# Klopfer v. North Carolina/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Stewart Harlan
United States Supreme Court
386 U.S. 213
Klopfer v. North Carolina
Argued: Dec. 8, 1966. --- Decided: March 13, 1967
The question involved in this case is whether a State may indefinitely postpone prosecution on an indictment without stated justification over the objection of an accused who has been discharged from custody. It is presented in the context of an application of an unusual North Carolina criminal procedural device known as the 'nolle prosequi with leave.'
Under North Carolina criminal procedure, when the prosecuting attorney of a county, denominated the solicitor, determines that he does not desire to proceed further with a prosecution, he may take a nolle prosequi, thereby declaring 'that he will not, at that time, prosecute the suit further. Its effect is to put the defendant without day, that is, he is discharged and permitted to go whithersoever he will, without entering into a recognizance to appear at any other time.' Wilkinson v. Wilkinson, 159 N.C. 265, 266-267, 74 S.E. 740, 741, 39 L.R.A.,N.S., 1215 (1912). But the taking of the nolle prosequi does not permanently terminate proceedings on the indictment. On the contrary, 'When a nolle prosequi is entered, the case may be restored to the trial docket when ordered by the judge upon the solicitor's application.' State v. Klopfer, 266 N.C. 349, 350, 145 S.E.2d 909, 910 (1966). And if the solicitor petitions the court to nolle prosequi the case 'with leave,' the consent required to reinstate the prosecution at a future date is implied in the order 'and the solicitor (without further order) may have the case restored for trial.' Ibid. Since the indictment is not discharged by either a nolle prosequi or nolle prosequi with leave, the statute of limitations remains tolled. State v. Williams, 151 N.C. 660, 65 S.E. 908 (1909).
Although entry of a nolle prosequi is said to be 'usually and properly left to the discretion of the Solicitor,' State v. Moody, 69 N.C. 529, 531 (1873), early decisions indicate that the State was once aware that the trial judge would have to exercise control over the procedure to prevent oppression of defendants. See State v. Smith, 129 N.C. 546, 40 S.E. 1 (1901); State v. Thornton, 35 N.C. 256 (1852). But, in the present case, neither the court below nor the solicitor offers any reason why the case of petitioner should have been nolle prossed except for the suggestion of the Supreme Court that the solicitor, having tried the defendant once and having obtained only a mistrial, 'may have concluded that another go at it would not be worth the time and expense of another effort.' 266 N.C., at 350, 145 S.E.2d, at 910. In his brief in this Court, the Attorney General quotes this language from the opinion below in support of the judgment.
Whether this procedure is presently sustained by the North Carolina courts under a statute or under their conception of the common-law procedure is not indicated by the opinion of the court, the transcript or the briefs of the parties in the present case. The only statutory reference to a nolle prosequi is in § 15-175, General Statutes of North Carolina, which on its face does not apply to the facts of this case. Perhaps the procedure's genesis lies in early nineteenth century decisions of the State's Supreme Court approving the use of a nolle prosequi with leave to reinstate the indictment, although those early applications of the procedure were quite different from those of the period following enactment of § 15-175. Compare State v. Thompson, 10 N.C. 613 (1825), and State v. Thornton, 35 N.C. 256 (1852) (capias issued immediately after entry of the nolle prosequi with leave), with State v. Smith, 170 N.C. 742, 87 S.E. 98 (1915) (capias issued eight years after a nolle prosequi with leave was taken, even though the fendant had been available for trial in 1907).
The consequence of this extraordinary criminal procedure is made apparent by the case before the Court. A defendant indicted for a misdemeanor may be denied an opportunity to exonerate himself in the discretion of the solicitor and held subject to trial, over his objection, throughout the unlimited period in which the solicitor may restore the case to the calendar. During that period, there is no means by which he can obtain a dismissal or have the case restored to the calendar for trial. In spite of this result, both the Supreme Court and the Attorney General state as a fact, and rely upon it for affirmance in this case, that this procedure as applied to the petitioner placed no limitations upon him, and was in no way violative of his rights. With this we cannot agree.
