Warren E. Burger: We’ll hear arguments next in 72-5521, Strunk against the United States. Mr. Wideikis, you may proceed when you’re ready.
John R. Wideikis: Mr. Chief Justice, may it please the Court. This case recently began a serious examination of the right to a speedy trial. It began with the United States versus Marion where this Court determined when the right to a speedy trial attaches and continue with Barker versus Wingo in which this Court enunciated the balancing formula to be applied in making ad hoc determinations as to whether or not that right has been violated. This Court today is called upon to determine the sole issue of remedy to be applied upon a finding of a denial of a speedy trial this was the basic issue or the basic question framed in the petition writ of certiorari. The Government in its brief however, wishes to raise as an additional issue the question whether the Court of Appeals made a proper ad hoc determination in finding that Mr. Strunk in this case had been denied his right to a speedy trial. And because I don’t know whether this Court wishes to consider re-examination of those findings of the Court of Appeals I will give a broad statement of the facts. This case began on June 30, 1969 when Clarence Strunk stole the car in Wisconsin and shortly thereafter drove at the Illinois where he abandoned it. He eventually made his way to the State of Nebraska where on July 24, 1969 he was arrested on a state charge of burglary. On a plea of guilty to a reduced charge of larceny he received a one to three-year sentence in the Nebraska State Penitentiary. While in Nebraska custody on September 3, 1969 at his own request he was seen by an FBI agent, at which time he was advised of his rights and he signed a waiver form. At the time of that interview, he made detailed admissions pertaining to the facts of the crime that he had committed and he further indicated to the FBI agent that it was his intension “To demand a speedy trial under Rule 20.” On December 17, 1969 the U.S Attorney in the District of Nebraska wrote to the U.S Attorney in the Eastern District of Illinois and in his letter indicated that Mr. Strunk desired to enter a plea under Rule 20 and on the following day the U.S. Attorney of Illinois sent in Nebraska the necessary forms required to process a case under Rule 20.
Warren E. Burger: How long after the indictment did that occur?
John R. Wideikis: This is pre-indictment.
Warren E. Burger: This is pre-indictment.
John R. Wideikis: This is pre-indictment Mr. Chief Justice Wright and we are raising no issue as to pre-indictment delay but I want to give a broad statement of facts. On May 26, 1970 after no further word was received from Nebraska the U.S Attorney in Illinois presented this matter to the grand jury and an indictment was returned on that date. On August 13, 1970, correspondence was receive by the U.S Attorney in the Eastern District of Illinois from his counterpart in Nebraska indicating that Mr. Strunk definitely refused to enter a plea under Rule 20 and that he intended to raise and issue a speedy trial. As the Court of Appeals put it, thereafter nothing happened until February 9, 1971 when Mr. Strunk was brought to East St. Louis, Illinois on a writ of habeas corpus ad prosequendum. And there in the District Court for the Eastern District of Illinois he was arraigned at which time counsel was appointed a plea of not guilty was entered and trial was set for March 29, 1971. Prior to the trial, Mr. Strunk’s counsel move for a dismissal of the indictment for want of speedy trial. The motion was denied. He went to trial as originally scheduled on March 29, 1971. He was tried by a jury, he did not take the stand and he offered no affirmative defense and he was found guilty. He received a sentence of five years imprisonment which sentence was to run concurrently with the sentence he was then serving in Nebraska. An appeal was taken at that point I was appointed counsel for Mr. Strunk. Our case was argued on May 30, 1972. On June 22, 1972 the decision in Barker versus Wingo came down. It was recognized by the Court of Appeals and it was a controlling case applied to the facts in the instant case.
Warren E. Burger: Is it correct that an about 2-1/2 months more or less was delayed by reason of this discussion of plea of nolo contendere?
John R. Wideikis: Yes, Your Honor. There was some delay on that and in fact that subject was treated within the findings of the Court of Appeals. What the Court of Appeals said they concluded first I will start with the conclusion they said that no part of the delay after the indictment was attributable to Mr. Strunk. The Court said that he did not have counsel at that time that he may have seem to have desire to proceed under Rule 20, and in fact when he was quoted as having said that he wish to demand a speedy trial under Rule 20, it did not make any sense to the Court of Appeals. If anything, it seemed to be an assertion of his right to a speedy trial a desire for a speedy trial which of course he didn’t get. Now the Court of Appeals found that the length of the delay in this case between indictment and arraignment was 259 days and they felt that it was in --
William J. Brennan, Jr.: May I just add. Do you read the Government as asking us to review the conclusion that a speedy was denied?
John R. Wideikis: It is suggested in their brief Your Honor and --
William J. Brennan, Jr.: I thought all they were saying was the assuming arguendo. I don’t understand the challenge of finding that.
John R. Wideikis: The challenge Your Honor I find in their brief.
