OCTOBER TERM, 1991
Syllabus
DOGGETT
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 90-857. Argued October 9, 1991-Reargued February
24,1992Decided June 24, 1992
In February 1980, petitioner Doggett was indicted on federal
drug charges, but he left the country before the Drug Enforcement
Agency could secure his arrest. The DEA knew that he was later
imprisoned in Panama, but after requesting that he be expelled back
to the United States, never followed up on his status. Once the DEA
discovered that he had left Panama for Colombia, it made no further
attempt to locate him. Thus, it was unaware that he reentered this
country in 1982 and subsequently married, earned a college degree,
found steady employment, lived openly under his own name, and
stayed within the law. The Marshal's Service eventually located him
during a simple credit check on individuals with outstanding
warrants. He was arrested in September 1988, 81/2 years after his
indictment. He moved to dismiss the indictment on the ground that
the Government's failure to prosecute him earlier violated his
Sixth Amendment right to a speedy trial, but the District Court
denied the motion, and he entered a conditional guilty plea. The
Court of Appeals affirmed.
Held: The delay between Doggett's indictment and arrest
violated his right to a speedy trial. His claim meets the
Barker v.
Wingo, 407 U. S. 514, 530,
criteria for evaluating speedy trial claims. First, the
extraordinary 81/2-year lag between his indictment and arrest
clearly suffices to trigger the speedy trial enquiry. Second, the
Government was to blame for the delay. The District Court's finding
that the Government was negligent in pursuing Doggett should be
viewed with considerable deference, and neither the Government nor
the record provides any reason to reject that finding. Third,
Doggett asserted in due course his right to a speedy trial. The
courts below found that he did not know of his indictment before
his arrest, and, in the factual basis supporting his guilty plea,
the Government essentially conceded this point. Finally, the
negligent delay between Doggett's indictment and arrest
presumptively prejudiced his ability to prepare an adequate
defense. The Government errs in arguing that the Speedy Trial
Clause does not significantly protect a defendant's interest in
fair adjudication.
United States v.
Marion, 404 U. S. 307, 320-323;
United States v.
MacDonald, 456 U. S. 1, 8;
United
States v.
Loud Hawk, 474 U. S. 302, 312,
distin-
648
guished. Nor does Doggett's failure to cite any specifically
demonstrable prejudice doom his claim, since excessive delay can
compromise a trial's reliability in unidentifiable ways.
Presumptive prejudice is part of the mix of relevant
Barker
factors and increases in importance with the length of the delay.
Here, the Government's egregious persistence in failing to
prosecute Doggett is sufficient to warrant granting relief. The
negligence caused delay six times as long as that generally deemed
sufficient to trigger judicial review, and the presumption of
prejudice is neither extenuated, as by Doggett's acquiescence, nor
persuasively rebutted. Pp.651-658.
906 F.2d
573, reversed and remanded.
SOUTER, J., delivered the opinion of the Court, in which WHITE,
BLACKMUN, STEVENS, and KENNEDY, JJ., joined. O'CONNOR, J., filed a
dissenting opinion,
post, p. 658. THOMAS, J., filed a
dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J.,
joined,
post, p. 659.
Wm. J. Sheppard reargued the cause for
petitioner. With him on the briefs was
Elizabeth L.
White.
Deputy Solicitor General Bryson reargued the cause for
the United States.
Assistant Attorney General Mueller argued
the cause for the United States on the original argument. With them
on the briefs were
Solicitor General Starr, Ronald J.
Mann, and
Patty Merkamp Stemler.
JUSTICE SOUTER delivered the opinion of the Court.
In this case we consider whether the delay of 81/2 years between
petitioner's indictment and arrest violated his Sixth Amendment
right to a speedy trial. We hold that it did.
I
On February 22, 1980, petitioner Marc Doggett was indicted for
conspiring with several others to import and distribute cocaine.
See 84 Stat. 1265, 1291, as amended, 21 U. S. C. §§ 846, 963.
Douglas Driver, the Drug Enforcement Administration's (DEA's)
principal agent investigating the conspiracy, told the United
States Marshal's Service that the DEA would oversee the
apprehension of Doggett and his confederates. On March 18, 1980,
two police officers set out
649
under Driver's orders to arrest Doggett at his parents' house in
Raleigh, North Carolina, only to find that he was not there. His
mother told the officers that he had left for Colombia four days
earlier.
To catch Doggett on his return to the United States, Driver sent
word of his outstanding arrest warrant to all United States Customs
stations and to a number of law enforcement organizations. He also
placed Doggett's name in the Treasury Enforcement Communication
System (TECS), a computer network that helps Customs agents screen
people entering the country, and in the National Crime Information
Center computer system, which serves similar ends. The TECS entry
expired that September, however, and Doggett's name vanished from
the system.
In September 1981, Driver found out that Doggett was under
arrest on drug charges in Panama and, thinking that a formal
extradition request would be futile, simply asked Panama to "expel"
Doggett to the United States. Although the Panamanian authorities
promised to comply when their own proceedings had run their course,
they freed Doggett the following July and let him go to Colombia,
where he stayed with an aunt for several months. On September 25,
1982, he passed unhindered through Customs in New York City and
settled down in Virginia. Since his return to the United States, he
has married, earned a college degree, found a steady job as a
computer operations manager, lived openly under his own name, and
stayed within the law.