This procedure was applied to the petitioner in the following circumstances: On February 24, 1964, petitioner was indicted by the grand jury of Orange County for the crime of criminal trespass, a misdemeanor punishable by fine and imprisonment in an amount and duration determined by the court in the exercise of its discretion. The bill charged that he entered a restaurant on January 3, 1964, and, 'after being ordered * * * to leave the said premises, wilfully and unlawfully refused to do so, knowing or having reason to know that he * * * had no license therefor * * *.' Prosecution on the indictment began with admirable promptness during the March 1964 Special Criminal Session of the Superior Court of Orange County; but, when the jury failed to reach a verdict, the trial judge declared a mistrial and ordered the case continued for the term.
Several weeks prior to the April 1965 Criminal Session of the Superior Court, the State's solicitor informed petitioner of his intention to have a nolle prosequi with leave entered in the case. During the session, petitioner, through his attorney, opposed the entry of such an order in open court. The trespass charge, he contended, was abated by the Civil Rights Act of 1964 as construed in Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964). In spite of petitioner's opposition, the court indicated that it would approve entry of a nolle prosequi with leave if requested to do so by the solicitor. But the solicitor declined to make a motion for a nolle prosequi with leave. Instead, he filed a motion with the court to continue the case for yet another term, which motion was granted.
The calendar for the August 1965 Criminal Session of the court did not list Klopfer's case for trial. To ascertain the status on his case, petitioner filed a motion expressing his desire to have the charge pending against him 'permanently concluded in accordance with the applicable laws of the State of North Carolina and of the United States as soon as is reasonably possible.' Noting that some 18 months had elapsed since the indictment, petitioner, a professor of zoology at Duke University, contended that the pendency of the indictment greatly interfered with his professional activities and with his travel here and abroad. 'Wherefore,' the motion concluded, 'the defendant * * * petitions the Court that the Court in the exercise of its general supervisory jurisdiction inquire into the trial status of the charge pending against the defendant and * * * ascertain the intention of the State in regard to the trial of said charge and as to when the defendant will be brought to trial.'
In response to the motion, the trial judge considered the status of petitioner's case in open court on Monday, August 9, 1965, at which time the solicitor moved the court that the State be permitted to take a nolle prosequi with leave. Even though no justification for the proposed entry was offered by the State, and, in spite of petitioner's objection to the order, the court granted the State's motion.
On appeal to the Supreme Court of North Carolina, petitioner contended that the entry of the nolle prosequi with leave order deprived him of his right to a speedy trial as required by the Fourteenth Amendment to the United States Constitution. Although the Supreme Court acknowledged that entry of the nolle prosequi with leave did not permanently discharge the indictment, it nevertheless affirmed. Its opinion concludes:
'Without question a defendant has the right to a speedy trial, if there is to be a trial. However, we do not understand the defendant has the right to compel the State to prosecute him if the state's prosecutor, in his discretion and with the court's approval, elects to take a nolle prosequi. In this case one jury seems to have been unable to agree. The solicitor may have concluded that another go at it would not be worth the time and expense of another effort.
'In this case the solicitor and the court, in entering the nolle prosequi with leave followed the customary procedure in such cases. Their discretion is not reviewable under the facts disclosed by this record. The order is affirmed.' 266 N.C., at 350-351, 145 S.E.2d, at 910.
The North Carolina Supreme Court's conclusion-that the right to a speedy trial does not afford affirmative protection against an unjustified postponement of trial for an accused discharged from custody-has been explicitly rejected by every other state court which has considered the question. That conclusion has also been implicitly rejected by the numerous courts which have held that a nolle prossed indictment may not be reinstated at a subsequent term.
We, too, believe that the position taken by the court below was erroneous. The petitioner is not relieved of the limitations placed upon his liberty by this prosecution merely because its suspension permits him to go 'whithersoever he will.' The pendency of the indictment may subject him to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes. By indefinitely prolonging this oppression, as well as the 'anxiety and concern accompanying public accusation,' the criminal procedure condoned in this case by the Supreme Court of North Carolina clearly denies the petitioner the right to a speedy trial which we hold is guaranteed to him by the Sixth Amendment of the Constitution of the United States.