William J. Brennan, Jr.: That they have -- they didn’t cross-petition.
John R. Wideikis: They did not cross-petition Your Honor.
William J. Brennan, Jr.: I don’t read their question presented as suggesting that they challenge our holding.
John R. Wideikis: However, I got an impression on page 12 Your Honor in their brief at footnote 10 where I will quote “If this Court should conclude on a balance of the four factors in Barker that the present circumstances and explain 10 months delay resulting in virtually no prejudice do not establish a speedy trial violation etcetera” that struck me as -- I was impressed at that point Your Honor that they were urging re-examination of those issues and --
William J. Brennan, Jr.: I just don’t see how they can.
John R. Wideikis: I don’t either, Your Honor.
William J. Brennan, Jr.: No cross-petition. Well, I just wonder why you’re wasting so much time on it. We’ve got a difficult enough problem on --
John R. Wideikis: The argument is not very long at all, Your Honor. No. Okay. The delay was unjustified it was found. It found that Mr. Strunk had satisfactory asserted his right to a speedy trial and it held that he was prejudiced. Now a crucial aspect in this case is the type of prejudice suffered. The prejudice in this case was not prejudice with respect of the defense of his case but rather the court found that Mr. Strunk had been prejudiced because of undue and oppressive incarceration prior to trial relying on the language in Smith versus Hooey, and that Mr. Strunk suffered a substantial loss of concurrent time.
Warren E. Burger: And were they referring to Nebraska’s incarceration of him?
John R. Wideikis: No the federal incarceration, Your Honor. No that’s -- no, I’m sorry I misunderstood you. Right. They --
Warren E. Burger: He was in the Nebraska State Penitentiary awaiting trial, was he not?
John R. Wideikis: No, he was in the penitentiary. He had been convicted in Nebraska Your Honor.
Warren E. Burger: Yes but he was in Nebraska’s custody.
John R. Wideikis: He was in Nebraska’s custody, yes.
Warren E. Burger: Now did the Court of Appeals think this was an oppressive custody on him.
John R. Wideikis: They view this as oppressive incarceration yes, Your Honor.
Warren E. Burger: But did that rest on an independent conviction in the State of Nebraska in the state courts?
John R. Wideikis: No, it rested on the language in Smith versus Hooey, in that --
Warren E. Burger: No, I’m speaking of the custody -- Nebraska’s custody of this man before trial was based upon a conviction in Nebraska for a state defense in the state courts or have I misread the record?
John R. Wideikis: No, that is correct Your Honor.
Warren E. Burger: But the Court of Appeals viewed that as an oppressive custody in the context of the federal case.
John R. Wideikis: They did Your Honor, in the sense that, although he was lawfully imprisoned he was running the risk of losing substantial concurrent time. That is how they view the issue of prejudice on this case and that is how they found it.
Warren E. Burger: That would be on an assumption that sentence was going to be concurrent, wouldn’t it?
John R. Wideikis: Yes, it would be Your Honor. Right.
Warren E. Burger: But no one knew that there is a chance.
John R. Wideikis: There would be no way to know and I submit that the language in Smith versus Hooey where it points out that the possibility of loss of concurrent time is what the court really meant in that respect. It’s the possibility of this loss and of course the possibility did in fact become true in our case. The court in our case acknowledged that dismissal of the indictment was the traditional remedy. However they felt that, that was a drastic relief in this case. Accordingly, they remanded the case with direction that Mr. Strunk be given 259 days credit on his sentence. I would like to point out one thing parenthetically. The Government in its brief asserts that the petitioner somehow believes that the remedy applied below was appropriate. Well, of course if that’s true I don’t know why I am here today but in any event the briefs in the case below were written prior to the Barker versus Wingo decision. And we know that the Barker dicta contain some very interesting language on the subject of remedy. Furthermore, in my briefs below I listed a series of alternative relief. I did that in the event that if no finding of the denial of speedy trial were arrived at that if the court found some other error that was amenable to correction I wanted a tender relief that they might resort to. Now technically, the issue below before the Seventh Circuit Court of Appeals was whether or not the District Court adhered in denying Mr. Strunk’s motion to dismiss his indictment for want of a speedy trial and we submit that the perspective of the Court of Appeals was fixed by that issue. And that it was obliged to view the facts in analysis in that case from the same perspective as to Court of Appeals. Now the issue would necessarily require the court to make a determination as to whether or not there was a violation of the right, and since the Court of Appeals found the denial. It is reasonable that District Court should have found the denial of the right to a speedy trial and had the District Court done so, we submit that the one thing that it could not do at that point was to order Mr. Strunk to trial not withstanding. Yet this was the effect of the remedy that was applied by the Court of Appeals. The Government in its brief suggest that the District Court while finding a denial of a speedy trial could order Mr. Strunk to trial despite that fact adding that in the event he were convicted they would couple a ruling which would say that he could be given