Kraushaar, Richard H.

English

bepress Legal Repository

Constitutional Law--Right to a Speedy Trial

Case Western Reserve University School of Law

Case Western Reserve Law ReviewVolume 12 | Issue 21961Constitutional Law--Right to a Speedy TrialRichard H. KraushaarFollow this and additional works at: https://scholarlycommons.law.case.edu/caselrevPart of the Law CommonsThis Recent Decisions is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve UniversitySchool of Law Scholarly Commons.Recommended CitationRichard H. Kraushaar, Constitutional Law--Right to a Speedy Trial, 12 W. Res. L. Rev. 430 (1961)Available at: https://scholarlycommons.law.case.edu/caselrev/vol12/iss2/37WESTERN RESERVE LAW REVIEWand clarify the Ohio statutes and save them from a charge of obscurity.Besides making the Roth test mandatory by statute, the holding inBlumenstein will undoubtedly accelerate its evaluation in the courts sothat if this standard is to be found wanting, as all such standards havebeen so found since ancient times, it may be brought sooner to the at-tention of the Supreme Court of the United States.FRANK BERNDTCONSTITUTIONAL LAW - RIGHT TO A SPEEDY TRIALPorter v. United States, 270 F.2d 453 (D.C. Cir. 1959)In Porter v. United States,' the defendant was arrested, indicted forrape, arraigned upon a plea of not guilty, and imprisoned when he foundit impossible to raise the cost of a bail bond. Failing to get what heconsidered an adequate defense from a court-appointed lawyer, he wrotea letter from prison to the Chief Justice of the District Court for the Dis-trict of Columbia, in which he daimed his right to "due process of law"had been denied. His claim was based on the fact that his trial in theDistrict Court had been postponed five times resulting in a delay of onehundred and fifty days.? In his letter to the judge, Porter asked for amotion for a direct acquittal or a motion for a speedy trial, whichever wasproper in his situation. The District Court refused these motions.Although the court's opinion in this case recognized the presence ofthree important issues, the decision was based on one - whether therewas infringement of Porter's constitutional right to a speedy trial.' Thisright is reserved in the Sixth Amendment of the Bill of Rights:In all criminal prosecutions, the accused shall enjoy the right to aspeedy and public trial, by an impartial jury of the State and districtwherein the crime shall have been committed.. .4and is reiterated in the Federal Rules of Criminal Procedure:1. 270 F.2d 453 (D.C. Cir. 1959), cert. denied, 363 U.S. 805 (1960).2. According to the record of the District Court, the dates and reasons for the postponementswere as follows:2-18-58 defense counsel was snowbound;3-11-58 at government request because complaining witness was ill;3-31-58 the length of the preceding cases prevented its being heard;4-24-58 prosecutor was engaged in trial;5-1-58 at government request because witness was on leave;5-20-58 trial was held.3. The two issues of this case raised by the court but considered insignificant to its conclu-sion were: (1) whether the constitutional guaranty to a speedy trial is a personal right whichis waived by the failure of the accused to demand trial; and (2) whether there is a responsibilityon the court to appoint a new attorney in the situation where the accused and the court-ap-pointed attorney differ as to the method of defense and where it appears the defense is notbeing presented in a manner most favorable to the accused.4. U.S. CONST. amend. VI.[MarchRECENT DECISIONSIf there is unnecessary delay in presenting the charge to a grand juryor in filing an information against a defendant who has been held toanswer to the district court, or if there is unnecessary delay in bringinga defendant to trial, the court may dismiss the indictment, informationor complaint.5The Court of Appeals, by a 2-1 majority, affirmed the District Court'sdecision, holding that Porter's right to a speedy trial had not been denied.In a one paragraph opinion, the majority based its decision on the findingin King v. United States.sThe fact situation in the King case was similar to that in the Portercase. In reaching the decision that King had not been denied his rightto a speedy trial, the majority of the court emphasized two factors:(1) that sixty days of the one hundred and forty-day delay were at therequest of the accused and not the