While there has been a difference of opinion as to what provisions of this Amendment to the Constitution apply to the States through the Fourteenth Amendment, that question has been settled as to some of them in the recent cases of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). In the latter case, which dealt with the confrontation-of-witnesses provision, we said:
'In the light of Gideon, Malloy, and other cases cited in those opinions holding various provisions of the Bill of Rights applicable to the States by virtue of the Fourteenth Amendment, the statements made in West (West v. State of Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965) and similar cases generally declaring that the Sixth Amendment does not apply to the States can no longer be regarded as the law. We hold that petitioner was entitled to be tried in accordance with the protection of the confrontation guarantee of the Sixth Amendment, and that that guarantee, like the right against compelled self-incrimination, is 'to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.' Malloy v. Hogan, supra, 378 U.S. (1), at 10, 84 S.Ct. (1489), at 1495 (12 L.Ed.2d 653).'
We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, 'We will sell to no man, we will not deny or defer to any man either justice or right'; but evidence of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon (1166). By the late thirteenth century, justices, armed with commissions of gaol delivery and/or oyer and terminer were visiting the countryside three times a year. These justices, Sir Edward Coke wrote in Part II of his Institutes, 'have not suffered the prisoner to be long detained, but at their next coming have given the prisoner full and speedy justice, * * * without detaining him long in prison.' To Coke, prolonged detention without trial would have been contrary to the law and custom of England; but he also believed that the delay in trial, by itself, would be an improper denial of justice. In his explication of Chapter 29 of the Magna Carta, he wrote that the words 'We will sell to no man, we will not deny or defer to any man either justice or right' had the following effect:
'And therefore, every subject of this realme, for injury done to him in bonis terris, vel persona, by any other subject, be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.'
Coke's Institutes were read in the American Colonies by virtually every student of the law. Indeed, Thomas Jefferson wrote that at the time he studied law (1762-1767), 'Coke Lyttleton was the universal elementary book of law students.' And to John Rutledge of South Carolina, the Institutes seemed 'to be almost the foundation of our law.' To Coke, in turn, Magna Carta was one of the fundamental bases of English liberty. Thus, it is not surprising that when George Mason drafted the first of the colonial bills of rights, he set forth a principle of Magna Carta, using phraseology similar to that of Coke's explication: '(I)n all capital or criminal prosecutions,' the Virginia Declaration of Rights of 1776 provided, 'a man hath a right * * * to a speedy trial * * *.' That this right was considered fundamental at this early period in our history is evidenced by its guarantee in the constitutions of several of the States of the new nation, as well as by its prominent position in the Sixth Amendment. Today, each of the 50 States guarantees the right to a speedy trial to its citizens.
The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution.
For the reasons stated above, the judgment must be reversed and remanded for proceedings not inconsistent with the opinion of the Court. It is so ordered.
Judgment reversed and case remanded.

## Notes

* ↑ N.C.Gen.Stat. § 15-175 (1965):
* ↑ On oral argument, counsel for the State informed the Court that a North Carolina indictment could be quashed only if it contained a vitiating defect. See also N.C.Gen.Stat. §§ 15-153, 15 155 (1965).
* ↑ N.C.Gen.Stat. § 14-134 (Supp.1965). Although not expressly limited by statute, the extent of punishment is limited by N.C.Const.1868, Art. I, § 14 ('Excessive bail should not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted'). See State v. Driver, 78 N.C. 423 (1878). Decisions of the state courts indicate that imprisonment for up to two years would not be an 'unusual punishment.' See, e.g., State v. Farrington, 141 N.C. 844, 53 S.E. 954 (1906). The constitutional limitation upon the amount of the fine has not been judicially determined.