credit on his sentence for whatever unjustified delay occurred in that case. The difficulty with that argument is that it, it ignores that at time of the finding Mr. Strunk was presumed innocent and if on trial he refuted the result would have been an admitted denial of the right with no remedy. And this is serious we submit because it judicially repeals the word “speedy” from the Sixth Amendment and merely leaves an accused with the right to be tried. Now, we are also arguing in this case here that the remedy applied below if permitted to stand will encourage Government prosecutors to give low priority to cases of the sort involved here. That is where you have an accused who is a prisoner in another jurisdiction on a related charge. Now if a prosecutor can reasonably anticipate that the only prejudice to be suffered by an accused is this Smith versus Hooey type of undue and oppressive incarceration prior to trial he is really under no duty to exercise diligence in bringing the accused to trial. For the District Court presumably can compensate for a violation of the right in the event of conviction. Now since an accused such as Strunk can be seemingly made hold the prosecutors will decide a low priority to such cases. Now the Government in its brief asserts that there’s no substance to this position and I have difficulty understanding how they can make that assertion. I would like to call the Court’s attention specifically to page 10 in the Government’s brief where the Government in endeavoring to explain the delay in bringing Mr. Strunk to trial admits that in this case prosecutorial resources were devoted to other active cases commanding a higher priority than Mr. Strunk’s. The final point I’d like to make Your Honors, is that we are urging the remedy for a violation of the right to a speedy trial to be absolute discharge.
Warren E. Burger: With your -- in your view if in fact the prosecutor assigned a higher priority to take their terms to people who were being held in custody without bond waiting trial would you consider that an invalid priority assignment as compared with this man in a state prison under conviction in another charge.
John R. Wideikis: Your Honor, I find -- I’m sorry a system of priorities in this area to be totally repugnant and I submit this because it work such a gross unfairness to a defendant to have his case relegated to a low priority.
Warren E. Burger: Well, I’m just asking you whether in your view it would the – any priority would be invalid at all.
John R. Wideikis: I am not saying that -- what I think I’m trying to say, Your Honor is that and I’m not avoiding your question, is that we have a problem today that all of us recognize in terms of the effective administration of criminal justice. We have tremendous back logs, we have overworked prosecutors, we have overworked overburdened judges there’s no doubt about it. So while the system is far from perfect it is not any defendant’s fault that it is. If we have to assign responsibility for poor administration of justice if we care to it that, that it is societies fault not a defendants. And for that reason I can not acknowledge any validity to any system of priorities within cases. I can’t see how a decision can be made arbitrarily that one case is more important than another.
Harry A. Blackmun: Mr. Wideikis, you have repeatedly referred to undue and oppressive incarceration. I’m confused by you use of the word oppressive.
John R. Wideikis: Oppressive.
Harry A. Blackmun: Incarceration anymore oppressive than anybody in the other person.
John R. Wideikis: I think the language I have used Mr. Justice Blackmun comes from the decision in Smith versus Hooey. The Court used that language at the course was in U.S versus Ewell also. I think what the language suggests is that the distinction is this “undue incarceration” I would submit arises out of a negligence context. Let’s say a carelessness context in bringing someone to trial, mere accident in delaying. Whereas oppressive would be the most heinous form of incarceration part of the trial because there I think it is purposeful. Now I’m not making any claim in this case here that there was oppressive incarceration. I have coupled the term undue and oppressive because of the language in Smith versus Hooey.
Potter Stewart: You’re talking about the passage quoted at here on top of page 11 of your brief I assume.
John R. Wideikis: Yes, Your Honor.
Potter Stewart: Which in Smith against Hooey quoted that language, I think, from the Ewell case if I’m not mistaken undue and oppressive incarceration prior to trial?
John R. Wideikis: That came from Ewell, yes Your Honor. Right and in the decision they elaborated on it within a prisoner accused context.
Potter Stewart: Right.
John R. Wideikis: Now while the remedy of absolute discharge is severe it is no more severe than what a finding of a denial of a speedy trial right asserts. A finding of a denial of the right of the speedy trial is one of the few areas in the law that is not gray. It contains within itself a distinction is clearly precise as midnight is from noon. It says essentially Government you had the full and unfettered opportunity to try this accused you failed to do so and the fault is entirely yours. Now, if we wish to give meaning to the constitutional mandate that trials be speedy, then we submit we should enforce it vigorously with absolute discharge.
Harry A. Blackmun: And yet we’ve always spoken of prejudice in connection with the speedy trial. What was his prejudice here except the denial of possible confirmed time?
John R. Wideikis: Nothing more than that Your Honor that was it.
Harry A. Blackmun: And did not the Seventh Circuit result to render on to him that denial?
