No. 12746 IN

### THE SUPREME COURT OF 

### THE STATE OF MONTANA 1974



### BERNARD JAMES FITZPATRICK

## , Petitioner,

ROGER W. CRIST, WARDEN MONTANA STATE PRISON, Respondent.

Counsel of Record: For Petitioner: David J. Patterson, argued, Missoula, Montana For Respondent : Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas A. Budewitz, Assistant Attorney General,

argued, Helena, Montana

Submitted: November 12, 1974

### Mr. Chief Justice James 

### T. Harrison delivered the Opinion of the Court.

This 

### isan original proceeding in this Court. On April 15, 1972, petitioner Bernard Fitzpatrick and on April 17, 1972, one Gus Gardner were arrested for the murder of a fellow inmate atthe Montana State Prison inDeer Lodge, Montana. During the trialon February 

### 28, 1973, Gardner was granted a directed verdict of not guilty, but petitioner

### was convicted of second degree murder and sentenced toa term of twenty years, tobe served consecutively with the fiveyear term he 

### was serving at the time of his arrest. Petitioner unsuccessfully challenged certain evidentiary matters upon appeal to this Court, which affirmed his conviction on December 4, 1973. Statev. Fitzpatrick, Mont

# . ,516 P.2d 605, 30 St.Rep. 1052. 

### On April 22, 1974, petitioner filedpro 

### se a "Petition for Writof Habeas corpus" with this Court. Among other things, he alleged the district court prejudiced his rightsby failingto make timely appointment of counsel; to arraign him in the manner required by law; or togrant him a speedy 

### ttial as 

### demanded. On the same day this Court issued ail order referring the petition totheMontana Defender Project in order that it ascertain the validity of petitioner's allegations and take appropriate action. The Montana Defender Project 

### is a clinical legal aid program supervised by the University of Montana Law School and staffedby senior law students. Professor David J. Patterson and student Ken Green spent severalmonths investigating petitioner's claims and from prison records, letters, and the like, were abletoconstruct a factual framework satisfactory to this Court for the purpose of actingupon the petition. Finally, itwas agreed among allconcerned that inorder toexpedite matters this proceeding would be considered a post-conviction hearing, (See Chapter 26, Title 95, R.C.M. 1947, Sections 95-2601-2608), rather than an application forhabeas corpus under theMontana Rules of Criminal Procedure.The briefswith attached exhibits submitted inpetitioner's lehalf by theMontana Defender Project bring tolight these events: After his "arrest" on April 15, 1972, petitioner

### was taken toa segregation cellwithin the main walls of theprison. Three days later a complaint chargingmurder was issued and an initialhearing

was held inthe deputywarden's office. Petitioner and Gardner

were informed of theirrights, including the right toappointed counsel. Petitioner requested appointed counsel atthat time. On April 26, 1972, petitioner was transferred from his segregation celltoa maximum security cell (one used for disciplinary purposes) where he stayed untilJuly 19, 1972. On May 

### 4, 1972, petitioner sent 

### a letter to the Honorable Sid Stewart, then districtjudge of the thirdjudicial district, requesting 

### a court appointed attorney. While awaiting word on this request, petitioner had hiswife contact the 

### law firm of Sandall, Moses 6 Cavan of Billings, Montana, about the possibility of representing him and Gardner. Shortly thereafter, D. Frank Kampfe, Esq., of that firm, made an appointment tovisit petitioner to discuss the case and make fee arrangements. On May 18, 1972, William Taylor, Esq., of Deer Lodge visited petitioner 

### at the prison. Apparently Taylor was sent by Judge Stewart inresponse topetitioner's letter of May 

### 4. After discussing the casewith petitioner, Taylor advised petitioner he would not represent him. Kampfe visited petitioner and Gardner attheprison on May 30, 1972. Gardner paid Kampfe $800 as a retainer and informed him that he (Gardner) might be able toraise themoney needed torepresent both defendants. Petitioner claimed an inability topay anything. On July 5, 1972, Kampfe withdrew from the casebecause of a conflict of interestwithin his law firm. He returned $700 to Gardner, keeping the other $100 for timeand expenses incurred in making the visit to the prison. Kampfe alsoadvised theMontana Defender Project of the case and asked that defendants be contacted

as soon aspossible.