Doggett's travels abroad had not wholly escaped the Government's
notice, however. In 1982, the American Embassy in Panama told the
State Department of his departure to Colombia, but that
information, for whatever reason, eluded the DEA, and Agent Driver
assumed for several years that his quarry was still serving time in
a Panamanian prison. Driver never asked DEA officials in Panama to
check into Doggett's status, and only after his own fortuitous
assignment to that country in 1985 did he discover Doggett's
depar-
650
ture for Colombia. Driver then simply assumed Doggett had
settled there, and he made no effort to find out for sure or to
track Doggett down, either abroad or in the United States. Thus
Doggett remained lost to the American criminal justice system until
September 1988, when the Marshal's Service ran a simple credit
check on several thousand people subject to outstanding arrest
warrants and, within minutes, found out where Doggett lived and
worked. On September 5, 1988, nearly 6 years after his return to
the United States and 81/2 years after his indictment, Doggett was
arrested.
He naturally moved to dismiss the indictment, arguing that the
Government's failure to prosecute him earlier violated his Sixth
Amendment right to a speedy trial. The Federal Magistrate hearing
his motion applied the criteria for assessing speedy trial claims
set out in
Barker v.
Wingo, 407 U. S. 514 (1972):
"[l]ength of delay, the reason for the delay, the defendant's
assertion of his right, and prejudice to the defendant."
Id., at 530 (footnote omitted). The Magistrate found that
the delay between Doggett's indictment and arrest was long enough
to be "presumptively prejudicial," Magistrate's Report, reprinted
at App. to Pet. for Cert. 2728, that the delay "clearly [was]
attributable to the negligence of the government,"
id., at
39, and that Doggett could not be faulted for any delay in
asserting his right to a speedy trial, there being no evidence that
he had known of the charges against him until his arrest,
id., at 42-44. The Magistrate also found, however, that
Doggett had made no affirmative showing that the delay had impaired
his ability to mount a successful defense or had otherwise
prejudiced him. In his recommendation to the District Court, the
Magistrate contended that this failure to demonstrate particular
prejudice sufficed to defeat Doggett's speedy trial claim.
The District Court took the recommendation and denied Doggett's
motion. Doggett then entered a conditional guilty plea under
Federal Rule of Criminal Procedure 11(a)(2),
651
expressly reserving the right to appeal his ensuing conviction
on the speedy trial claim.
A split panel of the Court of Appeals affirmed.
906 F.2d
573 (CAll 1990). Following Circuit precedent, see
Ringstaff v.
Howard, 885
F.2d 1542 (CAll 1989) (en bane), the court ruled that Doggett
could prevail only by proving "actual prejudice" or by establishing
that "the first three
Barker factors weigh[ed] heavily in
his favor." 906 F. 2d, at 582. The majority agreed with the
Magistrate that Doggett had not shown actual prejudice, and,
attributing the Government's delay to "negligence" rather than "bad
faith,"
id., at 578-579, it concluded that
Barker's
first three factors did not weigh so heavily against the Government
as to make proof of specific prejudice unnecessary. Judge Clark
dissented, arguing, among other things, that the majority had
placed undue emphasis on Doggett's inability to prove actual
prejudice.
We granted Doggett's petition for certiorari, 498 U. S. 1119
(1991), and now reverse.
II
The Sixth Amendment guarantees that, "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy ...
trial .... " On its face, the Speedy Trial Clause is written with
such breadth that, taken literally, it would forbid the government
to delay the trial of an "accused" for any reason at all. Our
cases, however, have qualified the literal sweep of the provision
by specifically recognizing the relevance of four separate
enquiries: whether delay before trial was uncommonly long, whether
the government or the criminal defendant is more to blame for that
delay, whether, in due course, the defendant asserted his right to
a speedy trial, and whether he suffered prejudice as the delay's
result. See
Barker, supra, at 530.
The first of these is actually a double enquiry. Simply to
trigger a speedy trial analysis, an accused must allege that the
interval between accusation and trial has crossed the
652
threshold dividing ordinary from "presumptively prejudicial"
delay, 407 U. S., at 530-531, since, by definition, he cannot
complain that the government has denied him a "speedy" trial if it
has, in fact, prosecuted his case with customary promptness. If the
accused makes this showing, the court must then consider, as one
factor among several, the extent to which the delay stretches
beyond the bare minimum needed to trigger judicial examination of
the claim. See
id., at 533-534. This latter enquiry is
significant to the speedy trial analysis because, as we discuss
below, the presumption that pretrial delay has prejudiced the
accused intensifies over time. In this case, the extraordinary
81h-year lag between Doggett's indictment and arrest clearly
suffices to trigger the speedy trial enquiry; 1 its further
significance within that enquiry will be dealt with later.
As for
Barker's second criterion, the Government claims
to have sought Doggett with diligence. The findings of the courts
below are to the contrary, however, and we review trial court
determinations of negligence with considerable deference. See
Cooter &
Gell v.
Hartmarx Corp., 496 U. S. 384, 402
(1990);
McAllister v.
United States, 348 U. S. 19, 20-22
(1954); 9 C. Wright & A. Miller, Federal Practice and Procedure
§ 2590 (1971). The Government gives us nothing to gainsay the
findings that have come up to us, and we see nothing fatal to them
in the record. For six years, the Government's investigators made
no serious effort to test their progressively more questionable
assumption that Doggett
1 Depending on the nature of the charges, the lower courts have
generally found postaccusation delay "presumptively prejudicial" at
least as it approaches one year. See 2 W. LaFave & J. Israel,
Criminal Procedure § 18.2, p. 405 (1984); Joseph, Speedy Trial
Rights in Application, 48 Ford. L. Rev. 611, 623, n. 71 (1980)
(citing cases). We note that, as the term is used in this threshold
context, "presumptive prejudice" does not necessarily indicate a
statistical probability of prejudice; it simply marks the point at
which courts deem the delay unreasonable enough to trigger the
Barker enquiry. Cf. Uviller,
Barker v.