John R. Wideikis: Exactly what the Government take it the court can give it back. It was a compensatory remedy but it has no constitutional foundation for points that I’ve raised earlier. It’s the kind of a remedy that a District Court could not have done to give a compensatory remedy recognizes the validity of a trial while with this finding we submit, there could not have been a trial. This man was procedurally innocent he couldn’t get to substantive stage of proceedings. Now the Government suggests that absolute discharge serves the penalize society. Well, if it does then society must chastise not this defendant Mr. Strunk, but its agent the Government for squandering its right to try him. The Government suggests that we’re urging amnesty in this case. I don’t understand how they can use the word amnesty since amnesty usually pertains, it usually given to one who is at fault who’s committed some wrong but the finding of the denial of a speedy trial says that Strunk was procedurally innocent. Finally, the court suggest that the remedy urged by the petitioner visits retribution on the Government and the public. If it does, we submit that the retribution is self-inflicted and the injured should not be heard to complain. Thank you.
Harry A. Blackmun: Do you feel that you’re not attacking endlessly Mr. Barker against Wingo in anyway?
John R. Wideikis: Oh! No, sir. No, Your Honor.
Harry A. Blackmun: Precisely, in fact on that case?
John R. Wideikis: Oh! I don’t see that at all Your Honor. We have Barker versus Wingo applied by the Court of Appeals to the facts in the case. They made a determination that there was a denial of speedy trial here. Barker versus Wingo did not speak directly to the issue of remedy for a denial of a speedy trial but it contains dicta which suggested that dismissal to the indictment was the only possible remedy. But I have no appreciation of the suggestion Your Honor that it conflicts in anyway with Barker versus Wingo.
Warren E. Burger: Thank you. Mr. Reynolds.
William Bradford Reynolds: Mr. Chief Justice and may it please the Court. The issue in this case concerns the nature of the relief that can properly be accorded by the courts upon finding a violation of the Sixth Amendment right to a speedy trial.
William J. Brennan, Jr.: Excuse me Mr. Reynolds. I gather you are defending this by asking us to review the holding that there was a denial, right?
William Bradford Reynolds: Your Honor, I think that this Court could appropriately --
William J. Brennan, Jr.: Do you think we took the case for that purpose.
William Bradford Reynolds: I don’t believe you didn’t take the case for that purposes. I’m suggesting that, that is an -- that is --
William J. Brennan, Jr.: If we want it -- you mean, if we want to avoid deciding the issue for which we took it.
William Bradford Reynolds: That’s correct.
William J. Brennan, Jr.: And you responsibly never suggested that to the petition for certiorari.
William Bradford Reynolds: No that’s, that’s --
William J. Brennan, Jr.: And you never filed any cross-petition.
William Bradford Reynolds: We didn’t -- that’s, that’s true we did not file.
William J. Brennan, Jr.: And while you are doing you’re just saying we don’t have to decide the question because they were wrong anyway on the holding.
William Bradford Reynolds: I think that this Court could properly make that decision.
William J. Brennan, Jr.: Well, you’re urging us to do it, aren’t you?
William Bradford Reynolds: Well, we do address ourselves in our main brief to the principal issue and we did not as you might now.
William J. Brennan, Jr.: Why would we have taken the case if that was the disposition we made of it?
William Bradford Reynolds: Well, Your Honor, I’m not sure that we can anticipate the disposition that the Court’s going to make. I think that, that’s an argument.
William J. Brennan, Jr.: We have enough things to do, I should suggest.