prosecutor; and (2) after postpone-ment as requested by the defendant, the court's calendar system necessi-tated continued delay.7 Recognizing that the constitutional right to aspeedy trial is relative and must be determined in light of all the factorsin each case, the majority refused to void the calendar system so long asa better method was unknown and further refused to bring the King casewithin the limits of the constitutional guaranty.'A close analysis of the reasoning of the court in the King case andthat of the dissenting judge in the Porter case is necessary to accentuatethe problems presented in these cases.The court in the King case emphasized the fact that the defendanthad requested the delays. Repeatedly this has been held to estop theaccused from asserting a denial of his right to a speedy trial.9 In More-land v. United States'" the court said, "A defendant cannot complain thathe has been denied a speedy trial by reason of delay which he himselfcaused."" Similarly in United States v. Lustman,' it was said, "TheSixth Amendment prohibits only an unreasonable delay and a defendant5. FEDR. CR&. P. 48 (b).6. 265 F.2d 567 (D.C. Cir. 1959), cert. denied, 359 U.S. 998 (1959).7. When a case was set for trial in a district court, there was no way of knowing if courtrooms would be vacant, if judges would be available, or if the case would be ready on thatdate. If the trial date was reached and a postponement required or requested, the case wasnot moved to the succeeding day, but to the first available date following the cases on the cal-endar, usually resulting in a delay of thirty days with each postponement. This procedurewas followed disregarding the fact that the accused was imprisoned during this period.8. King v. United States, 265 F.2d 567, 570 (D.C. Cir.), cert. denied, 359 U.S. 998(1959). See Beavers v. Haubert, 198 U.S. 77 (1905); Day v. Davis, 235 F.2d 379 (10thCir.), cert. denied, 352 U.S. 881 (1956).9. United States ex rel. Hanson v. Ragen, 166 F.2d. 608 (7th Cir.), cert. denied, 334U.S. 849 (1948); Shepard v. United States, 163 F2d 974 (8th Cir. 1947); United States v.Stracuzza, 158 F. Supp. 522 (S.D.N.Y. 1958), affd, 362 U.S. 511 (1960).10. 193 F.2d 297 (10th Cir. 1951).11. Id. at 298.12. 258 F.2d 475 (2d Cir.), cert. denied, 358 U.S. 880 (1958).1961]WESTERN RESERVE LAW REVIEWcannot exploit a delay which is attributable primarily to his own acts orto which he has consented."' It appeared that the court in the Kingcase recognized the duty of the prosecutor to protect the constitutionalrights of the accused, and the court would have protected them if thedelays had been at the prosecutor's request. It seemed so until the Portercase, where the same court ignored the factor it had considered significantin the previous case. There was no mention of the delays caused by theprosecutor, in fact there was no majority opinion on this subject.Judge Bazelon, dissenting in the Porter case, did not ignore this fac-tor. He pointed out that three of the five delays were at the request ofthe prosecutor while the accused requested none. This, he said, violatedthe prosecutor's duty to protect the constitutional rights of the accused, 4a duty which increased with each delay of the trial. As stated in UnitedStates v. Dillon,5 "It is the duty of the public prosecutor, not only toprosecute those charged with crimes, but also to observe the constitutionalmandate guaranteeing a speedy trial."' 6 Based on the fact that the delayswere caused by the accused in the King case and by the prosecutor in thePorter case, Judge Bazelon differentiated the latter case and supportedthe opposite result.The second factor emphasized by the majority in the King case wasthe problem that resulted from the procedure used by the district courtsin placing cases on their calendars. The court recognized the imperfec-tions but dismissed them as "necessary evils" to the administration of jus-tice. The dissenting opinion considered these imperfections in a differ-ent manner:The majority appears to conclude that the 6th amendment does notrequire a calendar system which is idealistically perfect, but only onewhich is reasonable in view of the hard facts. While I agree that theconstitutional right to a speedy trial is consistent with necessary delaysinherent in the processes of justice, I cannot agree that it permits proc-esses that make for unnecessary or avoidable delay.17Here is the question that the court was forced to answer - To whatextent would it permit administrative inadequacies to infringe upon con-stitutional rights? Judge Bazelon, basing his dissent on the supremacy ofconstitutional rights, declined to give these inadequacies any weight.13. Id. at 477.14. Porter v. United States, 270 F.2d 453, 454 (D.C. Cir. 1959) (dissent), cert. denied,363 U.S. 805 (1960). See State v. Crosby, 217 Ore. 393, 342 P.2d 831, (1959); State v.Chadwick, 150 Ore. 645, 47 P.2d 232 (1935).15. 