Team 31
No. 15-0319
In the
Supreme Court of the United States
February Term, 2016
_________________
GARY WALSH,
Petitioner,
v.
STATE OF SETONIA
Respondent.
_________________
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF SETONIA
_________________
BRIEF FOR THE PEITITIONER
_________________
Counsel for the Petitioner
Citations conform to The Bluebook: A Uniform System of Citation, Twentieth Edition
QUESTION PRESENTED
(1)
Can a State criminalize a person’s refusal to take a chemical test to identify the
presence of alcohol in his or her blood without a warrant?
(2)
Does the Sixth Amendment’s Speedy Trial Clause apply to the sentencing phase of
a criminal prosecution?
``
i
TABLE OF CONTENTS
QUESTION PRESENTED
TABLE OF CONTENTS
TABLE OF AUTHORITIES
BRIEF FOR PETITIONER
OPINIONS BELOW
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
STATEMENT OF THE CASE
A. Factual Background
1. Fourth Amendment
2. Sixth Amendment
B. Procedural Background
1. Fourth Amendment
2. Sixth Amendment
SUMMARY OF THE ARGUMENT
A. Fourth Amendment
B. Sixth Amendment
ARGUMENT
I.
IMPOSING CRIMINAL PENALTIES FOR REFUSING TO
SUBMIT TO AN UNLAWFUL SEARCH IS UNCONSTITUTIONAL.
A. The Fourth Amendment Protects Individuals Against A Warrantless Search.
1. The need to obtain a chemical test does not create an
exigent circumstance.
2. A chemical test does not constitute a reasonable search under the
search-incident-to-arrest exception of the warrant requirement.
B. The Search-Incident-To-Arrest Exception Is Limited To An Individuals
Personal Items and Grabbing Area.
1. The search-incident-to-arrest exception is limited to the
purposes of promoting officer safety and preventing the
destruction of evidence.
2. This Court has an extensive history of protecting an individual’s
privacy expectation in their own body.
C. If An Exception To The Warrant Requirement Does Not Exist,
An Individual Has The Right To Refuse A Warrantless Search
Without Punishment.
ii
Page
i
ii
iv
vii
vii
vii
1
2
2
3
3
3
5
7
7
9
10
10
10
11
12
13
13
15
16
1. The government may not criminalize the act of asserting
Fourth Amendment protections.
2. The government cannot impose criminal sanctions as an
implied consent condition for obtaining a driver’s license.
II.
THE SIXTH AMENDMENT RIGHT TO SPEEDY TRIAL
PROTECTS DEFENDANTS THROUGHOUT THE
ENTIRE CRIMINAL PROCEDURE.
A. Under the Anglo-American Tradition, The Constitution Has
Worked to Protect Defendants Throughout The Guilt-Determination
And Sentencing Phase.
1. This Court has held that sentencing is assumed to be protected by the
Right to Speedy Trial.
2. Constitutional right in the Firth and Sixth Amendment
have extended application to the sentencing phase.
B. Violations Of The Sixth Amendment And Its Remedies Are
Determined On A Case-By-Case Basis.
1. The four-part Barker balancing test can be applied to the sentencing phase.
i.
There has been an actual delay in criminal proceedings.
ii.
The delay was caused by the government.
iii.
The Petitioner asserted his Right to Speedy Trial.
iv.
The delay resulted in prejudice.
2. Dismissal is not the only judicially created remedy that can be
implemented in the Right to Speedy violations during
the sentencing phase.