William Bradford Reynolds: Well, I planned to address myself to the issue of the remedy. And I think that, that issue is whether the remedy of the Court of Appeals can properly be accorded by the courts on a finding of a Sixth Amendment speedy trial violation. And that fundamental right to a speedy trial has for many years been defined by the courts in absolute terms. That is that it requires trial within a specified timeframe or that it can be evoked only after a speedy trial has been demanded by the accused. Within that relatively rigid framework the finding of the constitutional violation in this area has in the passed almost invariably turned on one of two considerations. Either that the delay in bringing the case to trial has been such as too presumptively or actually prejudiced the preparation of the defense of the case or that the delay has been a purpose for one by the prosecutor which was designed against some tactical advantage over the accused. Now in both of those situations the most basic notions of fundamental fairness dictate a dismissal of the indictment as the only effective remedy for enforcing the speedy trial right and that not surprisingly has hereto for been the uniform response to the finding of a denial of the constitutional right to a speedy trial. Last term, however, this Court in Barker versus Wingo at 407 U.S. examined the speedy trial guarantee in considerable detail and concluded that the right did not by nature land itself to any mechanical test for determining when it had been violated. Thus, the Court as Mr. Justice Brennan forecast in his concurring opinion in Dickey versus Florida, the Court announced a more flexible standard for ascertaining whether this fundamental right has been infringed in the circumstances of a particular case. A standard based on a careful and sensitive balance of four related factors: the length of the delay, the reason for the delay, the assertion by the defendant of his right to a speedy trial, and the prejudice resulting from the delay. And the Court of Appeals look to those factors in the present case and it found on a balanced of those factors that the 10-month delay here between indictment and trial was unconstitutional in the particular circumstances involved here. The counsel for petitioner has discussed those circumstances already and I don’t think there’s any need to go into them in any detail at this point. I think the important thing is that this pretrial delay is 10-month delay and this is agreed to, did not prejudice the defendant in the preparation of this defense in any way. There is no claim of personal prejudice such a loss of liberty or employment or financial resources and alike. Personal prejudice due to the pretrial incarceration because that incarceration was in the Nebraska State Penal Complex and it was solely related to this state conviction for he was serving a one to three-year sentence at that time. And it’s also not asserted that the pending federal indictment adversely affected the state confinement or caused him any mental anguish or anxiety that would accompanied public accusation because of the pending indictment. Rather the only prejudice claimed by petitioner and the only prejudice found by the Court of Appeals to have resulted from the pretrial delay depended on a concurrent sentence petitioner received following his direct conviction. Thus, on the basis of the sentence imposed by the federal judge after the direct conviction on hindsight this 10-month delay cause petitioner to lose time he was serving on his state sentence that would otherwise have run concurrently with the federal sentence. Now, if we accept the Court of Appeals decision that the proper balance for Strunk here on the issue of whether there was a violation, the remedy fashioned by the court which petitioner conceives fully cure the only prejudice suffered by crediting him with the time of pretrial incarceration between indictment and arraignment. That remedy we submit was entirely proper to the extent that the flexible standard announced by this Court in Barker versus Wingo permits a finding of a constitutional speedy trial violation on facts such as this. So to flexibility is needed in the remedy phase of the inquiry so that in appropriate cases the courts can tailor their relief to the infringement they find needs to be cured. And what the Court of Appeals did here was to device relief, less drastic than dismissal of the indictment. Relief which fully restored petitioner to the position he would have been in had there been no unreasonable pretrial delay. By giving petitioner credit on his federal sentence for his incarceration during the period of between indictment and arraignment the Court fashioned relief to vindicate the only interest of the accused that if found had been adversely effected by the Sixth Amendment violation. Moreover, this relief served far better than with dismissal of the indictment served the societal interest underlying the speedy trial provision. Public concern is with the effective prosecution of criminal cases with reasonable dispatch. Delays can often work to the Government’s disadvantage by reducing its capacity to try the -- to prove its case. Where however the prosecutions case remain unimpaired by the delay as here and where there’s been no prejudice to the accused in the sense of impairment of his defense or in the sense of personal prejudice due to pretrial incarceration or the public accusation that accompanies return of indictment, as again is the case here. Then society’s interest is generally best served by allowing the case to proceed to trial and letting the jury decide whether to acquit or convict. Now, there is the obvious exception where the prosecutor engages in purposeful delay to gain a tactical advantage. As Mr. Justice Harlan pointed out and noting such official misconduct in his dissenting opinion in Chapman versus United States at 386 and I quote, “Society can not tolerate giving final effect to a judgment tainted with such intentional misconduct.” But there’s no such official abuse of the criminal process involved in this case and as the societal interest in trying people accused of crime is served best not by granting petitioner immunization because of legal error but by fashioning a sentence as did the Court of Appeals to cure whatever possible prejudice he was caused by the unreasonable delay.
Potter Stewart: Mr. Reynolds, this -- what you’re saying is that very rational justification for the action of the Court of Appeals in this case but of course as Justice, my brother Brennan has indicated when we grant certiorari in a case genteelly under the -- if our rules were taken seriously its because the issue has emanations beyond the four corners of the particular case. And what I’m concern about is what sort of guidance does these give to District Courts in the future, to District Courts in the future. When a motion is filed to dismiss the indictment because of a denial of a speedy trial is a District Court to say “Yes, you have been denied at speedy but I’m not going to dismiss the indictment you have to go and be tried” that’s what you’re telling us.
William Bradford Reynolds: I’m -- I am saying Your Honor that in appropriate cases that may well be appropriate relief. I’m suggesting that just as this Court announced an ad hoc finding or ad hoc basis for looking at the speedy trial violation itself, that so too it’s appropriate to have the District Courts examine the various factors that we’re talking about -- that the Court was talking about in Barker versus Wingo.
Potter Stewart: Well, you can’t see all of those factors until after a trial and yet Barker against Wingo as you and I both know is at the basic remedy for denial of a speedy trial is not going to be any trial.