* ↑ See Rost v. Municipal Court of Southern Judicial District, 184 Cal.App.2d 507, 7 Cal.Rptr. 869, 85 A.L.R.2d 974 (1st Dist. 1960); Kistler v. State, 64 Ind. 371 (1879); Jones v. Commonwealth, 114 Ky. 599, 71 S.W. 643 (1903); Barrett v. State, 155 Md. 636, 142 A. 96 (1928); Hicks v. Judge of Recorder's Court of Detroit, 236 Mich. 689, 211 N.W. 35 (1926); State v. Artz, 154 Minn. 290, 191 N.W. 605 (1923).
* ↑ Thirty States continue to permit a prosecuting official to enter a nolle prosequi. Legislation or court decisions in 13 of these proscribe reinstatement of the indictment at a subsequent term. See Lawson v. People, 63 Colo. 270, 165 P. 771 (1917); Price v. Cobb, 60 Ga.App. 59, 61, 3 S.E.2d 131, 133 (1939) (by implication); State ex rel. Jones v. Newell, 117 So.2d 752 (D.C.App.Fla., 2d Dist., 1960); State v. Wong, 47 Haw. 361, 389 P.2d 439 (1964); People v.
* ↑ United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966).
* ↑ 380 U.S., at 406, 85 S.Ct. at 1069.
* ↑ Magna Carta, c. 29 (c. 40 of King John's Charter of 1215) (1225), translated and quoted in Coke, The Second Part of the Institutes of the Laws of England 45 (Brooke, 5th ed., 1797).
* ↑ '4. And when a robber or murderer or thief or receiver of them has been arrested through the aforesaid oath, if the justices are not about to come speedily enough into the country where they have been taken, let the sheriffs send word to the nearest justice by some well-informed person that they have arrested such men, and the justices shall send back word to the sheriffs informing them where they desire the men to be brought before them; and let the sheriffs bring them before the justices.' 2 English Historical Documents 408 (1953).
* ↑ An example of the Commission of gaol delivery is set forth in Goebel, Cases and Materials on the Development of Legal Institutions 53 (7th rev. 1946):
* ↑ Id., at 54.
* ↑ Coke, op. cit. supra, n. 8, at 43.
* ↑ See Ibid.
* ↑ Id., at 55. 'Hereby it appeareth,' Coke stated in the next paragraph, 'that justice must have three qualities, it must be libera, quia nihil iniquius venali justitia; plena, quia justitia non debet claudicare; et celeris, quia dilatio est quaedam negatio; and then it is both justice and right.' Later in the explication of Chapter 29, Coke wrote that in conformity with the promise not to delay justice, all of the King's 'commissions of oier, and terminer, of goale delivery, of the peace, &c. have this clause, facturi quod ad justitiam pertinet secundum legem, and consuetudinem Angliae, that is, to doe justice and right, according to the rule of the law and custome of England * * *.'
* ↑ See Warren, History of the American Bar 157-187 (1911); Meador, Habeas Corpus and Magna Carta 23-24 (1966).
* ↑ Quoted in Warren, op. cit. supra, n. 15, at 174.
* ↑ Quoted in Bowen, The Lion and the Throne 514 (1956).
* ↑ See Coke, op. cit. supra, n. 8, at A4 (Proeme).
* ↑ See 1 Rowland, The Life of George Mason 234-266 (1892).
* ↑ See Va. Declaration of Rights, 1776, § 8.
* ↑ See Del.Const., 1792, Art. I, § 7; Md. Declaration of Rights, 1776, Art. XIX; Pa. Declaration of Rights, 1776, Art. IX; Va. Declaration of Rights 1776, § 8. Mass.Const., 1780, Part I, Art. XI, provided:
'Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.'
This has been construed as guaranteeing to all citizens the right to a speedy trial. See Commonwealth v. Hanley, 337 Mass. 384, 149 N.E.2d 608, 66 A.L.R.2d 222 (1958). A similar provision was included in the New Hampshire Constitution of 1784, Part I, Art. XIV.
Kentucky, Tennessee, and Vermont, the three States which were admitted to the Union during the eighteenth century, specifically guaranteed the right to a speedy trial in their constitutions. See Vt.Const. 1786, c. I, Art. XIV; Ky.Const.1792, Art. XII, § 10; Tenn.Const.1796, Art. XI, § 9.
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