CONCLUSION
iii
16
17
18
18
19
20
22
23
23
23
24
25
28
29
TABLE OF AUTHORITIES
Page
United States Supreme Court Cases:
Apprendi v. New Jersey, 530 U.S. 466 (2000)
20, 21, 24
Arizona v. Gant, 556 U.S. 332 (2009)
10, 12
Barker v. Wingo, 407 U.S. 514 (1972)
passim
Brigham City v. Stuart, 547 U.S. 398 (2006)
3, 8, 11
Camara v. Municipal Court of City & County of San Francisco, 387 U.S. 523 (1967)
4, 8, 16
Chimel v. California, 395 U.S. 752 (1969)
12, 13
Dickey v. Florida, 398 U.S. 30 (1970)
18, 20
Doggett v. United State, 505 U.S. 647 (1992)
23-25
Fernandez v. California, 134 S. Ct. 1126 (2014)
17
Estelle v. Smith, 451 U.S. 545 (1981)
22
Johnson v. United States, 333 U.S. 10 (1948)
11
Katz . United States, 389 U.S. 347 (1967)
8, 10
Kentucky v. King, 563 U.S. 452 (2011)
11
Klopfer v. State of North Carolina, 386 U.S. 213 (1967)
Mempa v. Rhay, 389 U.S. 128 (1967)
7, 18, 25
20-21
McCreary, Kentucky v. ACLU of Kentucky, 545 U.S. 844 (2005)
McDonald v. City of Chicago, Illinois, 561 U.S. 742 (2010)
20
18-20
McDonald v. United States, 335 U.S. 451 (1948)
12
Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990)
17
Missouri v. McNeely, 133 S. Ct. 1552 (2013)
passim
Mitchell v. United States, 526 U.S. 314 (1999)
20-22
Moore v. Arizona, 414 U.S. 25 (1973)
23
Pollard v. United States, 352 U.S. 354 (1957)
6, 9, 19-20
Press-Enterprise Company v. Superior Court for the County of Riverside, 478 U.S. 1 (1986) 22
Riley v. California, 134 S. Ct. 2473 (2014)
4, 8, 12-13
Schmerber v. California, 384 U.S. 757 (1966)
17
Schneckloth v. Bustamonte, 412 U.S. 218 (1973)
Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989)
Smith v. Hooey, 393 U.S. 374 (1969)
8, 18
16
25-27
Smith v. United States, 360 U.S. 1 (1959)
29
Strunk v. United States, 412 U.S. 434 (1973)
passim
iv
Terry v. Ohio, 392 U.S. 1 (1968)
10, 15
United States v. Ewell, 383 U.S. 116 (1966)
22
United States v. Lovasco, 431 U.S. 783 (1977)
19-20
United States v. Marion, 404 U.S. 307 (1971)
22, 25
United States v. Robinson, 414 U.S. 218 (1973)
4, 12, 14-15
Waller v. Georgia, 467 U.S. 39 (1986)
22
Winston v. Lee, 470 U.S. 753 (1985)
16
Wyoming v. Houghton, 526 U.S. 295 (1999)
8, 15
Van Orden v. Perry, 545 U.S. 677 (2005)
18-20
United States Circuit Court Cases:
Brady v. Superintendent, Anne Arundel County Detention Center,
443 F.2d 1307 (4th Cir. 1971)
19
Brooks v. United States, 423 F.2d 1149 (8th Cir. 1970)
Burkett v. Cunningham, 826 F.2d 1028 (3d Cir. 1987)
Juarez-Cares v. United States, 496 F.2d 190 (5th Cir. 1974)
Perez v. Sullivan, 793 F.2d 249 (10th Cir.1986)
19
19, 23, 29
25
20, 23, 28
Tinghitella v. State of California, 718 F.2d 308 (9th Cir. 1983)
United States v. Carpenter, 781 F.3d 599 (1st Cir. 2015)
19
19, 27
United States v. Gibson, 353 F.3d 21 (D.C. Cir. 2003)
19
United States v. Miter, 446 Fed. Appx. 244 (11th Cir. 2011)
20
United States v. Peters, 349 F.3d 842 (5th Cir. 2003)
United States v. Ray, 578 F.3d 184 (2d Cir. 2009)
United States v. Reese, 568 F.2d 1246 (6th Cir. 1977)
19, 23
20
19, 23, 25
United States v. Rivera, 682 F.3d 1223 (9th Cir. 2012)
21, 22
United States v. Rothrock, 20 F.3d 709 (7th Cir. 1988)
20, 23
United States v. Thomas, 167 F.3d 299 (6th Cir. 1999)
19
United States v. Thompson, 713 F.3d 388 (8th Cir. 2013)
21, 22
State Court Cases:
State v. Allen, 505 N.W. 2d 801 (Wis. App. 1993)
State of Setonia v. Walsh, No. 016-010916 (Set. Sup. Ct. 2016)
v
28, 29
passim
Constitutional Provisions:
U.S. CONST. amend. IV
10, 18
U.S. CONST. amend. VI
18
Statutes:
Setonia Statute § 169A.20
1, 3
Setonia Statute § 169A.51
2, 17
Other Authorities:
Black’s Law Dictionary
20
Brook A. Brewer, Rapist Goes Free After “Doing Time” At Home: Jolly v. State,
58 ARK. L. REV. 679 (2005)
20, 28-29
Honorable Michael A. Wolff, Evidence-Based Judicial Discretion:
Promoting Public Safety Through State Sentencing Reform,
83 N.Y.U. L. REV. 1389 (2008)
27
Marie Gottschalk, Bring It On: The Future Of Penal Reform, The Carceral State,
And American Politics, 12 OHIO ST. J. CRIM. L. 559 (2015)
http://www.centeronaddiction.org/addiction-research/reports/
substance-abuse-prison-system-2010 (last visited March 10, 2016)
Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 115 (2003)
26, 27
26
National Center of Addiction and Substance Abuse at Columbia University,
Behind Bars II: Substance Abuse And America’s Prison Populations (Feb. 2010)
vi
26, 28
BRIEF FOR PETITIONER
Petitioner Gary Walsh respectfully requests that this Court reverse the judgment of the
Setonia Supreme Court.
