CELEBREZZE, Circuit Judge.
This is an appeal from the District Court's denial of a writ of habeas corpus. On appeal Appellant's sole argument is that the District Court erred in ruling that he was not denied a speedy trial by the Tennessee courts. An evaluation of this claim requires a rather extended exposition of the facts surrounding Appellant's 1969 robbery conviction.
Late in March, 1960, Appellant was charged with the March 14, 1960 robbery of a liquor store employee in Shelby County, Tenn. A warrant was issued for his arrest, but was not executed because by the time Appellant was located he was in the custody of Illinois authorities, having been arrested on an Illinois robbery charge on March 20, 1960.
Once informed of the Illinois arrest two Memphis detectives journeyed to the Illinois jail where Appellant was held and informed him that he was wanted for the liquor store robbery. The record does not indicate that they (or any other Tennessee authorities) took any steps to secure Appellant's return for trial other than to cause a detainer to be lodged against him on March 23d.
Appellant was convicted on the Illinois charge later in 1960 and sentenced to twenty years imprisonment. On June 3, 1968 he was paroled and returned to Memphis. There, on June 11, 1968, some eight years and three months after charges were first filed against him. Appellant was indicted for the liquor store robbery. Counsel was then, for the first time, appointed to assist Appellant. Some six months later, on January 13, 1969, Appellant was tried and convicted and sentenced to a 5-10 year term in the Tennessee State Penitentiary, where he is presently incarcerated.
Before trial, Appellant moved to quash the indictment on the grounds that his right to a speedy trial had been violated; the motion was denied. Appellant pressed his speedy trial claim on appeal, but it was rejected by the Tennessee Court of Criminal Appeals. Edmaiston v. State, 452 S.W.2d 677 (1970). He then petitioned for a writ of habeas corpus in the United States District Court. The District Court granted Appellant an evidentiary hearing on his petition, but found that Appellant had waived his rights by failing to demand a speedy trial; it also found that Appellant had failed to establish that he was prejudiced by the delay. Basing its ruling on these findings the District Court refused to issue the writ.
Appellant urges that the failure to bring him to trial at an early date denied him the testimony of two alibi witnesses, a Mr. and Mrs. John Albright, who died in a 1965 auto accident. He contends that in 1961 and 1962, prior to the deaths of the Albrights, he demanded a speedy trial by letter addressed to the Circuit Court of Shelby County and to the State Attorney General. He also alleges that a more formal request was made by petition in 1966—after the deaths of the witnesses.
While the Tennessee trial court found that Appellant had made several requests for a speedy trial and the Court of Criminal Appeals agreed, the District Court was not persuaded. This apparent reversal of the State court on a finding which was favorable to Appellant raises interesting questions under 28 U.S.C. § 2254. Our treatment of the demand issue makes it unnecessary to reach that question, however.
We first consider the threshold problem posed by the fact that the bulk of the delay complained of occurred after arrest, but before indictment. At least one Circuit has held that the speedy trial protection does not apply at all in such circumstances. Reece v. United States, 337 F.2d 852, 853 (5th Cir. 1964); United States v. Williams, 416 F.2d 4, 9 (5th Cir. 1969), cert. denied 397 U.S. 968, 90 S.Ct. 1008, 25 L.Ed.2d 262 (1970). We do not agree with that conclusion.
The great weight of authority supports the view that in the present situation "the right (to speedy trial protection) attaches upon arrest." Dickey v. Florida, 398 U.S. 30, 43, 90 S.Ct. 1564, 1572, 26 L.Ed.2d 26 (1970) Brennan, J. concurring;
These decisions, holding that speedy trial protection applies whenever an individual is charged with a crime, whether at the time of arrest or indictment, would seem to be consistent with the purposes which the Supreme Court has said underlie the Sixth Amendment. In United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), the Speedy Trial Clause was held to serve three major purposes. It prevents "undue and oppressive incarceration prior to trial," limits so far as possible the "anxiety and concern accompanying public accusation," and prevents the "impair(ment)" of the accused's "ability to defend himself" which would flow from a "long delay." 383 U.S. at 120, 86 S.Ct. at 776. The loss of concurrent sentencing possibilities or the limitations on parole terms which may flow from the filing of a detainer even in the absence of an indictment can certainly be included within the types of "oppressive incarceration" the Supreme Court alluded to in Ewell. See Smith v. Hooey, 393 U.S. 374, 378, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Similarly it is evident that "anxiety and concern" accompany any formal accusation—whether made through indictment or merely by arrest. Perhaps most importantly "long delay will impair the ability of an accused to defend himself" whether that delay occurs between arrest and indictment or after indictment.
