STATE OF VERMONT
ESSEX COUNTY, SS.
STATE OF VERMONT
CHARLES "EDDIE" WISEMAN
DISTRICT COURT OF VERMONT
UNIT NO. 3, ESSEX CIRCUIT
DOCKET NO. 91-7-83 Ecr.
FINDINGS, CONCLUSIONS AND ORDER
On June 6, 1985, the court heard Defendant's Motion to Dismiss for Lack of Speedy Trial. Defendant was represented by himself and through co-counsel, Jean A. Swantko, Esquire. The State was represented by William Gray, Esquire, and David Suntag, Esquire.
Based on the evidence, the record, the memoranda and the arguments of counsel, the court makes the following findings:
CONCLUSION OF LAW
"That in all prosecutions for criminal offenses, a person hath a right to … a speedy public trial by an impartial jury of the country … ." VT. CONST. Ch. I, Art 10th. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial … ." U.S. CONST. Amend VI.
The right to a speedy trial is a Vermont and federal constitutional guarantee. In 1967, the U.S. Supreme Court established that the right to a speedy trial is "fundamental" and is imposed by the due Process Clause of the Fourteenth Amendment on the States. Klopper v. North Carolina, 386 U.S. 213 (1967). In 1972, the U.S. Supreme Court for the first time, set out the criteria by which the speedy trial right is to be judged. Barker v. Wingo, 407 U.S. 514 (1972). In State v. Dragon, 130 Vt. 570, 573 (1972), the Vermont Supreme Court adopted the Barker criteria:
Motions to dismiss on speedy trial grounds are addressed to the discretion of the court and involve a balancing test in which the conduct of both the prosecution and the Defendant must be weighed. State v. Dragon, 130 Vt. At 573.
Length of the Delay
It has been almost two years since the issuance of the citation to Defendant for simple assault, a misdemeanor. Defendant cites State v. Franklin, 136 Vt. 568, 570 (1978), for the proposition that passage of over eighteen months from citation to trial not brought about by the Defendant constitutes prejudice as a matter of law. That case, however, is distinguishable, for while it involved delay of over eighteen months, thirteen months of that delay represented failure of the court to issue findings and conclusions on a motion to suppress.
In a later case, the Vermont Supreme Court held that the length of the delay, rather than being dispositive of the constitutional question, operates as a "triggering device" for further inquiry. State v. Williams, 143 Vt. 396, 401 (1983).
Administrative Order number 5, promulgated by the Supreme Court provide guidelines designed to promote the prompt and efficient disposition of criminal cases. The order does not, however, confer a right on the Defendant. State v. Unwin, 139 Vt. 186 (1980). In the usual case under A.O. 5, delays accompanying pre-trial motions are excluded from the computation of time limits described in order. 12 V.S.A. App. VIII A.O. 5 4 (a).
In the instant case, the time from citation to the speedy trial hearing is twenty-three months. Defendant was cited in July 1983. All relevant pre-trial motions were filed and resolved by March 21, 1984, and the Defendant was ready to go to trial.
The remaining period, from March 21, 1984, through June 6, 1985, represents a period of approximately fifteen months. This fifteen-month delay is sufficient to trigger a consideration of all the factors in the balancing test. State v. Snide, 144 Vt. 436, 441 (1984).
Reason for Delay
In evaluating the reasons for delay, different weights are accorded different reasons. Barker v. Wingo, 407 U.S. at 531. A deliberate attempt to hamper the defense should be weighed heavily against the government. A neutral reason, such as overcrowded courts, should be weighed less heavily, yet considered since responsibility ultimately lies with the government and not the defendant. Delays caused by defendant's own trial strategy or foot-dragging will be weighed against the defendant. State v. Unwin, 139 Vt. At 195-196. State v. Dragon, 130 vt. At 375. The State must make a "diligent, good faith effort" to bring the defendant to trial. Moore v. Arizona, 414 U.S. 25, 26 (1973).