Wingo:
Speedy Trial Gets a Fast Shuffle, 72 Colum. L. Rev. 1376, 1384-1385
(1972).
653
was living abroad, and, had they done so, they could have found
him within minutes. While the Government's lethargy may have
reflected no more than Doggett's relative unimportance in the world
of drug trafficking, it was still findable negligence, and the
finding stands.
The Government goes against the record again in suggesting that
Doggett knew of his indictment years before he was arrested. Were
this true,
Barker's third factor, concerning invocation of
the right to a speedy trial, would be weighed heavily against him.
But here again, the Government is trying to revisit the facts. At
the hearing on Doggett's speedy trial motion, it introduced no
evidence challenging the testimony of Doggett's wife, who said that
she did not know of the charges until his arrest, and of his
mother, who claimed not to have told him or anyone else that the
police had come looking for him. From this the Magistrate
implicitly concluded, Magistrate's Report, reprinted at App. to
Pet. for Cert. 42-44, and the Court of Appeals expressly
reaffirmed, 906 F. 2d, at 579-580, that Doggett had won the
evidentiary battle on this point. Not only that, but in the factual
basis supporting Doggett's guilty plea, the Government explicitly
conceded that it had
"no information that Doggett was aware of the indictment before
he left the United States in March 1980, or prior to his arrest.
His mother testified at the suppression hearing that she never told
him, and Barnes and Riddle [Doggett's confederates] state they did
not have contact with him after their arrest [in 1980]." 2 Record,
Exh. 63, p. 2.
While one of the Government's lawyers later expressed amazement
that "that particular stipulation is in the factual basis," Tr. 13
(Mar. 31, 1989), he could not make it go away, and the trial and
appellate courts were entitled to accept the defense's unrebutted
and largely substantiated claim of
654
Doggett's ignorance. Thus, Doggett is not to be taxed for
invoking his speedy trial right only after his arrest.
III
The Government is left, then, with its principal contention:
that Doggett fails to make out a successful speedy trial claim
because he has not shown precisely how he was prejudiced by the
delay between his indictment and trial.
A
We have observed in prior cases that unreasonable delay between
formal accusation and trial threatens to produce more than one sort
of harm, including "oppressive pretrial incarceration," "anxiety
and concern of the accused," and "the possibility that the
[accused's] defense will be impaired" by dimming memories and loss
of exculpatory evidence.
Barker, 407 U. S., at 532; see also
Smith v.
Hooey, 393 U. S. 374,377-379
(1969);
United States v.
Ewell, 383 U. S. 116, 120
(1966). Of these forms of prejudice, "the most serious is the last,
because the inability of a defendant adequately to prepare his case
skews the fairness of the entire system." 407 U. S., at 532.
Doggett claims this kind of prejudice, and there is probably no
other kind that he can claim, since he was subjected neither to
pretrial detention nor, he has successfully contended, to awareness
of unresolved charges against him.
The Government answers Doggett's claim by citing language in
three cases,
United States v.
Marion, 404 U. S. 307, 320-323
(1971),
United States v.
MacDonald, 456 U. S. 1, 8 (1982), and
United States v.
Loud Hawk, 474 U. S. 302, 312
(1986), for the proposition that the Speedy Trial Clause does not
significantly protect a criminal defendant's interest in fair
adjudication. In so arguing, the Government asks us, in effect, to
read part of
Barker right out of the law, and that we will
not do. In context, the cited passages support nothing beyond the
principle, which we have independently
655
based on textual and historical grounds, see
Marion,
supra, at 313-320, that the Sixth Amendment right of the
accused to a speedy trial has no application beyond the confines of
a formal criminal prosecution. Once triggered by arrest,
indictment, or other official accusation, however, the speedy trial
enquiry must weigh the effect of delay on the accused's defense
just as it has to weigh any other form of prejudice that
Barker recognized.2 See
Moore v.
Arizona,
414 U. S. 25,
26-27, and n. 2 (1973);
Barker, supra, at 532;
Smith,
supra, at 377-379;
Ewell, supra, at 120.
As an alternative to limiting
Barker, the Government
claims Doggett has failed to make any affirmative showing that the
delay weakened his ability to raise specific defenses, elicit
specific testimony, or produce specific items of evidence. Though
Doggett did indeed come up short in this respect, the Government's
argument takes it only so far: consideration of prejudice is not
limited to the specifically demonstrable, and, as it concedes,
Brief for United States 28, n. 21; Tr. of Oral Arg. 28-34 (Feb. 24,
1992), affirmative proof of particularized prejudice is not
essential to every speedy trial claim. See
Moore, supra, at
26;
Barker, supra, at 533.
Barker explicitly
recognized that impairment of one's defense is the most difficult
form of speedy trial prejudice to prove because time's erosion of
exculpatory evidence and testimony "can rarely be shown." 407 U.
S., at 532. And though time can tilt the case against either side,
see
id., at
521; Loud Hawk, supra, at 315, one cannot
generally be sure which of them it has prejudiced more severely.
Thus, we generally have to recognize that excessive delay
presumptively compromises the reliability of a trial in ways that
neither party can prove or, for that matter, identify. While
2 Thus, we reject the Government's argument that the effect of
delay on adjudicative accuracy is exclusively a matter for
consideration under the Due Process Clause. We leave intact our
earlier observation, see
United States v.
MacDonald,
456 U. S. 1, 7
(1982), that a defendant may invoke due process to challenge delay
both before and after official accusation.
656
such presumptive prejudice cannot alone carry a Sixth Amendment
claim without regard to the other
Barker criteria, see
Loud Hawk, supra, at 315, it is part of the mix of relevant
facts, and its importance increases with the length of delay.