While recognizing the applicability of some of these concerns even in the absence of both indictment and arrest this Circuit nevertheless has felt that the need for confidential pre-accusation investigation usually requires that speedy trial rights not attach until indictment.
For these reasons we believe that allowing the speedy trial protection to attach upon arrest when arrest occurs before indictment is consistent with the purposes supporting the Sixth Amendment and places no undue burden upon prosecuting or law enforcement authorities.
Having determined that the speedy trial protection is available against post-arrest, pre-indictment delay we now turn to consideration of whether Appellant's rights were violated under the circumstances of this case.
In a series of rulings between 1967 and 1970 the Supreme Court greatly expanded the law applicable to persons in Appellant's situation. First the Court made speedy trial protection directly applicable in state proceedings. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); then, in 1969, it required states to use "due diligence" in securing the speedy return for trial of prisoners held in other states. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Finally, in Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), it held that the failure to use such diligence, at least when coupled with some evidence of prejudice, justified the voiding of a conviction obtained after the delay.
Appellant's conviction was entered on January 13, 1969; the Smith v. Hooey decision was not announced until January 20, 1969 and the Dickey v. Florida decision, May 25, 1970. The Tennessee Court of Criminal Appeals, reviewing Appellant's conviction after Smith, but before Dickey had been announced, held that under these circumstances Smith did not control its decision. Edmaiston v. State, Tenn., 452 S.W.2d 677, 680 (1970). It held that it was free to follow pre-existing Tennessee law which placed no responsibility on the State to secure the return of out of state prisoners for trial. See Burton v. State, 214 Tenn. 9, 377 S.W.2d 900 (1964). It was the State Court's conclusion that Appellant's rights to a speedy trial had not been violated because no rights accrued until he was released from the Illinois prison.
We believe that Smith v. Hooey (and Dickey v. Florida) should be applied retroactively and therefore that Tennessee's failure to use due diligence in attempting to bring Appellant to trial promptly could constitute a deprivation of his speedy trial rights despite his Illinois incarceration.
Since Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), was announced only three factors have been held to be at all relevant in determining whether or not a new constitutional rule should be given retrospective application. Of these, only one, the purpose to be served by the new standard, has been of primary significance.
There can be no doubt that the primary purpose of the rule in Smith v. Hooey and in Dickey v. Florida (supra) was to protect "the ability of an accused to defend himself." (Smith, 393 U.S. at 379, 89 S.Ct. at 578). In explaining its decision in Smith the Supreme Court noted: "Evidence and witnesses disappear, memories fade and events lose their perspective" and "a man isolated in prison is powerless to exert his own investigative efforts to mitigate these erosive effects of the passage of time." Id. at 380, 89 S.Ct. at 578. The Court's language indicated a fear that the reliability of the guilt determining process was being adversely affected by the delays present in Smith, Dickey and evident here as well. Under the circumstances, retroactivity for the Smith and Dickey decisions would seem appropriate.
This conclusion destroys any basis for the State's claim that the reason for its delay in bringing Appellant to trial was a permissible one.
While no explicit statement of all the factors relevant to the consideration of a speedy trial claim has appeared in this Circuit it is evident that in establishing the lack of justification for his tardy trial and the extreme length of the delay—eight and one-half years— Appellant has offered substantial evidence that his speedy trial rights were violated. It is generally accepted in this Circuit, however, that to justify the voiding of a conviction on speedy trial grounds actual prejudice to the Appellant must also be shown. Barker v. Wingo, 442 F.2d 1141, 1143-1144 (6th Cir. 1971); Fouts v. United States, 253 F.2d 215 (6th Cir. 1958), cert. denied, 358 U.S. 884, 79 S.Ct. 118, 3 L.Ed.2d 113 (1958).
Appellant has fulfilled that obligation. He asserts that he was prejudiced by the death of two potential alibi witnesses in 1965—some five years after he was first charged with the crime in question. He claims also that he lost the possibility for concurrent sentencing which might have been available to him had his Tennessee trial been held soon after the Illinois one.
