[3] FAHY, Senior Circuit Judge (dissenting):
The appeal is from convictions of two counts of assault with a dangerous weapon (22 D.C. Code § 502), one count of assault on a police officer with a dangerous weapon (22 D.C. Code § 505) and one count of assault on a federal officer ( 18 U.S.C. § 111). All the charges grew out of one incident, the resistance by appellant to the service upon him by a United States deputy marshal of an order of the Superior Court of the District of Columbia. The order directed appellant to restore a tenant to possession of an apartment in a building owned by appellant, and also enjoined him from evicting the tenant. Eviction had already been accomplished by appellant, however, several hours before the deputy marshal arrived.
I need not go into the full details of appellant's resistance but note now that his testimony concerning the incident and his bizarre behavior on several occasions prior to trial raise serious questions about his emotional stability, a factor the importance of which shall be developed.
Notwithstanding the convictions have substantial factual support I would order dismissal of the indictments on the ground that appellant was denied his right to a speedy trial.
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . .. " U.S. Const. amend. VI.
I
Thirty-five months elapsed between arrest, on August 24, 1970, and trial, on July 23, 1973. The trial, accordingly, was not speedy within the ordinary meaning of the language of the Constitution, and that meaning I think must be controlling absent reasons which the law can accept as justifying a different result. The District Court's own Rules contain the following pertinent provisions:
Appellanwas released on personal recognizance the day after his arrest. Significant to the examination hereinafter made of prejudice suffered by appellant, one of the conditions set out by the court in its release order dated August 25, 1970, was that he
undergo psychiatric treatment at VA Hospital and submit proof of such arrangements to the Bail Agency.
All indictments returned shall be tried within 180 days from return of indictment if the defendant is on bond . . . . The United States or the defendant may, for good cause shown, petition the judge to whom the case is assigned to extend the time period applicable to the particular case. In exceptional cases the court may, sua sponte, order an extension. (Rule 2-7(d)(1).)
None of these provisions was complied with. The indictment was returned October 9, 1970, and, as stated, the trial did not occur for nearly three years. The contrast between this Rule, which, even if dormant, at least sets a goal to be sought, and the course of this case, is striking.
In Barker v. Wingo, 407 U.S. 514, 530-532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court outlined the approach on a case by case basis for determining whether delay violates the constitutional right. The Court held that the most important factors to be balanced are (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant. These factors were to be considered upon the background of certain over-all principles applicable to the speedy trial problem. Thus,
In Barker v. Wingo the Court found that a delay of more than five years between arrest and trial for a brutal murder did not violate the Constitution. Two reasons were dominant. One was lack of significant prejudice to the accused; the other the Court's conclusion that the accused did not want a speedy trial, a compelling reason in the special circumstances relied upon by the Court.
A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, for the reasons earlier expressed, society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest . . . . [T]he rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial. (Footnotes omitted.)
Id. at 527 and 529, 92 S.Ct. at 2191.
The responsibility of the Government for expediting trials of accused was emphasized by this court in Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684, 687-688 (1966):
A number of recent decision by this court have dealt in a critical fashion with delays prior to trial. See, United States v. West, 504 F.2d 253 (D.C. Cir., 1974); United States v. Calloway, 505 F.2d 311 (1974); United States v. Dunn, 148 U.S.App.D.C. 91, 459 F.2d 1115 (1972); United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108 (1971); and Smith v. United States, 135 U.S.App.D.C. 284, 418 F.2d 1120 (1969).
. . . [T]he longer the time between arrest and trial, the heavier the burden of the Government in arguing that the right to a speedy trial has not been abridged.
* * * * * *
The passing of . . . a considerable length of time, no matter who is "at fault," should act as a spur to the Government to seek prompt trial.
II
Upon this background, and having in mind the four important factors pointed to in Barker v. Wingo, supra, later to be related more particularly to the facts of this case, I review the course of the proceedings following the arrest on August 24, 1970.
On November 6, 1970, appellant moved to suppress evidence. The motion was not acted upon until thirteen months later, December 1, 1971, when it was granted. This led to an interlocutory appeal by the United States, since the evidence was deemed essential to the prosecution. I shall return to the course of the interlocutory appeal. During the thirteen months while the motion to suppress was pending, at the court's suggestion based on appellant's behavior at a status hearing November 9, 1970, he was committed to St. Elizabeths Hospital for 60 days' observation of his mental condition.
