State v. Rogers

¶1(dissenting). I agree with the majority that whether pre-accusation delay is fatal to bringing a charge, as here, against a defendant, is governed by the decision of the United States Supreme Court case of United States v. Marion.1 I disagree with the majority’s interpretation of that decision, and I would reverse and remand for further proceedings in the trial court because the trial court did not apply the standards of Marion and it should be given an opportunity to apply those standards following an evidentiary hearing on the defendant’s motion to dismiss for delay.

¶21 disagree with the clear implication of the. majority opinion that the two-part standard of Marion (actual prejudice and intentional prosecutorial delay) is the exclusive test in this type of case. In my opinion, Marion should be interpreted to mean that actual prejudice alone can be sufficient to warrant dismissal. Thus, the United States Supreme Court said:

“. . . we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution.”2

¶3The final words of the opinion are:

“. . . Events of the trial may demonstrate actual prejudice, but at the present time appellees’ due process claims are speculative and premature.”3

¶4*168Neither of these passages mentions intentional prosecu-torial delay as a separate mandatory element of the test. In this regard it should be noted that one of the federal cases decided since Marion4 specifically reserved judgment on a prosecution argument that Marion had established intentional prosecutorial delay as a required element of the test.

¶5This interpretation of Marion is preferable in light of a defendant’s protected constitutional right to due process, which includes a right to a fair trial. Marion recognizes that pre-accusation delay can infringe upon this right.5 To hold that Marion also requires a defendant to carry the heavy burden of proving intentional delay in every case is inconsistent with fair protection of this right. Thus interpreted, Marion is not inconsistent with the more flexible balancing approach of Midell6 and subsequent Wisconsin cases.7 According to this approach, intentional prosecutorial delay is only one factor which the trial court should consider, and it is not a condition precedent to a determination that the case should be dismissed. This more flexible approach better secures the due process right of a defendant to a reasonably prompt accusation of a crime.

¶6As to the showing of actual prejudice the defendant was never afforded an evidentiary hearing on his motion to dismiss for delay. Unlike Marion, where the defendant relied only “on potential, prejudice and the passage of time,”8 in the instant case the defendant produced a sworn affidavit alleging specific facts amounting to actual prejudice. These included (1) prosecutorial withholding of the names of witnesses to the alleged crime *169for more than fifteen months after its occurrence, (2) a delay of over fourteen months in notifying defendant that he would be charged, with the result that he lost his chance to make a meaningful survey of the scene of the crime and a useful test of the automobile involved in the crime, and (3) apparent loss of the opportunity to cross-examine at trial two key witnesses who allegedly had given conflicting accounts of the event.

¶7I would remand with directions to the trial court to afford defendant an evidentiary hearing on his motion to dismiss for delay.