The Supreme Court has specifically declared that a desire to "limit the possibilities that long delay will impair the ability of an accused to defend himself" is one of the principal rationales for the Sixth Amendment's speedy trial provision. United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). In explaining the types of
The Supreme Court has also considered the loss of concurrent sentencing possibilities to be a significant incident of prejudice resulting from delay. See Smith v. Hooey, supra, 393 U.S. at 378, 89 S.Ct. 575. The possibility of such sentencing would have been open to Appellant had his Tennessee trial followed the Illinois proceeding with reasonable promptness.
We believe that Appellant has demonstrated that he was prejudiced by the delay in question.
The District Court found that the speedy trial protection could not be invoked by Appellant because he had failed to "press for an early confrontation with his accusors and with the State." Dickey v. Florida, 398 U.S. 30, 38, 90 S.Ct. 1564, 1569, 26 L.Ed.2d 26 (1970). In so doing the District Court held Appellant had "waived" his right to assert his speedy trial claim. Assuming for purposes of this opinion the correctness of the District Court's determination that no demand was in fact made
It is the general rule in this Circuit that demand for a speedy trial must be made at the time of or soon after any delay or else the right to object to that delay will be waived. Short v. Cardwell, 444 F.2d 1368 (6th Cir. 1971); Barker v. Wingo, 442 F.2d 1141 (6th Cir. 1971); Fouts v. United States, 253 F.2d 215 (6th Cir. 1958), cert. denied 358 U.S. 884, 79 S.Ct. 118, 3 L.Ed.2d 113 (1958); Carter v. State of Tennessee, 18 F.2d 850 (6th Cir. 1927).
This case differs significantly from Short, however. Short failed to make a demand even though an indictment had been filed against him soon after the commission of the crime. Here no indictment was filed against Edmaiston until after his release from the Illinois penitentiary—some eight years after the Tennessee liquor store robbery took place.
We believe that the absence of an indictment sufficiently distinguishes this case from Short v. Cardwell, supra, so as to make the demand rule inapplicable here.
Even in applying the strictest demand rule the federal courts have recognized situations where waiver should not properly be inferred from failure to demand
Each of these cases turned on the fact that under all the circumstances the defendant could not have been expected to know that demand was appropriate. In addition to the lack of knowledge of any indictment there was other evidence suggesting that the defendant knew little if anything of the nature of the charges being brought against him. In Fouts for example there is no indication that the defendant had any idea that any charges were pending against him; in Pitts it appears that the only positive knowledge of pending charges was obtained through an informal conference with prison officials on another matter. Implicitly or explicitly the courts were basing their decisions in these cases on the oft-quoted rule that a waiver of fundamental right must be "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Miranda v. State of Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The decisions did not reach the question of whether a defendant adequately informed of the charges against him could avoid the demand requirement simply because of the absence of the indictment per se.
We believe that in the absence of an indictment no amount of information communicated to a potential defendant can require him to demand his speedy indictment or waive the protection against delay given by the Sixth Amendment. An explanation of this conclusion requires an examination of the reasons underlying the general demand rule and a comparison of those considerations with the realities of Appellant's position before indictment.
The rule has been designed to deal with two problems associated with the assertion of speedy trial rights. One is the danger of releasing factually guilty persons who have contributed to an impermissible delay by their acquiescence in prosecution sought delays or by engaging in dilatory tactics of their own. By requiring an accused to go on record with his request for prompt trial the courts have hoped to avoid unnecessary disputes as to whether or not there was acquiescence or whether a particular delay resulted from a maneuver by prosecution or defense. A second and related reason for the demand rule has been the courts' unwillingness to allow a defendant to remain silent and reap what are seen to be the benefits of delay and then later to be allowed to claim the speedy trial protection. Among the "benefits" which a defendant is seen to receive from delay are: additional time free on bail before trial; the disappearance of prosecution witnesses; a change in the prosecutor's decision to go ahead with the matter. See United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir. 1963); Barker v. Wingo, 442 F.2d 1141
The assumptions which give life to these rationales have been under increasing attack recently (see cases cited at n. 6). While these assaults on the established rule do present a well reasoned approach it is not necessary to agree with them as regards the demand rule as a whole to conclude that the rationales for the general demand rule have little relevance to the present situation.
Appellant did not contribute in any way to the delay. The State was firmly convinced that it had no obligation to try Appellant and no demand could have led to a speedier trial.
So too is the second. Appellant gained no advantage from delay here nor is it likely that he could have. He gained no additional period of freedom by failing to press for speedy trial; he was imprisoned at all times. He could not expect the prosecution to reverse itself and decide not to prosecute on the indictment; no indictment had ever been filed during his prison stay.