OPINIONS BELOW
The opinion of the Setonia Supreme Court is reported at State of Setonia v. Walsh, No.
016-010916 (Set. Sup. Ct. 2016).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fourth Amendment of the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
The Sixth Amendment of the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously ascertained by
law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance of Counsel for his
defense.
Setonia Statute 169A.20 provides:
Subdivision 2. It is a crime for any person to refuse to submit to a chemical test of
the person’s blood, breath or urine under section 169A.51 (chemical tests for
intoxication) or 169A.52 (test refusal or failure; revocation of license).
Setonia Statute 169A.51 provides:
Subdivision 1. Implied consent; conditions; election of test.
(a) Any person who drives, operates, or is in physical control of a motor vehicle
within this state or on any boundary water of this state consents, subject to the
provisions of sections 169A.50 to 169A.53 (implied consent law), and section
169A.20 (driving while impaired), to a chemical test of that person’s blood,
vii
breath, or urine for the purpose of determining the presence of alcohol, a
controlled substance or its metabolite, or a hazardous substance. The test must
be administered at the direction of a peace officer.
(b) The test may be required of a person when an officer has probable cause to
believe the person was driving, operating, or in physical control of a motor
vehicle in violation of section 169A.20 (driving while impaired), and one of
the following conditions exist:
(1) the person has been lawfully placed under arrest for violation of
section 169A.20 or an ordinance in conformity with it;
***
Subdivision 2. Implied consent advisory.
(a) Subject to paragraph (b), at the time a test is requested, the person must be
informed:
(1) that Setonia law requires the person to take a test:
(i)
to determine if the person is under the influence of alcohol,
controlled substances, or hazardous substances;
(2) that refusal to take a test is a crime; and
(3) that the person has the right to consult with an attorney, but that this
right is limited to the extent that it cannot unreasonably delay
administration of the test.
STATEMENT OF THE CASE
This Court is being asked to reverse the decision of the Setonia Supreme Court. First, this
case challenges the constitutionality of Test-Refusal Statutes, which makes it a crime for anyone
arrested for driving while impaired to refuse to submit to a warrantless test of the their breath,
blood or urine to detect the presence of alcohol. Set. Stat. § 169A.20. The court incorrectly held
that a warrantless breath test under the search-incident-to-arrest exception to Fourth Amendment
warrant requirement was constitutional. Based on Fourth Amendment law and recent decisions
1
of this Court, a statute that criminalizes the right to refuse a warrantless search is
unconstitutional.
Second, this case challenges the exclusion of sentencing in the right to a speedy trial of
the Sixth Amendment. The court incorrectly held that the right to speedy trial does not
encompass the sentencing phase. Based on Anglo-American tradition and this Court’s precedent
the sentencing phase of a criminal proceeding is included in the Sixth Amendment’s right to a
speedy trial.
A. Factual Background
1. Fourth Amendment
This case emerges from a report that was received on October 4, 2014 by the Brick City
Police Department that “three intoxicated men were attempting to get a boat out of the water at a
launch in Sandy Hook, Setonia.” R. at 1. Two police officers, Officer Wilson and Egan arrived at
the scene, where a witness informed them “that the truck became stuck in the river while the men
were trying to take their boat out of the water.” R. at 1.
The officers approached the men, one of whom was identified as Gary Walsh, the
Petitioner. Mr. Walsh admitted that he had been drinking but denied being the truck’s driver. R.
at 1. The officers spoke to the witness again, who then identified Mr. Walsh as the driver of the
truck. Mr. Walsh was subsequently arrested on suspicion of driving while impaired. R. at. 1.
