Brady v. State

Smith, J.,

dissenting:

I agree, as I must, that under Barker v. Wingo, 407 U.S. 514, 516, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), and our own cases of Brady v. State, 288 Md. 65, 415 A.2d 1126 (1980); Wilson v. State, 281 Md. 640, 644, 382 A.2d 1053, cert. denied, 439 U.S. 839 (1978); Jones v. State, 279 Md. 1, 6, 367 A.2d 1 (1976), cert. denied, 431 U.S. 915 (1977); Erbe v. State, 276 Md. 541, 546-47, 350 A.2d 640 (1976); Smith v. State, 276 Md. 521, 527-28, 350 A.2d 628 (1976); and Epps v. State, 276 Md. 96, 104-09, 345 A.2d 62 (1975), we must engage in a balancing test to determine whether or not Brady has been denied his right to a speedy trial. However, when I balance the factors here I reach the conclusion that Brady has not been denied a speedy trial. The four factors are: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Let us examine them.

*271a. Length of the delay

As the majority opinion correctly indicates, Brady was indicted by the Grand Jury for Anne Arundel County on August 22, 1977. The case was finally tried on August 8, 1978, a little less than a year later. It must be remembered that in Barker there was a delay of approximately five years between arrest and trial. The Court considered this "extraordinary,” but found it outweighed by other factors, holding there was no denial of the right of a speedy trial. In Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970), decided prior to Barker, Mr. Justice Brennan in a concurring opinion listed the four factors mentioned in Barker, saying that they "are often mentioned as the determinants of reasonableness.” It is of interest here that he noted, "The length of the delay, however, appears to be significant principally as it affects the legitimacy of the reasons for delay and the likelihood it had prejudicial effects.” 398 U.S. at 48, n. 12. In United States v. Spoonhunter, 476 F.2d 1050, 1057 (10th Cir. 1973), the Court said that "[t]he mere passage of time does not, per se, establish an unconstitutional denial of a right to speedy trial.”

b. Reason for the delay

I recognize that it would be nice if the State of Maryland could afford some type of computer system by which a prosecutor or police department could ascertain at any given time whether a specific individual is incarcerated at any place in the State of Maryland. This is not a perfect world. So far as I know no such system exists. The delay here purely and simply was brought about by the fact that Brady was in jail elsewhere on unrelated charges. In Barker the Court pointed out that although "[a] more neutral reason such as negligence or overcrowded courts should be weighed less heavily [than a deliberate attempt to delay the trial] but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Id. 407 U. S. at 531.

*272c. Assertion of the right

Brady came into the custody of the Anne Arundel County authorities on May 29 and asserted the right on June 9. Thus, he did in fact promptly assert the right.

d. Prejudice

In Barker the Court recognized three interests of defendants which should be considered in assessing prejudice to a defendant from delay: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired,” with the latter being "the most serious ... because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” 407 U.S. at 532.

The first interest obviously is not applicable here since Brady was incarcerated on this charge only from May 29 to August 8. For similar reasons there can be no contention of undue anxiety and concern of the accused. The majority opinion concedes that Brady’s trial counsel commented that "no claim is made” that the defense was in any manner impaired.

e. Balancing the factors

When one balances the factors here one notes that although the reason for the delay must go into the balance against the State, it is one the Supreme Court in Barker said should be weighed less heavily against the State than a deliberate attempt to delay the trial. I am not even sure that the circumstances of this delay rise to the level of negligence. I know of no requirement that the State must at all times have an instant inventory available for each prosecutor or sheriff reflecting all persons incarcerated in the State together with their location. However, the circumstances and the length of the delay do go into the scales against the State. Let it be noted again that the actual elapsed time *273between Brady’s passing into the custody of Anne Arundel County and trial was but seventy-one days, May 29 to August 8. The time from indictment to trial was not the fourteen months to which the majority opinion constantly refers, but eleven months and eighteen days. As previously noted, under the circumstances existing in Barker the Supreme Court did not regard a delay of approximately five years as a denial of a speedy trial.

When the majority examine prejudice they do their best to get actual prejudice into the scales on the side of Brady rather than presumed prejudice from the length of the delay. Let it ring loud and clear that in response to questions from the court to counsel for Brady as to whether "any of [his] witnesses [were] gone [or] dead” or otherwise "not available” or whether Brady had been unable "to obtain records” or "transcripts,” the attorney replied, "Not that we know of ....” He went on to say, "No claim is made to that point of prejudice.” He presumably was qualified to answer the questions and to make the statement. For the life of me I cannot see how one can find actual prejudice here. Although in the final analysis the majority says, "[W]e regard the effect of this element to be neutral,” I am unable in the light of this plain statement of counsel to comprehend -the majority’s statement, "[A] delay of this length and under these circumstances militates against the State’s assertion that there has been no impairment.”

All the majority really finds to place in the balance against the State is its failure to know that Brady was in custody. When one notes that no actual prejudice was shown in that Brady could have had no concerns relative to these charges so long as he did not know about them, that there is not the slightest sign here of an impairment of his defense, and that his actual pretrial incarceration on these charges was but seventy-one days, I do not see how one tips the balance in Brady’s favor. In this instance Brady was in the jail of a jurisdiction immediately adjoining Anne Arundel County, Baltimore City. Suppose, however, that the charge had been in Garrett County and that Brady had been incarcerated at the other end of the State, Somerset or *274Worcester County, for instance, would the decision here be the same? If so, are we now to understand that it is incumbent upon a sheriff possessed with a bench warrant for apprehension of an individual to make inquiry of each of the other twenty-three jurisdictions of the State as to whether by chance the accused could be residing in jail there? If not, within what radius must inquiry be made? It seems to me that the majority here in its disgust with the fact that we do not live in a perfect world where one may know at any given moment precisely who is incarcerated in Maryland has put its thumb on the scale on the side of the defendant in the balancing process. In my view this man was in no way denied a speedy trial. Hence, I would affirm.

I am authorized to state that Chief Judge Murphy and Judge Rodowsky concur in the views here expressed.