While Tennessee's refusal to grant out of state prisoners a trial in the pre-Smith v. Hooey period uniquely undercuts any demand rationale here, we believe that it is almost as clear that that rationale has little applicability to any prisoner serving one sentence and facing the possibility of trial on another charge for which he has not yet been indicted. Few such prisoners can expect to receive any benefit from prolonged delay. They have neither their freedom to retain nor any expectation that they can dissuade a prosecutor from proceeding if such is his determination. The likelihood of losing witnesses falls more heavily on a prisoner unable to maintain significant contacts with the outside world than on a prosecutor with the power and resources of the state at his disposal. Meanwhile the delay may cost the prisoner concurrent sentencing possibilities, limit parole opportunities and hamper his preparation for trial. There is little reason for a prisoner in Appellant's position to seek delay. Neither does such prisoner have any substantial opportunity to hinder a speedy prosecution in the pre-indictment stage. The only rationale for the demand rule which can possibly be applicable to such a prisoner in general is the desire that defendants be required to remind the prosecutor of delays so that unnecessary ones may be avoided. Whatever the merits of this requirement in the post-indictment situation they are noticeably lacking in the pre-indictment stage.
It is one thing to require a defendant formally accused by the community through an indictment to choose either the benefits of silent acquiescence in delay or the possibility of prompt vindication through the assertion of his speedy trial rights. It is quite another to expect a man, not yet indicted and by no means certain that he ever will be indicted, to seek very thing he justly fears—the return of a true bill by the Grand Jury. See United States v. Colitto, 319 F.Supp. 1077, 1082-1083 (E.D.N.Y.1970).
The demand rule already reflects a rather peculiar view of the relative responsibilities for bringing on a trial; to hold that an individual must not only see to it that his trial is timely held, but that the preliminary stages of his prosecution are also undertaken with appropriate
Finding that a long and prejudicial delay occurred in this case, that the delay cannot be justified under applicable constitutional standards and that Appellant did not waive his right to assert his speedy trial claim, we hold that he was denied the protection against delay afforded him by the Sixth Amendment. We reverse and remand to the District Court with instructions to grant the writ.
WEICK, Circuit Judge (dissenting).
In my opinion the speedy trial safeguard of the Sixth Amendment applies only to delay occurring after the defendant has been charged with the commission of an offense. In the present case only a warrant for his arrest had been issued in Tennessee. He had not been arrested; rather, only a detainer was filed with authorities in Illinois. It is questionable here whether a demand for trial was ever made to the proper authority. See Short v. Cardwell, 444 F.2d 1368 (6th Cir. 1971).
Delay in filing an indictment is governed by the applicable statute of limitations. This has been the established law of the Sixth Circuit for many years. Lothridge v. United States, 441 F.2d 919 (6th Cir. 1971); United States v. Harris, 412 F.2d 471 (6th Cir. 1969); Hoopengarner v. United States, 270 F.2d 465, 469 (6th Cir. 1959); Parker v. United States, 252 F.2d 680 (6th Cir.), cert. denied, 356 U.S. 964, 78 S.Ct. 1003, 2 L.Ed.2d 1071 (1958). Accord: Reece v. United States, 337 F.2d 852 (5th Cir. 1964); Harlow v. United States, 301 F.2d 361 (5th Cir.), cert. denied, 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56 (1962); Foley v. United States, 290 F.2d 562 (8th Cir. 1961); D'Aquino v. United States, 192 F.2d 338 (9th Cir. 1951), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952). See also United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (Decided December 20, 1971).
I would affirm for the reasons stated by Chief Judge Bailey Brown in his Memorandum Decision and Order Denying Petition and Dismissing Action, 334 F.Supp. 1316.
Even without affording Klopfer retroactivity the full eight and one-half year delay would be taken into account, of course, if we chose to follow Mr. Justice Harlan's suggestion in Dickey and apply the rule enunciated in that case as an interpretation of the due process clause. See Hoskins v. Wainwright, 440 F.2d 69, 72 n. 2 (5th Cir. 1971); cf. Lassiter v. Turner, 423 F.2d 897, 902-904 (4th Cir. 1970) cert. denied 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1971), where Klopfer was applied retroactively.
Circumstances of this case do not require us to decide the retroactivity of Klopfer or the appropriateness of viewing Smith and Dickey as due process decisions.
It can be urged that such language contemplates defendant's full awareness of the charges against him, but rejects the applicability of the demand doctrine in a pre-indictment situation.