William Bradford Reynolds: Well, of course the determination in Barker versus Wingo is also before a trial. I mean that’s when those factors are examined by the District Courts and that’s when they apply those same factors. It was based on the --
Potter Stewart: I just read the motion here and I suppose it was prepared by the -- was it prepared pro se?
William Bradford Reynolds: I believe that was counsel, Your Honor.
Potter Stewart: Well, you say --
William Bradford Reynolds: It was prepared by counsel.
Potter Stewart: What I thought, maybe I think it was pres – prepared pros se was he said he didn’t have access to Smith against Hooey. Do you think that the counsel would have the United States have available somewhere the United States reports?
William Bradford Reynolds: It had been -- if this motion was prepared by a counsel.
Potter Stewart: By counsel. Yes, Mr. Wideikis.
William Bradford Reynolds: Yes, Your Honor.
Potter Stewart: But he sets out all sorts of reasons in support of his claim that to try this man would be to deny his right to a speedy trial and he asked that the indictment therefore be dismissed. Now on your rationalization, the District Court faced with that should say “Yes” and even if he agreed that to try him would be to deny his constitutional right to a speedy trial under your rationalization that District Court should nonetheless say “You’re going to be tried.” Now how can that be -- District Courts and Courts of Appeals in the country have to be guided by the decision of this Court. That’s one of this Court’s functions and what may be papered over in an individual case is to what the Court of Appeals may have done in an individual case. There’s something quite different from giving guidance to District Courts who were faced with motions to dismiss indictments by reason of a denial of a speedy trial. What do you propose that the District Court do?
William Bradford Reynolds: Your Honor, I think a district court is able to look at the various factors such as prejudice such as what the reasons for the delay was and including a personal prejudice as discussed in Marian and Wingo and to assess on the basis of what is claimed whether or not you can appropriately cure the prejudice by granting relief less drastic then dismissal that I think.
Potter Stewart: The denial was of a constitutional right and then you’re -- you have a right not to be tried except on a speedy trial. Isn’t that correct?
William Bradford Reynolds: That, that is correct.
Potter Stewart: And how can a district judge agreeing with the defendant’s claim that to try him would be a denial of a speedy trial, how can he deny the motion and that’s what your telling us he ought to do.
William Bradford Reynolds: Your Honor, I think that district judges often when you have a denial of a constitutional right allow a case to go to trial and they remedy it by other means. The exclusionary rule is one example where you have that.
Potter Stewart: Do you think double jeopardy would be the same that if a district judge agreed that to try her again would to be to put you twice in jeopardy, you should nonetheless let you be tried and see how it comes out?
William Bradford Reynolds: No because I think that you’re talking about the type of prejudice in that situation or right to counsel or coerce -- let me have exclude coerce confession because that’s a little different situation but there you’re talking about a situation where your prejudice is directly to whether or not the defendant can obtain a fair trial. And --
Potter Stewart: Although jeopardy has nothing to do with the fair trial at all.
William Bradford Reynolds: Well, it’s whether or not it would whether fundamental fairness would permit putting this man to trial a second time for the same offense. Now, I think that what we’re talking about here that there is no fundamental notion of fairness that would preclude trying this man if you can cure the only prejudice that he claims he suffered by giving him something less drastic than dismissal of the indictment.
Potter Stewart: I’m still puzzled as to what District Courts are going to do if your --
William Bradford Reynolds: But we’re not talking about some broad expensive exemption to the remedy of the dismissal. What we’re talking about is a case here that presents a factual situation permitting a remedy less drastic than dismissal. That there was formulated by the Court of Appeals then we think on this facts its justified we think that it may well be that in other cases it will be justified. As a general matter, probably in most situations you will have the type of prejudice to the defendant that will not permit the less drastic relief. But I think it’s for the District Court to assess in the same way that it has to make the ad hoc determination prior to trial on the basis of the factors announced in Wingo as to whether there is a speedy trial violation.
William J. Brennan, Jr.: Well, Mr. Reynolds, tell me what happens if a motion is made to dismiss the indictment in the grounds of denial of speedy trial? The Court concludes “yes” it’s been denied but will go to trial anyway and if you’re convicted what? Then they’re suppose -- the judge is suppose to take it into account in fixing sentence, is that it?
William Bradford Reynolds: No, Your Honor, what we are suggesting --
William J. Brennan, Jr.: Well, just take what’s likely to be ordinary situation. The claim has been this is before there’s been a trial that he’s been denied a speedy trial. The trial judge agrees, you have been denied a speedy trial but nevertheless go to trial. Now what is it -- in those circumstances where he tells him go ahead and go to trial and he is convicted then what’s the trial judge do?
William Bradford Reynolds: Well, I think that that would be impermissible under the rule that we’re suggesting here. What we’re doing is saying that the remedy is determined by the particular nature of the prejudice claimed and shown. Now, what, we’re not suggesting that this allowing District Courts to forget the jury at a speedy trial question although I think well --
William J. Brennan, Jr.: Well, what happen in my -- how in my situation I put this.