B
This brings us to an enquiry into the role that presumptive
prejudice should play in the disposition of Doggett's speedy trial
claim. We begin with hypothetical and somewhat easier cases and
work our way to this one.
Our speedy trial standards recognize that pretrial delay is
often both inevitable and wholly justifiable. The government may
need time to collect witnesses against the accused, oppose his
pretrial motions, or, if he goes into hiding, track him down. We
attach great weight to such considerations when balancing them
against the costs of going forward with a trial whose probative
accuracy the passage of time has begun by degrees to throw into
question. See
Loud Hawk, supra, at 315-317. Thus, in this
case, if the Government had pursued Doggett with reasonable
diligence from his indictment to his arrest, his speedy trial claim
would fail. Indeed, that conclusion would generally follow as a
matter of course however great the delay, so long as Doggett could
not show specific prejudice to his defense.
The Government concedes, on the other hand, that Doggett would
prevail if he could show that the Government had intentionally held
back in its prosecution of him to gain some impermissible advantage
at trial. See Brief for United States 28, n. 21; Tr. of Oral Arg.
28-34 (Feb. 24, 1992). That we cannot doubt.
Barker stressed
that official bad faith in causing delay will be weighed heavily
against the government, 407 U. S., at 531, and a bad-faith delay
the length of this negligent one would present an overwhelming case
for dismissal.
Between diligent prosecution and bad-faith delay, official
negligence in bringing an accused to trial occupies the mid-
657
dIe ground. While not compelling relief in every case where
bad-faith delay would make relief virtually automatic, neither is
negligence automatically tolerable simply because the accused
cannot demonstrate exactly how it has prejudiced him. I t was on
this point that the Court of Appeals erred, and on the facts before
us, it was reversible error.
Barker made it clear that "different weights [are to be]
assigned to different reasons" for delay.
Ibid. Although
negligence is obviously to be weighed more lightly than a
deliberate intent to harm the accused's defense, it still falls on
the wrong side of the divide between acceptable and unacceptable
reasons for delaying a criminal prosecution once it has begun. And
such is the nature of the prejudice presumed that the weight we
assign to official negligence compounds over time as the
presumption of evidentiary prejudice grows. Thus, our toleration of
such negligence varies inversely with its protractedness, cf.
Arizona v.
Youngblood, 488 U. S. 51 (1988), and
its consequent threat to the fairness of the accused's trial.
Condoning prolonged and unjustifiable delays in prosecution would
both penalize many defendants for the state's fault and simply
encourage the government to gamble with the interests of criminal
suspects assigned a low prosecutorial priority. The Government,
indeed, can hardly complain too loudly, for persistent neglect in
concluding a criminal prosecution indicates an uncommonly feeble
interest in bringing an accused to justice; the more weight the
Government attaches to securing a conviction, the harder it will
try to get it.
To be sure, to warrant granting relief, negligence unaccompanied
by particularized trial prejudice must have lasted longer than
negligence demonstrably causing such prejudice. But even so, the
Government's egregious persistence in failing to prosecute Doggett
is clearly sufficient. The lag between Doggett's indictment and
arrest was 81/2 years, and he would have faced trial 6 years
earlier than he did but for the Government's inexcusable
oversights. The portion of the
658
delay attributable to the Government's negligence far exceeds
the threshold needed to state a speedy trial claim; indeed, we have
called shorter delays "extraordinary." See
Barker, supra, at
533. When the Government's negligence thus causes delay six times
as long as that generally sufficient to trigger judicial review,
see n. 1,
supra, and when the presumption of prejudice,
albeit unspecified, is neither extenuated,3 as by the defendant's
acquiescence,
e. g., 407 U. S., at 534-536,
nor persuasively rebutted,4 the defendant is entitled to
relief.
IV
We reverse the judgment of the Court of Appeals and remand the
case for proceedings consistent with this opinion.
So ordered.
JUSTICE O'CONNOR, dissenting.
I believe the Court of Appeals properly balanced the
considerations set forth in
Barker v.
Wingo, 407 U. S. 514 (1972).
Although the delay between indictment and trial was lengthy,
petitioner did not suffer any anxiety or restriction on his
liberty. The only harm to petitioner from the lapse
3 Citing
United States v.
Broce, 488 U. S. 563, 569
(1989), the Government argues that, by pleading guilty, Doggett
waived any right to claim that the delay would have prejudiced him
had he gone to trial. Brief for United States 30. Yet Doggett did
not sign a guilty plea
simpliciter, but a conditional guilty
plea under Federal Rule of Criminal Procedure 11(a)(2), thereby
securing the Government's explicit consent to his reservation of
"the right to appeal the adverse Court ruling on his Motion to
Dismiss for violation of Constitutional Speedy Trial provisions
based upon post-indictment delay." Plea Agreement, 2 Record, Exh.
66, p. 1. One cannot reasonably construe this agreement to bar
Doggett from pursuing as effective an appeal as he could have
raised had he not pleaded guilty.
4 While the Government ably counters Doggett's efforts to
demonstrate particularized trial prejudice, it has not, and
probably could not have, affirmatively proved that the delay left
his ability to defend himself unimpaired. Cf. Uviller, 72 Colum. L.
Rev., at 1394-1395.
659
of time was potential prejudice to his ability to defend his
case. We have not allowed such speculative harm to tip the scales.
Instead, we have required a showing of actual prejudice to the
defense before weighing it in the balance. As we stated in
United States v.
Loud Hawk, 474 U. S. 302, 315
(1986), the "possibility of prejudice is not sufficient to support
respondents' position that their speedy trial rights were violated.