At the hearing appellant acknowledged to Judge Corcoran that he had been under a doctor's care and added,
. . . I cannot afford to keep returning to this Court because the attorneys are very expensive and if I'm going to have a trial, I would either like to be tried, if something like that is necessary, for what I supposedly did. I don't know what that is. Or else, to dismiss the case because it appears to me that the attorneys are just feeding upon the crime which is being perpetuated and, apparently, with the aid of the so-called Court.
Following this colloquy Judge Corcoran stated that he would entertain a motion for a mental examination of appellant.
He was transferred, however, to a Veterans Administration institution where he had previously received psychiatric outpatient care.
He was adjudged competent to stand trial on January 22, 1971, and trial was set for March 31, 1971. The Government then moved again for another mental examination, but this motion was abandoned on the 22nd of March, 1971, because of opposition by defense counsel, and trial was reset for June 24, 1971. The case then appears to have been neglected by the prosecution and the court until October 21, 1971. Appellant was prepared for and requested trial that day. The trial date, however, was again postponed to December 1, 1971. On October 27, 1971, the court sua sponte ordered another mental examination, resulting in the doctor's report of November 15, 1971, that appellant was able to assist counsel in his defense.
Nothing appears of record during this period except the filing by appellant on June 16 of a notice of intention to rely on a defense of insanity, subsequently withdrawn.
On November 18, 1971, appellant moved for dismissal for lack of a speedy trial. This was fifteen months after arrest. The motion was denied April 17, 1972, five months after filing.
I return now to the granting, on December 1, 1971, of appellant's motion to suppress evidence, which led to an interlocutory appeal by the Government. The notice of appeal was marked filed on the 31st day after the date of the suppression order. If that date of filing was correct it was too late. Appellant moved in the District Court for dismissal of the appeal. Upon denial of the motion he moved for dismissal in this court. The problem was finally disposed of by this court June 26, 1972, when we held the notice had been filed within 30 days instead of 31 days, though marked filed on the 31st day. Our decision relied, inter alia, upon an affidavit filed by the Government to the effect the notice was actually lodged with the clerk on the 30th day. Five and a half months were thus consumed because of the delay in filing and the error in marking the filing date.
The merits of the suppression order were ready to be brought on for decision by this court June 26, 1972. A total of about 64 days extensions of time, of which the Government was responsible for more than half, were allowed for briefing, which was completed October 5, 1972. Yet this interlocutory appeal, during the pendency of which a trial waited, was not reached for argument in this court until March 13, 1973, 16 months after the appeal was noted and 31 months, lacking 11 days, after appellant's arrest.
Printing was not then completed but I do not understand that any of the subsequent delay in calendaring the case was due to that circumstance.
I interrupt the course of the proceedings now to point out that this court has since taken steps to avoid such delay. On January 25, 1974, the court ordered that such interlocutory appeals shall be expedited. The order includes a provision that,
The Clerk shall schedule the case for argument promptly after the briefs are filed.
On March 28, 1973, fifteen months after the District Court's suppression order, and 31 months after appellant's arrest, this court reversed the suppression order, and on April 13, 1973, returned the record to the District Court, the mandate following April 25. Several months were consumed by what may be considered reasonable institutional requirements, and the case was tried July 23, 1973, thirty-five months after arrest.
On May 30, 1973, when the July 23rd date was agreed upon, counsel for the accused, in response to the court's inquiry as to how long the case had been around, stated, "A long time, Your Honor — and I think the main point that Your Honor hasn't ruled on is the motion to dismiss on the ground that Mr. Rosenbloom hasn't had a speedy trial." The trial went forward, however, and was over in less than 24 hours of actual trial time.
It began at one minute to 2 p. m. on the 23rd and ended at 2:34 p. m. the next day, with several short recesses during the 24-hour period.
III
I turn now to consideration of the above course of proceedings under the four important factors to be balanced under Barker v. Wingo, supra.