William Bradford Reynolds: Well I think the courts can --
William J. Brennan, Jr.: What can the district judge do?
William Bradford Reynolds: A district judge, just can I believe to further question of speedy trial until after trial if there’s some question on the prejudicial question that’s been done before and then rule it on there.
William J. Brennan, Jr.: I don’t know, I don’t know, but my hypothesis is if he finds there’s been a denial of speedy trial. Now what’s he supposed to do? This comes up on the motion to dismiss the indictment for denial of a speedy trial.
William Bradford Reynolds: And he does not feel that that they can be sure --
William J. Brennan, Jr.: An inside value have been denied a speedy trial but I think you’re going to trial anyway.
William Bradford Reynolds: But I’m going to disregard it. I think that would be an improper determination by the district judge.
William J. Brennan, Jr.: Well, let’s see. Is the Government’s position then in any instance where there’s a motion to dismiss the indictment based on the denial of a speedy trial and that district judge determines that there has been a denial of a speedy trial then he has no alternative except to dismiss.
William Bradford Reynolds: No, it’s relevant as to what the basis for the determination of a speedy trial violation is. Now, Barker and Wingo hadn’t required that you look to a set of factors.
William J. Brennan, Jr.: All right, let’s take this very case because in this case the indictment was not dismissed by the trial judge he went to trial for it.
William Bradford Reynolds: I think that the trial judge in this case could have affected the same remedy that the Court of Appeals did here.
William J. Brennan, Jr.: Well, he could have only done it though could he not by holding it there was no denial of speedy trial
William Bradford Reynolds: No, I think that he could have held that we will allow this case to go to trial. I find a constitutional violation but that violation can be fully cured by giving the petitioner here the defendant credit on whatever sentence he gets in the event of a conviction.
Warren E. Burger: I could understand Mr. Reynolds your position if your were saying that the district judge reach the conclusion that this is a very close question and I can’t -- he says to himself “I can’t decide it right now I’m going to let it go to trial and if I conclude that there was no denial that there was a problem about the case perhaps deal with this remedial device.” But if you have this remedial device as in automatic alternative, aren’t you going to have a lot of problems about deciding the basic constitutional question?
William Bradford Reynolds: Well that basic constitutional question is going to be decided the same way as this Court suggested in Barker versus Wingo.
Potter Stewart: Well, what is the constitutional right -- I’m sorry I apologize. You finish your answer then I’ll ask you.
William Bradford Reynolds: Well, I -- I think --
Potter Stewart: No, you finish I’ve interrupted you and I apologize.
William Bradford Reynolds: My answer is I think that the court just as a court if it finds a violation under the Forth Amendment that the District Court can cure that violation by excluding the evidence and allowing the case to go to trial. I think in this case, if the District Court had found on a balancing of the factors in Barker versus Wingo that the facts of this case may have a constitutional speedy trial violation.
Warren E. Burger: But that assumes that are multiple remedies for the denial of a speedy trial and not just one remedy.
William Bradford Reynolds: That’s right Your Honor appropriate cases there can be a remedy other than dismissal. And I think that -- I don’t think that there’s anything in the Constitution itself which says dismissal is the only remedy.
William J. Brennan, Jr.: But Mr. Reynolds what possible remedy can there be other than dismissal except some kind of amelioration of the penalty imposed if there’s a conviction. What possible, what other alternative is it?
William Bradford Reynolds: Well, here is a remedy that.
William J. Brennan, Jr.: Well I know but what -- take what’s going to be the usual situation not the peculiar facts of this case? The usual situation is going to be the one possibly stated by Mr. Stewart, isn’t it? Someone’s going to claim and he’s been denied a speedy trial. He’s going to make a motion to dismiss the indictment. That’s the usual case that’s going to come up.
William Bradford Reynolds: And there’s going to be a factual hearing on that on the basis.
William J. Brennan, Jr.: And there’s going to be determination for the denial of a speedy trial. Now what you’re saying to us is that, rather than a dismissal there may be some flexibility in the joints which will permit the court to say nevertheless go to trial. But what’s he is going to say to the defendant? “You’ve been denied your constitutional right to a speedy trial and I’m going to take care of it” how, if I’m not going to dismiss the indictment.
William Bradford Reynolds: In this case the court takes care of it. Well, it’s hard in the abstract to talk about this because I think you --
Byron R. White: Well, why don’t just say that the judge could say “there’s been no prejudice to your trial, to your defense but you’ve been denied the right to conquer it, and there’s been a denial. I’ll just give you a shorter sentence than I would have.” Why don’t you just say that? Is there something wrong with that?
