he would have had no

speedy trial claim at all. United States

v. Marion, 404 U.S. 307, 30 L. Ed. 24

468, 92 S. Ct. 455 (1971); United States

v. Lavasco, 431 U.S. 783, 52 L. Ed. 2a

752, 97 S. Ct. 2044 (1977); State v.
Lockman, 169 Con. 116, 362 A. 2d 920
(1975); cert. den. 423 U.S. 991, 46 L.

Ed. 24 309, 96 S. Ct. 403; Preston v.

State, 338 A. 2d 562 (S. Ct. Del., 1975)
Respondent Taylor would have had no
complaint that his arrest was delayed.

Hoffa v. United States, 385 U.S. 293, 17

L. Ed. 24 374, 87 S. Ct. 408 (1966)
Certainly no one would have have presumed
prejudice from a five month delay from
arrest to trial. If during the period of

this delay the officers had been seeking

45

the Respondent on a simple warrant hased
on an affidavit rather than a capias
(warrant) based on an indictment, the
Alabama Courts would have applied due
process standards rather than speedy
trial standards to this case. Under the
due process standards Respondent Taylor
would have had to show at a minimum that
his defense was actually prejudiced by
the delay - something he cannot do. The
results would have been the same if, on
realizing that Taylor could not he
quickly located in September of 1976, the
State had dismissed the indictment and

then obtained a warrant. United States

v. MacDonald, 456 U.S. l, 71 L. Ed. 24

696, 102 S. Ct. 1497 (1982) The nature
of the legal paper which the officers
sought to serve on Respondent Taylor was
of controlling importance in this case,

but why? What conceivable difference

46

could it make to Respondent Taylor,
hefore, during or after his arrest that
he was being sought on a capias rather
than a simple warrant? Warrants and
indictments are equally effective in
commencing prosecutions for the purposes
of the statute of limitations. See Title
15, Section 15-3-7, Code of Alabama,
1975; Appendix "C". Yet, because the
officers were unable to serve a capias
rather than a simple warrant, Mr. Taylor
is automatically acquitted. This
aggrandizement of form over substance is
unreasonable and, as will he discussed
below, defeats the policy of orderly

expedition}3 of cases in general and

13", .,[T]he essential ingredient is
orderly expedition and not mere
speed...." Smith v. United States, 360
U.S. l, 10, 3 Le Bd. 2d L041, 1048, 79 S.
Ct. 991 (1959) Quoted with approval in
United States v. Marion, 404 U.S. 307,
313, 30 L. bd. 2d 468, 474, 92 S. Ct. 455
(i972)

47

criminal cases in particular of which
speedy trial is an intregal part.

Given that a simple warrant will not
trigger the right to a speedy trial until
it is executed and assuming, as most of
the lower courts do, that an indictment
does trigger speedy trial immediately,
then the simple solution to the problem
of the unlocatable indictee would be to
dismiss the indictment and obtain a
Simple warrant. An even better policy
would be to take no case hefore a grand
jury unless the accused is in custody or
under bail bond. A warrant would have,
from the government's point of view, all
of the advantages of an indictment with-
out setting the running of the “speedy
trial clock." A simple warrant would
toll the Statute of Limitations and

authorize the arrest and custody of the

48

accused, it would invoke the extrater-
ritorial cooperation of other jurisdic-
tions, it would be a suitable basis for a
federal fugitive warrant and extradition.
Once the accused was arrested on the
Simple warrant, the case could he
presented to a grand jury. There are no
disadvantages to the prosecution in this
policy, but there are disadvantages to
the judicial system and the accused.
Presenting a case to a grand jury
takes time, often considerable time. If
cases are presented to the grand jury
only after accused persons are arrested,
then trials must be delayed by as much
time as it takes the grand jury to act.
If there is a prolonged delay in locating
the accused, then the accused person's
trial would be further delayed by the

grand jury proceedings. The government

49

does not need custody of an accused to
indict him. The policy of “orderly
expedition" would seem to encourage the
prosecution to do what it can, when it
can toward bringing cases to trial.
Indictment is necessary for trial, and
the prosecution ought to he encouraged to
go to the grand jury as expiditiously as
possible. Yet, the Alabama courts, like
most of the lower courts, have adopted a
policy which harshly taxes expeditious
grand jury proceedings and thereby
encourages delay.

It cannot, of course, be assumed
that every case presented to a grand
jury produces an indictment. This
Honorable court has recognized that the
grand jury proceeding provides valuable

protection to innocent people. For

50

example, in Smith v. United States, (360

U.s. 1, 3 L.Ed. 24 1041, 79 S.Ct. 991
[1959]), this Honorable Court wrote:

",..The Fifth Amendment made

the rule mandatory in federal

prosecutions in recognition of

the fact that the intervention

of a grand jury was a substan-

tial safeguard against oppres-

sive and arbitrary proceed-

ingBe.ee* (360 U.S. 1, 96 3 be

Ed. 2d 1041, 1048)
Perhaps of more practical significance is
the fact that grand jury proceedings,
being more solemn and formal than the
procedures which attend the issuance of
simple warrants, are less prone to cler-
ical and similar errors than warrant
procedures. The first time Respondent
Taylor's case was presented to the
Jefferson County Grand Jury the case was
"no billed" because of clerical errors

and the charges were dropped. By dis-

couraging the expeditious presentation

51

of cases involving unlocatable accused
persons to grand juries, the policy now
followed in Alabama and most states and
federal circuits deprives these accused
persons of valuable protection. This is
the direct result of applying speedy
trial standards to post-indictment,
pre-arrest delay. The Petitioner
respectfully submits that the better
policy would be to encourage the early
presentation of these cases to grand
juries. Under such a policy, many of
these accused persons would never become

indictees and would cease heing accused.

52

CONCLUSION

In conclusion, the Petitioner, the
State of Alabama, respectfully submits
that the decisions, opinions and orders
of the Honorable Court of Criminal
Appeals and Supreme Court of Alabama in
this case erroneously resolved an
important question of U.S. Constitutional
Law which this Honorable Court has not
heretofore had the opportunity to
address. For this reason the Petitioner
Prays that this Honorable Court will
issue the writ of certiorari and review
the decisions and Opinion of the
Honorable Courts of Alabama and on such
review will reverse the decisions of said
Courts holding that Respondent Taylor was

deprived of his right to a speedy trial

53

by reason of the delay in locating him
after indictment.

Respectfully submitted,

CHARLES A. GRADDICK
ATTORNEY GENERAL

JOSEPH G. L. MARSTON, I1iI
ASSISTANT ATTORNEY GENERAL

OF COUNSEL:

VALERIF LOFTIN
LEGAL RESEARCH AIDE

54

CERTIFICATE OF SERVICE

I, Joseph G. L. Marston, III, an
Assistant Attorney General of Alabama, a
member of the Bar of the Supreme Court of
the United States and one of the
Attorneys for the State of Alabama,
Petitioner, do hereby certify that on
this day of June, 1983, I did
serve the requisite number of copies of
the foregoing on the Attorney for Henry
Taylor, Respondent, by mailing same to
him, first class postage prepaid and
addressed as follows:

Hon. G. Thomas Sullivan
Attorney at Law

2014 Sixth Avenue, North
Birmingham, Alabama 35203

ASSISTANT ATTORNEY GENERAL

ADDRESS OF COUNSEL:

Office of the Attorney General
250 Administrative Building

64 North Union Street
Montgomery, Alabama 36130

55

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1202%3A1. Public record. Not legal advice.