The length of the delay, the first of these important factors, is inordinate considered alone. As to the second factor, appellant asserted his constitutional right four times. The first time was his own statement at the status hearing, November 9, 1970, see footnote 5, supra, that if he was going to be tried, "I would . . . like to be tried . . ." This statement in its context clearly indicated he would like to be tried quickly. The second time was October 21, 1971, at a hearing to reset the trial date, fourteen months after arrest. Appellant's counsel objected to failure to obtain a trial "today", complaining urgently of the delay and consequent prejudice of further delay because of difficulty in later obtaining the presence of an important eyewitness then available. The third time was the filing of his motion to dismiss November 18, 1971, fifteen months after arrest. During seven months of this period, as we have seen, from March 22, 1971, until October 21, 1971, the case apparently was neglected. He relied for the fourth time upon his constitutional right when the case was finally nearing trial in the spring and summer of 1973.
This court in the 1966 Hedgepeth case ( supra, 364 F.2d at 686) found that a delay of more than one year raises a speedy trial claim of prima facie merit.
See footnote 7, supra.
I defer further comment upon the reasons for the delay, the third factor, pending consideration of the fourth factor, the question of prejudice to the defendant.
Appellant's emotional condition was recognized by the prosecution and the District Court, as well as by his own counsel. It has a special relation to the prejudice he undoubtedly suffered during the three-year period before trial. The harm suffered by an accused because of extensive pretrial delays has been noted by the Supreme Court in several recent cases. In United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971), the Court stated that "major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense":
Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.
Id. This thought is repeated in Barker v. Wingo, supra, by Mr. Justice Powell, who stressed that,
. . . even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.
407 U.S. at 533, 92 S.Ct. at 2193. In Rosenbloom's case, I think the prejudice he experienced is expressed well in his written motion to dismiss, filed fifteen months after his arrest:
As stated in an earlier case, United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966), one of the recognized safeguards of the constitutional provision is "to minimize anxiety and concern accompanying public accusation." See also, Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), and Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).
. . . the Defendant who has a history of emotional problems suffered from great anxiety, several days before October 15, 1971 and upon hearing of a postponement of the trial suffered from extreme emotional distress and depression.
The anxiety and public accusation which the Defendant has undergone has created a situation where the Defendant's ability to defend himself has been permanently impaired. As a result of the extended time between the Defendant's arrest and his projected trial date, the Defendant has been denied his constitutional rights as provided
in the 6th Amendment of the United States Constitution.
This prejudice was aggravated by the twenty months' additional delay which followed. Whatever the reasons for it, the inordinate length cannot be ignored in appraising its effect upon appellant and his family:
. . . these provisions [speedy trial provisions and Rule 48(b) F.R.Crim.P.] seek to minimize the anxiety and attendant evils which are invariably visited upon one under public accusation but not tried . . . .
Hanrahan v. United States, 121 U.S.App.D.C. 134, 348 F.2d 363, 367 (1965). This is particularly true in the case of an unstable personality such as we have in this case. As the delay increased so we must in reason assume the prejudice increased; and of course the period of this personal prejudice must include the time consumed by the interlocutory appeal. Cf., Hedgepeth v. United States, supra, 364 F.2d at 688. The effect of the delay upon this appellant, whose mental condition seriously troubled both court and prosecution, is incalculable.
The reasons for the delay, the remaining important factor to be considered, appear from the description of the course of the proceedings which have been set forth. I can find only minor delay, such as the 30 days' extension of time to file his brief in the fall of 1972, on the interlocutory appeal of the Government from the suppression order of December 1, 1971, to be completely attributable to appellant, unless one is to consider the time consumed by mental examinations. The entire remainder I think is attributable either to the prosecution or to the operation of the system which has the responsibility of meeting its constitutional obligations to society and the accused person. The excessive time consumed in the operation of the system is noted in several stages of the proceedings. Thus, appellant's motion to suppress evidence, filed November 6, 1970, was not acted upon until December 1, 1971, thirteen months later. There was also the "blackout", as it were, of seven months after March 22, 1971, when the court set June 24 for the trial, which passed without further notice until it was called on October 21 and reset for trial December 1, 1971, when the motion to suppress was granted, leading to the pretrial appeal to this court. No reason at all appears for the eight months' gap between March 22, 1971, and December 1, 1971. And the long delay in disposition of the interlocutory appeal was in substantial degree due to the fact that the notice of appeal, though later held to have been filed on the last available day, was erroneously marked as filed one day too late, which led to the litigation over whether this court obtained jurisdiction. This phase of the appeal from the suppression order consumed five months.