The State had difficulty, from the inception of the case, getting cooperation from the material witnesses. In June of 1984, the State claimed the absence of those witnesses would severely prejudice their case and sought a continuance in June of 1984, in order to procure the witnesses' attendance at trial in August. When the court granted that continuance, it was accompanied by a warning to the State: try the case in August, or it will be dismissed.
By its own admission, the State made the tactical decision not to detain the witnesses in August 1984, in order to assure their presence at trial. See 13 V.S.A. §6646 and Findings of Fact at No. 27. Instead the State decided to try the case on the depositions of the material witnesses. When the court prohibited the depositions from being used as substantive evidence, the State chose not to go ahead with the trial but to take an interlocutory appeal.
Within days of their filing that appeal, the State knew the witnesses had returned to Vermont, but the State chose to disregard the Ethical Considerations for public prosecutors embodied in EC. 7-13.
With respect to evidence and witnesses, … a prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecutor's case or aid the accused.
The witnesses were possibly "available" in Vermont as early as August of 1984. But the State chose to pursue their appeal rather than bring the Defendant to trial, despite the State's claims at the hearing for the interlocutory appeal that they were "trying to get the witnesses back," to use them.
The almost fifteen month delay in this case, following the disposal of all relevant pre-trial motions, was not brought about by the Defendant. The delays are due soley to the tactical decisions of the State and must be weighted against the government in the balancing process.
Assertion of the Right
As early as January 25, 1984, the Defendant asserted his right to a speedy trial. On March 21, 1984, Defendant demanded that this matter be tried immediately. On four other occasions, including Defendant's Motion to Dismiss the Appeal and Motion for Remand directed to the Vermont Supreme Court, the Defendant asserted his right.
Defendant had made timely and aggressive assertions of his right to a speedy trial.
Prejudice to Defendant
The question of prejudice to the Defendant is the most important factor to consider in analyzing speedy trial issues. State v. Williams, 143 Vt. 396, 406 (1983), citing State v. Bristol, 143 Vt. 245, 249 (1983); State v. Unwin, 139 Vt. At 197.
The U.S. Supreme Court in Barker v. Wingo identified three interests which the speedy trial right was designed to protect from prejudice:
In a pre-Barker case, the Vermont Supreme Court stated essentially these same three interests. See State v. Mahoney, 124 Vt. 488, 490 (1965). The protection may be invoked even though a person is not imprisoned. Id.
In Moore v. Arizona, 414 U.S. 25, 26, the Court observed that in Barker v. Wingo, it had "expressly rejected the motion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial … ."
We regard none of the four factors identified above [length of delay, reason for delay, defendant's assertion of his right, and prejudice to the defendant] as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution.
Moore v. Arizona, 414 U.S. at 26, quoting Barker v. Wingo, 407 U.S. at 533.
Prejudice to the Defendant caused by delay in bringing him to trial is not confined to the possible prejudice to his defense in those proceedings. Id. at 26-27.
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 quite apart from actual or possible prejudice to an accused's defense. … 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.
United States v. Marion, 404 U.S. 307, 320 (1971).
Indeed, the Defendant has made ample showing of personal prejudice, as outlined in U.S. v. Marion, and this fourth factor is satisfied.
Having considered each of the relevant factors, and applying the balancing test to the unique facts of this particular case, the court concludes that Defendant has been denied the right to a speedy trial. The "only possible remedy" for denial of the right to speedy trial is dismissal of the charges with prejudice. Strunk v. United States, 412 U.S. 434 (1973).
Inasmuch as the court concludes that Defendant has been denied the right to a speedy trial, it is unnecessary for the court to reach the Defendant's other motions.
Accordingly, Defendant's Motion to Dismiss for Lack of a Speedy Trial is hereby GRANTED.
Dated at ________________ this _______ day of June, 1985.
[Signed] F. Ray Keyser, Ret. Justice