### On July 12, 1972, theMontana Defender Project notifiedpep 

### titioner that the Defender Project didnot represent anyone at the 

### trial level. Professor Patterson, however, offered tokeep petitioner advised of the proceedings against him and informed him of hisright tocourt appointed counsel. On July 15, 1972, three months afterhis arrest, petitioner

was still inmaximum security and without the aid of counsel. 

### On this date, ina letter to theMontana Defender Project, petitioner expressed his disappointment with the project's inability torepresent him and mentioned his difficulitiesin getting legal assistance; his confinement inmaximum security since April; and, his ignorance of the situation. He closed with a plea tohave

1Isomeone from the ~efender's Project come down and talk tous and 

### let us know just what 

### isgoing on. II On July 25, 1972, petitioner sent these papers to the district court: 

### I. A motion to fileand proceed in forma pauperis; 2. A motion for appointment of counsel; 

### 3. A demand for speeetrial; and 

### 4. A motion todismiss. Allof these papers were received and filed in the district court

on July 27, 1972. On August 22, 1972, over four months (126 days) after the initialappearance, petitioner's preliminary hearing began. Petitioner testifiedhe

### was indigent and requested appointed counsel. The hearing therefore 

### was continued for a week to allow appointment of counsel. The state, however, did take depositions of four major witnesses then present. On August 

### 24, 1972, Judge Stewart appointed James J. 

### Masar, Esq., of Deer Lodge torepresent petitioner. From the initialhearing, where petitioner firstrequested appointment of counsel, to the actual appointment therewas a delay of over four months (128 days). On August 28, 1972, the preliminary hearingwas completed. The order binding petitioner and Gardner over to the district court fortrialwas issued on October 

### 4, 1972, and the Information against them was filed on October 12, 1972. The trial of both defendants began on February 26, 1973, and lasted two days. From the date of the demand for speedy trial to the date of the trial over seven months (216 days) had elapsed. In light of the above facts, petitioner contends: 1. The four month delay between the initialhearing and the preliminary hearing violated section 95-902, R.C.M. 

### 1947. 2. The four month delay in the appointment of counsel deprived petitioner of his right to effectivecounsel. 

### 3. The seven month delaybetween the demand for speedy trial and the trial deprived petitioner of his right to a speedy trial. At the outset it should be observed that we are proceeding

on the assumption petitioner has not waived these issues, despite his failure toraise them earlier. We do not reject the general proposition that such questions should be interposed aspromptly

aspossible, but only say that the unusual facts of this case make

a clear cut determination of waiver difficult. Unless there 

### is substantial evidence of waiver, constitutional claims must be heard

on their merits. The basic right to counsel 

### is firmly established by the United States and Montana Constitutions and the Montana Code of Criminal Procedure. The narrow issue here inwhen thisright attaches and whether 

### a four month delay in the appointment of counsel, while the defendant 

### isconfined inmaximum security, renders counsel ineffective. We areconvinced that under both federal and Montana law petitioner's right to appointed counsel attached no later than his initialhearing; that petitioner did not waive his right to appointed counsel; and that the delay in the appointment of counsel

was prejudicial topetitioner's case. Our law provides that any arrested person must be brought without unnecessary delay before a judge for an initial appearance, and that it 

### is the duty of thatjudge toadvise defendant of his right tocounsel, and of his right tohave counsel assigned by a court of

### record. Sections 95-901and 95-902,

### R.C.M. 1947. Obviously the court's duty cannot end with a mere reading ofhis rights to defendant; if defendant requests counsel to be appointed the court without unnecessary delaymust determine indigency and appoint counsel accordingly. How can this duty be fulfilled by delaying the appointment of counsel for fourmonths while the state prepares its case and the defendant lingers in a prison

or a jail? The length of the delay here, coupled with petitioner's plight during the interim, shocks one's concept of fundamental fairness and due process. Federal cases compel the same result. See: Escobedo v, Illinois, 378U.S. 478, 84 S,Ct. 1758, 12 

### L ed 2d977;United States v. Wade, 388 

### U.S. 218, 

### 87 S.Ct. 1926, 

### 18 L ed 2d 1149. Our holding on the issue of delay in appointing counsel for petitioner is buttressed by a showing of actual prejudice. One defense petitioner raised at trialwas that of alibi. The delay

saw a release from the state prison of many potential alibi witnesses and caused a loss ofmemory in thosewho remained, 

### On April 15, 1972,the date of petitioner's arrest, the section of the prison to which petitioner was assigned contained 112 inmates, By August 24, 1972, the date counsel was appointed, 