William Bradford Reynolds: That’s what I’ve been trying to say but I understand Mr. Justice Brennan I was trying to get away from this case.
Potter Stewart: You can’t say that if the constitutional right is a right not be trialed, isn’t that correct?
William Bradford Reynolds: Well, I think that that’s if there is an -- if the speedy trial right means and absolutely nobody can be tried and there must be --
Potter Stewart: Except by -- except in a speedy trial and isn’t that the constitutional right the basic right and if it is what choice does the district judge have if he is convinced that too much time and pressures has taken place since the indictment except to dismiss if the right is a right not to be tried?
William Bradford Reynolds: But I don’t think Your Honor that the constitutional right is an absolute one that requires dismissal of the indictment whenever a violation is found.
Byron R. White: Well, Mr. Reynolds part of the purpose of the -- hasn’t the part of the purpose though have been defined to prevent oppressive incarceration.
William Bradford Reynolds: I think that that’s right, oppressive or undue pretrial incarceration.
Byron R. White: [Voice Overlap] is to prevent an unfair trial.
William Bradford Reynolds: That’s right but if you have near those situations in law.
Byron R. White: But what if you have one of them, oppressive incarceration but no proof of any prejudice to a fair trial?
William Bradford Reynolds: Well, I think in those circumstances if you have for example if you have a demand by the accused and it was not adhered to, the dismissal would be perhaps the appropriate remedy in that situation.
Warren E. Burger: Well, are you are saying that since the only prejudice that could conceivably result in a Smith-Hooey type or this type of case goes to the length of confinement that in that particular case, you carve out a special remedy and you deal with the delay by the special remedy, is that your argument?
William Bradford Reynolds: That – yes, Your Honor, that’s what we’re saying that in that factual situation that this remedy is an appropriate one and that it does cure the prejudice resulting from the delay.
Warren E. Burger: Perhaps, you can inherent in your position as the idea that there may be some delays which are not quite constitutional but ought to be remedied. Perhaps that’s inherent in your -- the facts of this case.
William Bradford Reynolds: Well we -- and that of course goes back to why we did present the argument of Mr. Justice Brennan that this factual situation was one where I think that prior to Barker versus Wingo that the courts would not have found a speedy trial violation on the facts of this case. I think that Barker versus Wingo added a great deal of flexibility in terms of what exactly was a speedy trial violation.
William J. Brennan, Jr.: It’s not, Mr. Reynolds, I forgot does your brief cite us any cases where there having been a finding of a denial of speedy trial. Any redress like except dismissal of the indictment as result.
William Bradford Reynolds: No Your Honor, it does not.
William J. Brennan, Jr.: This is the first time [Voice Overlap].
William Bradford Reynolds: I do not know of any and I think that at the Barker versus Wingo is one of the main reasons why we have this development.
William J. Brennan, Jr.: You know other things that concerns me is if what you’re proposing whether become the rule, what happens in the most in Metropolitan Districts where motions are heard by one judge and he finds a denial of a speedy trial but the trial itself was before another judge, he don’t have to sentence.
William Bradford Reynolds: I think that the -- if the judge who hears the motion for instance in this particular case had ordered that there would be credit given that the sentencing judge would have to adhere with that order.
William J. Brennan, Jr.: Would he be bound by order.
Thurgood Marshall: How could one judge give a motion by the trial judge?
William Bradford Reynolds: Well, because he’s ruled as matter of constitutional law that the way to redress the speedy trial violation and the only appropriate way is to give him credit on the sentence. Now, I think that ruling would be binding as a constitutional ruling. It will be binding on the trial judge, the same extent that a ruling for excluding evidence by one judge on a motion that would be binding on the trial judge who heard the trial.
Thurgood Marshall: So how different from interfering with a trial judge’s discretion to sentence. I don’t see how anybody can be clear with it.
William Bradford Reynolds: Well, I -- but I don’t think that, I think here you got a ruling --
Thurgood Marshall: I think the technicality of it, I just don’t I mean I just can’t --
William Bradford Reynolds: I think they would be bound by the prior constitutional ruling of district judge who heard the motion.
William H. Rehnquist: Can we really be sure that this remedy and right business is as watertight as some of the discussions indicated as a practical matter if the Seventh Circuit hadn’t thought it to had this discretion. Isn’t there some possibility that might have found there was no speedy trial violation?
William Bradford Reynolds: Well, it indicates that that’s one of the dangers that the courts are feeling that the remedy is so severe might be inclined not defined a speedy trial violation. And I think that the Court of Appeals faced with that possibility made a very conscientious and careful effort to deal with the subject in light of Barker and Wingo, and that with the new flexibility it did device a remedy which was warranted on the basis of the prejudice here. Thank you.
Warren E. Burger: Thank you Mr. Reynolds. Do you have in any further? Very well. The case is submitted.