In this case, moreover, delay is a two-edged sword. It is the
Government that bears the burden of proving its case beyond a
reasonable doubt. The passage of time may make it difficult or
impossible for the Government to carry this burden." The Court of
Appeals followed this holding, and I believe we should as well. For
this reason, I respectfully dissent.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join, dissenting.
Just as "bad facts make bad law," so too odd facts make odd law.
Doggett's 81h-year odyssey from youthful drug dealing in the
tobacco country of North Carolina, through stints in a Panamanian
jail and in Colombia, to life as a computer operations manager,
homeowner, and registered voter in suburban Virginia is
extraordinary. But even more extraordinary is the Court's
conclusion that the Government denied Doggett his Sixth Amendment
right to a speedy trial despite the fact that he has suffered none
of the harms that the right was designed to prevent. I respectfully
dissent.
I
We have long identified the "major evils" against which the
Speedy Trial Clause is directed as "undue and oppressive
incarceration" and the "anxiety and concern accompanying public
accusation."
United States v.
Marion, 404 U. S. 307, 320
(1971). The Court does not, and cannot, seriously dispute that
those two concerns lie at the heart of the Clause, and that neither
concern is implicated here. Doggett was
660
neither in United States custody nor subject to bail during the
entire 81h-year period at issue. Indeed, as this case comes to us,
we must assume that he was blissfully unaware of his indictment all
the while, and thus was not subject to the anxiety or humiliation
that typically accompanies a known criminal charge.
Thus, this unusual case presents the question whether,
independent of these core concerns, the Speedy Trial Clause
protects an accused from two additional harms: (1) prejudice to his
ability to defend himself caused by the passage of time; and (2)
disruption of his life years after the alleged commission of his
crime. The Court today proclaims that the first of these additional
harms is indeed an independent concern of the Clause, and on that
basis compels reversal of Doggett's conviction and outright
dismissal of the indictment against him. As to the second of these
harms, the Court remains mum-despite the fact that we requested
supplemental briefing on this very point.1
I disagree with the Court's analysis. In my view, the Sixth
Amendment's speedy trial guarantee does not provide independent
protection against either prejudice to an accused's defense or the
disruption of his life. I shall consider each in turn.
A
As we have explained, "the Speedy Trial Clause's core concern is
impairment of
liberty." United States v.
Loud Hawk,
474 U. S. 302,
312 (1986) (emphasis added). Whenever a criminal trial takes place
long after the events at issue, the defendant may be prejudiced in
any number of ways. But "[t]he Speedy Trial Clause does not purport
to
1 See 502 U. S. 976 (1991) (directing the parties to brief the
question "whether the history of the Speedy Trial Clause of the
Sixth Amendment supports the view that the Clause protects a right
of citizens to repose, free from the fear of secret or unknown
indictments for past crimes, independent of any interest in
preventing lengthy pretrial incarceration or prejudice to the case
of a criminal defendant").
661
protect a defendant from all effects flowing from a delay before
trial."
Id., at 311. The Clause is directed not generally
against delay-related prejudice, but against delayrelated prejudice
to a defendant's liberty. "The speedy trial guarantee is designed
to minimize the possibility of lengthy incarceration prior to
trial, to reduce the lesser, but nevertheless substantial,
impairment of liberty imposed on an accused while released on bail,
and to shorten the disruption of life caused by arrest and the
presence of unresolved criminal charges."
United States v.
MacDonald, 456
U. S. 1,8 (1982). Thus, "when defendants are not incarcerated
or subjected to other substantial restrictions on their liberty, a
court should not weigh that time towards a claim under the Speedy
Trial Clause."
Loud Hawk, supra, at 312.
A lengthy pretrial delay, of course, may prejudice an accused's
ability to defend himself. But, we have explained, prejudice to the
defense is not the sort of impairment of liberty against which the
Clause is directed. "Passage of time, whether before or after
arrest, may impair memories, cause evidence to be lost, deprive the
defendant of witnesses, and otherwise interfere with his ability to
defend himself.
But this possibility of prejudice at
trial is not itself sufficient reason to wrench the Sixth Amendment
from its proper context." Marion, supra, at 321-322 (footnote
omitted; emphasis added). Even though a defendant may be prejudiced
by a pretrial delay, and even though the government may be unable
to provide a valid justification for that delay, the Clause does
not come into play unless the delay impairs the defendant's
liberty. "Inordinate delay ... may impair a defendant's ability to
present an effective defense. But the major evils protected against
by the speedy trial guarantee exist
quite apart from actual
or possible prejudice to an accused's defense." 404 U. S., at 320
(emphasis added).
These explanations notwithstanding, we have on occasion
identified the prevention of prejudice to the defense as an
independent and fundamental objective of the Speedy Trial
662
Clause. In particular, in
Barker v.
Wingo,
407 U. S. 514,
532 (1972), we asserted that the Clause was "designed to protect"
three basic interests: "(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." See also
Smith v.
Hooey, 393 U. S. 374, 377-378
(1969); United States v.
Ewell, 383 U. S. 116, 120
(1966). Indeed, the
Barker Court went so far as to declare
that of these three interests, "the most serious is the last,
because the inability of a defendant adequately to prepare his case
skews the fairness of the entire system." 407 U. S., at 532.
We are thus confronted with two conflicting lines of authority,
the one declaring that "limit[ing] the possibility that the defense
will be impaired" is an independent and fundamental objective of
the Speedy Trial Clause,
e. g., Barker, supra, at 532, and
the other declaring that it is not,
e. g., Marion, 404 U. S. 307 (1971);
MacDonald, supra; Loud Hawk, supra. The Court refuses to
acknowledge this conflict. Instead, it simply reiterates the
relevant language from
Barker and asserts that
Marion,
MacDonald, and
Loud Hawk "support nothing beyond the
principle ... that the Sixth Amendment right of the accused to a
speedy trial has no application beyond the confines of a formal
criminal prosecution."