183 F. Supp. 541 (S.D.N.Y. 1960).16. Id. at 543.17. King v. United States, 265 F.2d 567, 572 (D.C. Cir.) (dissent), cert. denied, 359U.S. 998 (1959).[MlarchRECENT DECISIONSCONCLUSIONIt is appropriate at a time when the rights of men are being testedin courts throughout the country that the rights of a person, imprisonedwithout a trial for one hundred and fifty days because he was without thecost of a bail bond, be carefully examined. Although the dilemma thecourt faced in both the King case and the Porter case was relativelysimple in fact, it has widespread ramifications; for example, what is theprosecutor's duty to see that the accused is not denied his constitutionalrights; and, when does the inherent power of a court to control its calen-dar violate the constitutional right to a speedy trial? Rather than meetthese questions on the constitutional issue, the majority of the court inthe Porter case deemed the causes of the delays insignificant and calledthe court procedure a weakness in the administration of justice.The questions left unanswered by these cases demonstrate the inde-cision that hovers over this area. It appears reasonable that the dissent-ing opinion in the Porter case should establish the guideposts for a re-evaluation of the rights belonging to a person finding himself imprisonedfor a long period without a trial. From that opinion it is justifiable toconclude: first, that the prosecutor has an intense duty to preserve theconstitutional guarantees of a person in this situation; and second, thatthe federal district courts should adopt a calendar procedure that meetsthe problem."8 The mere recognition of these principles will not suffice.The courts must depend on the foresight of men to develop systematicand efficient administration of justice in a manner that protects the liber-ties of human beings.RiCHARD H. KRAUSHAAR18. Since the Porter case the District Court for the District of Columbia has changed itscalendar rule by placing the continued case on the docket for the next available date, but byplacing it near the top of that day's list rather than at the bottom. This assures its hearingon that date and results in a maximum delay of three weeks. 108 U. PA. L. REv. 414 (1960).This article states that the problem still remains in most federal courts and suggests as a solu-tion a uniform and definitive provision similar to that adopted in the District of Columbia.19611WESTERN RESERVE LAW REVIEWVolume 12, Pages 435 to 639WESTERN RESERVE LAW REVIEWMember, National Conference of Law ReviewsEDITORIAL STAFFHARVEY M. ADELSTEIN, Editor-in-ChiefGERALD A. MESSERMAN, Managing EditorAssociate EditorsCHARLES J. CONSIGLIOGEORGE DOWNINGALAN I. ARNOLDDON P. BROWNMARVIN DRONZEKMYRON L. JOSEPHBRUCE L. NEWMANPHILLIP A. RANNEYBOARD MEMBERSFRED L. KuRLANDERJOHN 0. MARTnLAWRENCE R. SCHNEIDERREESE TAYLORJOHN R. WEREENAPPRENTICESFrank A. BerndtEdward K. BrownDavid G. ClarkDaniel B. DavisJonathan S. DworkinSheldon M. EisnerVictor M. JavitchByron S. KrantzRichard H. KraushaarLeRoy L. LambornFrederick M. LombardiRichard B. MoritzIvan L. OttoRobert J. RotatoriRichard W. SchwartzAlan J. ShapiroAlan B. SoclofPeter F. YoungLAWRENCE HERMAN, Faculty AdviserSEYMOUR J. SCHAFER, Associate Faculty AdviserPublished quarterly by students of THE SCHOOL OF LAW OF WESTERN RESERVE UNiVER-SITY, Cleveland 6, Ohio. Copyright 1961 by Western Reserve University. Subscription: $5.00per annum payable in advance; $2.00 for single issues; $3.00 for Volume 12, Number 2. Ifsubscription is to be discontinued at expiration, notice to that effect should be sent to theManaging Editor; otherwise it will be renewed as usual.

https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=3972&amp;context=caselrev

Constitutional Law--Right to a Speedy Trial

Abstract

Similar works

Full text

Available Versions

bepress Legal Repository

Case Western Reserve University School of Law