concurring:
Appellant’s conviction at the conclusion of an initial trial was vacated by the presiding judge on the authority of Monroe v. United States, D.C.App., 389 A.2d 811 (1978) and Farrell v. United States, D.C.App., 391 A.2d 755 (1978). A second trial judge, on the eve of the new trial, dismissed the charges, finding a violation of the Due Process Clause. I concur in the view that this latter order of dismissal was error. My analysis of the case is similar to that expressed by Judge Nebeker but does not reach all the questions addressed in his opinion.
The Supreme Court, in United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977) stated that
[United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) ] makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.
Thus, a court, in considering a due process challenge to a prosecution, must identify actual prejudice to the accused and accompanying circumstances which strike at the fundamental fairness of the trial. Id.
In this instance the asserted defense was alibi. Notwithstanding the inability of some witnesses to recall a precise date, the record reveals that most were still able to testify respecting events in support of appellant’s alibi. As to this question, the trial judge concluded that since some witnesses “could no longer clearly remember the date in question” that appellant had sustained actual prejudice. Even allowing for the deference to be given to the trial court’s ruling, the record shows that the alibi defense is still available to appellant. Thus, there is a serious question, for me at least, as to whether appellant has shown prejudice sufficient to invoke the Due Process Clause.
A more important deficiency of the trial court’s order is to be found in the second step of the inquiry: “the reasons for the delay.” In addition to the delay caused by the order granting a new trial, the court referred to the nature of the identification evidence and the length of jury deliberation, as factors bearing on its decision. Remembering that this case was not dismissed for lack of a speedy trial, I do not think the court has articulated reasons — putting aside the strength or weakness of the prosecution’s case — which can be viewed as an infringement of due process.
In sum, even giving deference to the court’s finding of prejudice, I think it was error to dismiss the case in the absence of factors which eroded the fundamental fairness of the trial.