Ante, at 654-655. That attempt at
reconciliation is eminently unpersuasive.
It is true, of course, that the Speedy Trial Clause by its terms
applies only to an "accused"; the right does not attach before
indictment or arrest. See
Marion, supra, at 313-315,
320-322; Dillingham v.
United States, 423 U. S. 64, 64-65
(1975) (per curiam). But that limitation on the
Clause's protection only confirms that preventing prejudice to the
defense is not one of its independent and fundamental objectives.
For prejudice to the defense stems from the interval between
crime and trial, which is quite distinct from the interval
between
accusation and trial. If the Clause were in-
663
deed aimed at safeguarding against prejudice to the defense,
then it would presumably limit
all prosecutions that occur
long after the criminal events at issue. A defendant prosecuted 10
years after a crime is just as hampered in his ability to defend
himself whether he was indicted the week after the crime or the
week before the trial-but no one would suggest that the Clause
protects him in the latter situation, where the delay did not
substantially impair his liberty, either through oppressive
incarceration or the anxiety of known criminal charges. Thus, while
the Court is correct to observe that the defendants in
Marion,
MacDonald, and
Loud Hawk were not subject to formal
criminal prosecution during the lengthy period of delay prior to
their trials, that observation misses the point of those cases.
With respect to the relevant consideration-the
defendants'
ability to defend themselves despite the passage of time-they
were in precisely the same situation as a defendant who had long
since been indicted. The initiation of a formal criminal
prosecution is simply irrelevant to whether the defense has been
prejudiced by delay.
Although being an "accused" is necessary to trigger the Clause's
protection, it is not sufficient to do so. The touchstone of the
speedy trial right, after all, is the substantial deprivation of
liberty that typically accompanies an "accusation,"
not the
accusation itself. That explains why a person who has been arrested
but not indicted is entitled to the protection of the Clause, see
Dillingham, supra, even though technically he has not been
"accused" at alP And it ex-
2 In this regard, it is instructive to compare the Sixth
Amendment's speedy trial right to its right to counsel, which also
applies only to an "accused." The right to counsel, we have held,
does not attach until '''at or after the initiation of adversary
judicial criminal proceedings-whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.'''
United States v.
Gouveia, 467 U. S. 180, 188 (1984)
(quoting
Kirby v.
Illinois, 406 U. S. 682, 689 (1972)
(plurality opinion)). In
664
plains why the lower courts consistently have held that, with
respect to sealed (and hence secret) indictments, the protections
of the Speedy Trial Clause are triggered
not when the
indictment is
filed, but when it is
unsealed. See,
e. g., United States v.
Watson,
599 F.2d
1149, 1156-1157, and n. 5 (CA2 1979), modified on other grounds
sub nom. United States v.
Muse, 633
F.2d 1041 (CA2 1980) (en bane);
United States v.
Hay, 527 F.2d
990, 994, and n. 4 (CAlO 1975); cf.
United States v.
Lewis, 907 F.2d
773, 774, n. 3 (CA8 1990).
It is misleading, then, for the Court to accuse the Government
of "ask[ing] us, in effect, to read part of
Barker right out
of the law,"
ante, at 654, a course the Court resolutely
rejects. For the issue here is not simply whether the relevant
language from
Barker should be read out of the law, but
whether that language trumps the contrary logic of
Marion,
MacDonald, and
Loud Hawk. The Court's protestations
notwithstanding, the two lines of authority cannot be reconciled;
to reaffirm the one is to undercut the other.
In my view, the choice presented is not a hard one.
Barker's suggestion that preventing prejudice to the defense
is a fundamental and independent objective of the Clause is plainly
dictum. Never, until today, have we confronted a case where a
defendant subjected to a lengthy delay after indictment nonetheless
failed to suffer any substantial impairment of his liberty. I think
it fair to say that
Barker simply did not contemplate such
an unusual situation. Moreover, to the extent that the
Barker dictum purports to elevate considerations of
prejudice to the defense to fundamental and independent status
under the Clause, it cannot be
other words, for purposes of the right to counsel, an "accused"
must
in fact be accused of a crime; unlike the speedy trial
right, it does
not attach upon arrest. See,
e. g.,
Gouveia, supra, at 189-190;
McNeil v.
Wisconsin,
501 U. S. 171,
175-176 (1991).
665
deemed to have survived our subsequent decisions in
MacDonald and
Loud Hawk.3
Just because the Speedy Trial Clause does not independently
protect against prejudice to the defense does not, of course, mean
that a defendant is utterly unprotected in this regard. To the
contrary, "'the applicable statute of limitations ... is ... the
primary guarantee against bringing overly stale criminal charges,'"
Marion, 404 U. S., at 322 (quoting
Ewell, 383 U. S.,
at 122). These statutes "represent legislative assessments of
relative interests of the State and the defendant in administering
and receiving justice; they 'are made for the repose of society and
the protection of those who may [during the limitation] ... have
lost their means of defence.'" 404 U. S., at 322 (quoting
Public
Schools v.
Walker, 9 Wall. 282, 288 (1870)). Because
such statutes are fixed by the legislature and not decreed by
3 Our summary reversal in
Moore v.
Arizona,
414 U. S. 25
(1973)
(per curiam), is not to the contrary. The petitioner
there was tried for murder in Arizona "[a]lmost three years after
he was charged and 28 months after he first demanded that Arizona
either extradite him from California, where he was serving a prison
term, or drop a detainer against him."