IV
In connection with the interlocutory appeal I do not fail to note United States v. Bishton, 150 U.S.App.D.C. 51, 463 F.2d 887 (1972). After arrest in that case some twenty months elapsed before trial. Eight months had been consumed by an appeal of the Government to the District of Columbia Court of Appeals from dismissal by the then Court of General Sessions of an information grounded upon an inapplicable statute. In new proceedings, which later reached this court, Bishton contended he had been denied a speedy trial. We said:
Courts, of course, are not excluded from the obligation to give defendants a speedy trial. But the function of appellate courts necessarily casts the delay attendant upon their deliberations in a somewhat different light, and the time spent on appeals is not generally included for purposes of calculating the period of delay in prosecution. The right of the Government
to appeal decisions in the defendant's favor before jeopardy attaches is designed to protect the interest of society in lawfully prosecuting criminal offenders, and, while such an appeal is not at the defendant's instance, the fact that his is legally, albeit conditionally, a free man minimizes the oppressiveness of the attendant delay. (Footnote omitted.)
Id. at 890.
The Bishton case I think must now be considered with our subsequent affirmance of United States v. Perry, 353 F.Supp. 1235 (D.C.D.C. 1973). A considerable part of the delay in Perry was due, as in our case, to an interlocutory appeal. This court had affirmed, and remanded the case to the District Court, nearly three years after the arrest. On the remand Judge Hart (now Chief Judge of the District Court) pointed out that the case was in our court subject to opinion (not counting the delays permitted to the Government) for 7 1/2 months, and that the over-all time in the Court of Appeals was 20 months. He observed:
It is not for this Court to say whether this length of time is necessary for a decision on a Motion to Suppress in the Court of Appeals. The United States Attorney, as such, is not responsible, but the Government is.
It is likewise true that unnecessary delays in the Trial Court, while not the responsibility of the United States Attorney, as such, are the responsibility of the Government.
In this case there was no deliberate attempt by the Government to delay trial in order to hamper the defense. The Government's delay can fairly be attributable to the shortage in the United States Attorney's Office of experienced personnel, both in the Grand Jury and in the Appellate Sections.
Any delay in the Trial and Appellate Courts is fairly attributable to an overcrowded calendar.
But in Barker v. Wingo,
supra, the Supreme Court said that in weighing delay in trial, overcrowded Courts should be weighed less heavily (than Government's deliberate attempt to delay) "but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." The same reasoning applies to a shortage of personnel in the United States Attorney's Office.
Id. at 1238-1239.
As to some of the defendants who had been incarcerated for various periods of time, the judge noted:
These defendants, when not incarcerated, have still been disadvantaged by restraints on their liberty and by living under a cloud of anxiety, suspicion and hostility.
Id. at 1240. Judge Hart dismissed the indictment for lack of a speedy trial. We affirmed his decision by order. This post-Barker v. Wingo (June 22, 1972) action of our court is significant as to the treatment of delay due to a pretrial interlocutory appeal, and leads me to conclude that Bishton is not to be accorded the weight it otherwise would have for excluding consideration of time consumed by an interlocutory appeal. I think not only is the delay of the interlocutory appeal in Rosenbloom's case to be given weight in and of itself, but there is no possible way of avoiding its effect on the personal factor of prejudice.
Bishton was decided in April, 1972.
Indeed, Bishton itself qualified its position by stating "the time spent on appeals is not generally included for purposes of calculating the period of delay in prosecution," 463 F.2d at 890. We referred in a footnote to the American Bar Association Project on Minimum Standards of Criminal Justice, Standards Relating to Speedy Trial, which would exclude interlocutory appeals from computation of the time for trial. If by this it is meant that such time should be excluded in considering the issue of a speedy trial, it is I think a rigid position which cannot be reconciled with Barker v. Wingo or our affirmance of Perry. On that issue the delay to be considered cannot be limited to that which occurs in the District Court.
V
All factors considered I conclude the inordinate delay cannot be reconciled with the constitutional provision. It is worth noting that the judge who presided at the trial seemed to be troubled by the situation confronting him at sentencing. Notwithstanding the seriousness of the crimes of which appellant was convicted, the sentence imposed was only a fine of $1,000.00 and probation for two years, due no doubt to the court's concern as to appellant's responsibility, coupled with the suffering he had endured since his arrest. I would take the further step of deciding that the indictment should now be dismissed, to bring the situation into conformity with the opening lines of the Sixth Amendment.
I respectfully dissent from the court's affirmance of the convictions.