### 65 of these inmates had been released. This turnover of inmates seriously undermined counsel's ability to conduct interviews to see who could verify petitioner's alibi. Another defense concerned the interchange and labeling of prisoner clothing. Introduced in evidence at trial were three articles of blood stained clothing. Only one of these articles-- a pair of prison issued levis--borepetitioner's name. Petitioner contends that on the day of his arrest he could account for all the lev* issued to him,but the*l$y 

### in appointing counselmade it impossible for his attorney to investigate and prove such a contention. Unquestionably, the deprivation of counsel for four months rendered these defenses virtuallymeaningless.We alsobelieve the seven month delaybetween the demand for speedy trialand the trialitself violated petitioner's right toa speedy trial. The United Sta

### tes and the Montana Constitutions guarantee an accused the right to a speedy trial. The United States Supreme Court and this Court have adopted essentially the same test

It to determine whether a trial

### is speedy". Compare Barker v. Wingo, 407 U.S. 514, 530, 532, 92 S.Ct. 2182, 33 L ed 2d 101, with State

v. Lagerquist, 152 Mont. 21, 

### 445 P.2d 910. Barker describes this test asa balancing test "in which the conduct of both the prosecution and the defendant areweighed." It identifies the factors involved as: 

### 1. Length of delay; 

### 2. Reason for delay; 3. ~efendant's assertion of the right; and 4. Prejudice to defendant. Applying this test to the instant case, 

### we find: Length of delay: Seven months. We emphasize this delay 

### is not considered a 

### per

# - seviolation of petitioner's right toa speedy trial, but under the circumstances here it 

### is thought long enough to shiftto the statethe burden of explaining the reason for the delay and showing absence of prejudice topetitioner. Reason for delay: The state's contention that it took much 

### timetogather and analyze the evidence used against petitioner athis trial 

### isunsatisfactory because the record here explains this caused no more than two and one-half months of the delay. Moreover, the evidence gathering process startedbefore petitioner demanded 

### a speedy trial. It 

### isnot seriously contended that petitioner orhis counsel contributed tothe delay. ~efendant's assertion of the right: petitioner's written demand for speedy trial seven months before his trialbegan 

### is a matter of record. Prejudice todefendant: Barker explained what lay at the heart of this fourth factor:

# "*

# ** Prejudice,of course, shouldbe assessed in the light of the interests of defendants which the speedy trial rightwas 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 defensewill be impaired. Of these, the most serious is the last,because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. Ifwitnesses die or disappearduringa delay, the pre-

'udice is obvious. There is also prejudice ii defense iitnesses areunable to recall accurately events of the distant past. Loss of memory, however, isnot always retlected in the record becausewhat has been forgotten can rarely be shown." 

### (Emphasis added). To the same effect is State 

### v. Mielke, 148Mont. 320, 322, 420 P.2d 

### 155, citing United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L ed 2d 627. We think petitioner was clearlyprejudiced with respect to all three interestsdiscussed in Barker. First,when petitionerwas arrested hewas serving a sentence at the "honor farm" of the state prison,but thereafterhe was placed in maximum security for over three months. Without more, the statemerely asserts such confinementwas lawful and necessary. This is hardly sufficient to carry the state's burden. Second,petitioner's predicament maximized, rather than minimized, his anxiety and concern. This is amply demonstrated by his letter of July 15, 1972, to the Montana Defender Project and by his motion for speedy trial of July 

### 27, 1972,wherein he alleged physical and mental anguish of such a nature as to inhibit him fromassisting in his own defense. The state's position that any man accused of a serious crimewill suffer some anxiety and
concern and that minimization of these emotions is largely subject to individual quirks of personality utterly fails to come to grips with the stark realities here. Third,what has already been said about the delay in appointment of counsel impairing petitioner's alibi defense applies evenmore strongly to the problem of speedy trial, since petitioner's trial

was delayed another six months after counselwas finallyappointed.

### From the foregoing, it is plain the stateby its unexcused inaction deprived petitioner of effective representationby counsel and a speedy trial. Sincewe have decided the case on these issues, it becomes unnecessary to considerwhether section 

### 95-902,R.C.M. 

### 1947,was violated. The judgment of conviction of February 

### 28, 1973, is-setaside and the sentencevacated,with prejudice.



# ..................................... Chief Justice

We Concur:

Justices.