Ibid. The Arizona
Supreme Court denied him speedy trial relief on the ground that "a
showing of prejudice to the defense at trial was essential to
establish a federal speedy trial claim."
Ibid. We rejected
that reasoning, emphasizing the contextual nature of the speedy
trial analysis set forth in
Barker v.
Wingo, 407 U. S. 514 (1972).
To hold that a speedy trial claim can succeed without a showing
of actual trial prejudice is not, of course, to hold that such a
claim can succeed without a showing of
any prejudice at all.
Moore, like
Barker, is clearly premised on the
assumption that the defendant invoking the protection of the Speedy
Trial Clause has been subjected to the evils against which the
Clause was designed to protect. Indeed,
Moore makes this
assumption quite explicit, observing that prejudice is "'inevitably
present in every case to some extent,jor
every defendant will
either be incarcerated pending trial or on bail subject to
substantial restrictions on his liberty.''' Moore, supra, at 27
(quoting
Barker, supra, at 537 (WHITE, J., concurring))
(emphasis added). While accurate in the vast majority of cases,
that observation is not inevitably true-as this case shows.
666
courts on an ad hoc basis, they "provide predictability by
specifying a limit beyond which there is an irrebuttable
presumption that a defendant's right to a fair trial would be
prejudiced." 404 U. S., at 322.
Furthermore, the Due Process Clause always protects defendants
against fundamentally unfair treatment by the government in
criminal proceedings. See
United States v.
Lovasco,
431 U. S. 783
(1977). As we explained in
Marion, "the Due Process Clause
... would require dismissal of [an] indictment if it were shown at
trial that [a] delay ... caused substantial prejudice to [a
defendant's] rights to a fair trial and that the delay was an
intentional device to gain tactical advantage over the accused."
404 U. S., at 324. See also
MacDonald, 456 U. S., at 8 ("The
Sixth Amendment right to a speedy trial is ... not primarily
intended to prevent prejudice to the defense caused by passage of
time; that interest is protected primarily by the Due Process
Clause and by statutes of limitations").4
4 The result in the case may well be explained by an improvident
concession. While the United States argued essentially that a
defendant's speedy trial rights cannot be violated where he is
neither incarcerated nor subject to the anxiety of known criminal
charges, it did not claim that this was invariably so. Instead, the
United States conceded that a defendant whose liberty was in no way
impaired by a pretrial delay could nevertheless succeed in a speedy
trial claim if the government had intentionally caused the delay
for the specific purpose of prejudicing the defense or injuring the
defendant in some other significant way. The defendant in
this case is not entitled to relief, the United States
asserts, because the delay in bringing him to trial was, at worst,
caused by negligence.
Not surprisingly, the Court seizes on this concession with
relish. See
ante, at 655, 656 (citing Brief for United
States 28, n. 21, Tr. of Oral Arg. 28-34 (Feb. 24, 1992)). For if
defendants can bring successful speedy trial claims even though
they have not been "incarcerated or subjected to other substantial
restrictions on their liberty,"
United States v.
Loud
Hawk, 474 U. S. 302, 312 (1986), then the Clause's protections
necessarily extend beyond those core concerns. If the Clause does
not protect a defendant whose liberty has not been impaired by a
delay, then it simply does not protect him; its protections cannot
be triggered solely by the government's bad motives. The Speedy
Trial Clause provides no basis for the line the United States
advances between negligent governmental conduct, on the
667
Therefore, I see no basis for the Court's conclusion that
Doggett is entitled to relief under the Speedy Trial Clause
simply because the Government was negligent in prosecuting
him and because the resulting delay may have prejudiced his
defense.
B
It remains to be considered, however, whether Doggett is
entitled to relief under the Speedy Trial Clause because of the
disruption of his life years after the criminal events at issue. In
other words, does the Clause protect a right to repose, free from
secret or unknown indictments? In my view, it does not, for much
the same reasons set forth above.
The common law recognized no right of criminals to repose. "The
maxim of our law has always been 'Nullum tempus occurrit regi,'
['time does not run against the king'], and as a criminal trial is
regarded as an action by the king, it follows that it may be
brought at any time." 2 J. Stephen, A History of the Criminal Law
of England 1, 2 (1883) (noting examples of delays in prosecution
ranging from 14 to 35 years). See also F. Wharton, Criminal
Pleading and Prac-
one hand, and bad-faith conduct, on the other. As noted in text,
the
Due Process Clause is the proper recourse for an
accused whose defense is materially prejudiced by bad-faith
governmental behavior. See
United States v.
Lovasco,
431 U. S. 783
(1977); cf.
Arizona v.
Youngblood, 488 U. S. 51 (1988).
The Court, thus, is certainly entitled to decide
this
particular case adversely to the United States on the ground
that the concession undercut the Government's entire argument. But
the Court goes much further. It affirmatively endorses the point
conceded, thereby embedding in the law the mischievous notion that
a defendant is entitled to the protection of the Speedy Trial
Clause even though he has suffered none of the harms against which
the Clause protects, as long as the government's conduct is
sufficiently culpable. I would disregard the concession, for much
the same reasons that we sometimes consider an argument that a
litigant has waived. See,
e. g., Arcadia v.
Ohio Power
Co., 498 U. S.
73, 77 (1990);
Kamen v.
Kemper Financial Services,
Inc., 500 U. S.
90, 99-100 (1991);
United States v.
Burke,
504 U. S. 229,
246 (1992) (SCALIA, J., concurring in judgment). I see little sense
in elevating an unwise concession into unwise law.
668
tice § 316, p. 209 (8th ed. 1880) ("While ... courts look with
disfavor on prosecutions that have been unduly delayed, there is,
at common law, no absolute limitation which prevents the
prosecution of offences after a specified time has arrived")
(footnote omitted); 1 H. Wood, Limitation of Actions § 28, p. 117
(4th ed. 1916) ("At common law there is no limitation to criminal
proceedings by indictment").
That is not to deny that our legal system has long recognized
the value of repose, both to the individual and to society. But
that recognition finds expression not in the sweeping commands of
the Constitution, or in the common law, but in any number of
specific statutes of limitations enacted by the federal and state
legislatures. Such statutes not only protect a defendant from
prejudice to his defense (as discussed above), but also balance his
interest in repose against society's interest in the apprehension
and punishment of criminals. Cf.
Toussie v.
United
States, 397 U. S.
112, 114115 (1970). In general, the graver the offense, the
longer the limitations period; indeed, many serious offenses, such
as murder, typically carry no limitations period at all. See,
e. g., Note, The Statute of Limitations in Criminal
Law: A Penetrable Barrier to Prosecution, 102 U. Pa. L. Rev. 630,
652-653 (1954) (comparing state statutes of limitations for various
crimes); Uelmen, Making Sense out of the California Criminal
Statute of Limitations, 15 Pac. L. J. 35, 76-79 (1983) (same).
These statutes refute the notion that our society ever has
recognized any general right of criminals to repose.
Doggett, however, asks us to hold that a defendant's interest in
repose is a value independently protected by the Speedy Trial
Clause. He emphasizes that at the time of his arrest he was
"leading a normal, productive and law-abiding life," and that his
"arrest and prosecution at this late date interrupted his life as a
productive member of society and forced him to answer for actions
taken in the distant past." Supplemental Brief for Petitioner on
Reargument 2. However uplifting this tale of personal redemption,
our task is to
669
illuminate the protections of the Speedy Trial Clause, not to
take the measure of one man's life.
There is no basis for concluding that the disruption of an
accused's life years after the commission of his alleged crime is
an evil independently protected by the Speedy Trial Clause. Such
disruption occurs
regardless of whether the individual is
under indictment during the period of delay. Thus, had Doggett been
indicted shortly before his 1988 arrest rather than shortly after
his 1980 crime, his repose would have been equally shattered-but he
would not have even a colorable speedy trial claim. To recognize a
constitutional right to repose is to recognize a right to be tried
speedily
after the offense. That would, of course, convert
the Speedy Trial Clause into a constitutional statute of
limitations-a result with no basis in the text or history of the
Clause or in our precedents.
II
Our constitutional law has become ever more complex in recent
decades. That is, in itself, a regrettable development, for the law
draws force from the clarity of its command and the certainty of
its application. As the complexity of legal doctrines increases,
moreover, so too does the danger that their foundational principles
will become obscured. I fear that danger has been realized here. So
engrossed is the Court in applying the multifactor balancing test
set forth in
Barker that it loses sight of the nature and
purpose of the speedy trial guarantee set forth in the Sixth
Amendment. The Court's error, in my view, lies not so much in its
particular application of the
Barker test to the facts of
this case, but more fundamentally in its failure to recognize that
the speedy trial guarantee cannot be violated-and thus
Barker does not apply at all-when an accused is
entirely
unaware of a pending indictment against him.
I do not mean to question
Barker's approach, but merely
its scope. We have long recognized that whether an accused
670
has been denied his right to a speedy trial "depends upon
circumstances."
Beavers v.
Haubert, 198 U. S. 77, 87 (1905).
By setting forth a number of relevant factors,
Barker
provided this contextual inquiry with at least a modicum of
structure. But
Barker's factors now appear to have taken on
a life of their own. Instead of simply guiding the inquiry whether
an individual
who has been deprived of a liberty protected by
the Clause is entitled to relief,
Barker has become a
source for new liberties under the Clause. In my view, application
of
Barker presupposes that an accused has been subjected to
the evils against which the Speedy Trial Clause is directed-and, as
I have explained, neither pretrial delay nor the disruption of life
is itself such an evil. 5
Today's opinion, I fear, will transform the courts of the land
into boards of law enforcement supervision. For the Court compels
dismissal of the charges against Doggett not because he was harmed
in any way by the delay between his indictment and arrest,6 but
simply because the Government's efforts to catch him are found
wanting. Indeed, the Court expressly concedes that "if the
Government had pursued Doggett with reasonable diligence from his
indictment to his arrest, his speedy trial claim would fail."
Ante, at 656. Our function, however, is not to slap the
Government on the wrist
5 To recognize that neither of these considerations provides an
independent ground for speedy trial relief, of course, is not to
say that neither of them is
relevant to speedy trial
analysis. Both may be appropriate considerations in the highly
contextual inquiry whether a defendant who
has been deprived
of a liberty protected by the Clause is entitled to relief. See
Barker, 407 U. S., at 530-533.
6 It is quite likely, in fact, that the delay
benefited
Doggett. At the time of his arrest, he had been living an
apparently normal, law-abiding life for some five years-a point not
lost on the District Court Judge, who, instead of imposing a prison
term, sentenced him to three years' probation and a $1,000 fine.
App. 114-115. Thus, the delay gave Doggett the opportunity to prove
what most defendants can only promise: that he no longer posed a
threat to society. There can be little doubt that, had he been
tried immediately after his cocaine-importation activities, he
would have received a harsher sentence.
671
for sloppy work or misplaced priorities, but to protect the
legal rights of those individuals harmed thereby. By divorcing the
Speedy Trial Clause from all considerations of prejudice to an
accused, the Court positively invites the Nation's judges to
indulge in ad hoc and result-driven secondguessing of the
government's investigatory efforts. Our Constitution neither
contemplates nor tolerates such a role. I respectfully dissent.
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