Mr. Walsh was read the Setonia Implied Consent Advisory informing him that “Setonia
law required him to take a chemical test, that refusal to take the test was a crime, and that he had
the right to consult with an attorney so long as there was not an unreasonable delay in the
administration of the test.” R. at 1-2; Set. Stat. § 169A.51, subd. 2. Mr. Walsh declined to take
the test and at no time did either of the officers obtain a search warrant. R. at 2. As a result of his
2
refusal, he was charged with two counts of First Degree Driving While Impaired—Test Refusal
in violation of Setonia Statute § 169A.20, subd. 1(1)-(2)(2014).
2. Sixth Amendment
At Mr. Walsh’s arraignment, he informed the court that he failed to appear in court on
unrelated charges of assault in January 2014. On October 13, 2014, Mr. Walsh was charged with
bail jumping. R. at 3. On October 24, 2014, Mr. Walsh pled guilty to the assault charge and was
sentenced to five years imprisonment at the Setonia Department of Corrections. R. at 3. Mr.
Walsh was then sent back to Brick City Detention Center to await his arraignment on the bail
jumping charge. R. at 3.
B. Procedural Background
1. Fourth Amendment
Mr. Walsh filed a motion to dismiss arguing that the “statute criminalizes [the] Fourth
Amendment right to refuse an unconstitutional, warrantless search.” R. at 2. The trial court
agreed and the prosecution was dismissed. R. at 2. The court stated that the Setonia Test-Refusal
Statute was “meant to impose criminal penalties only for a refusal of a lawful demand to be
tested.” R. at 2.
The court discussed that a warrantless search is per se unreasonable, subject to only a few
specifically established and well-delineated exceptions. R. at 2; Brigham City v. Stuart, 547 U.S.
398, 403 (2006). The court determined that neither the consent or exigency exceptions to the
warrant requirement applied in this case; Mr. Walsh did not consent to the testing and
“something more than the ‘natural dissipation of alcohol in the blood’ is required to establish an
exigency justifying a warrantless search.” R. at 2; Mo. v. McNeely, 133 S. Ct. 1552 (2013). The
court held that “[b]ecause no warrant was obtained and none of the recognized exceptions to the
3
warrant requirement apply, no lawful basis exists in this case to request submission to a chemical
test.” R. at 2. The State appealed the trial courts decision, the appellate court transferred the
matter to the Setonia Supreme Court. R. at 2.
Contrary to the trial courts reasoning, the Setonia Supreme Court found that the search of
Mr. Walsh “was not only reasonable but constitutional pursuant to the search-incident-to-arrest
exception.” R. at 5. In United States v. Robinson, 414 U.S. 218, 235 (1973), the Court held that
“[i]n the case of a lawful custodial arrest a full search of the person is not only an exception to
the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that
Amendment.” R. at 5;. The court also acknowledged that in Riley v. California, 134 S. Ct. 2473
(2014), a broader search of “the person of the arrestee” was permitted than of the “area where the
defendant was arrested” or “items near the defendant.” R. at 6. Accordingly, the Setonia
Supreme Court held “a warrantless breath test [as a search of the arrestee’s person] in this case
would have been reasonable, and therefore constitutional, under the search-incident-to-arrest
exception to the Fourth Amendment’s warrant requirement.” R. at 6.
In a joint dissent, three Setonia Supreme Court justices criticized the majority’s
misplaced focus on the decision in Robinson and Riley, stating that the only exception to the
warrant requirement that would apply would be that of exigency. R. at 8. But this Court in
Missouri v. McNeely, 133 S. Ct. 1552 (2013), specifically rejected the proposition “that the
natural metabolization of alcohol constitutes a per se exigency justifying a warrantless blood
test.” R. at 8. The dissent as supported by Camara v. Municipal Court of the City and County of
San Francisco, 387 U.S. 523 (1967), where this Court explicitly held that “a state cannot
criminalize the refusal to consent to an illegal warrantless search.” R. at 9. Thus the dissent
4
determined that “a State may not constitutionally convict persons who exercise their
constitutional right to insist that police obtain a warrant.” R. at 9.
This Court should reverse the decision of the Setonia Supreme Court by finding that the
imposition of criminal penalties for refusing to submit a warrantless breath test is
unconstitutional.
2. Sixth Amendment
On November 14, 2014, Mr. Walsh pled guilty to the charge of bail jumping. R. at 3.
Following the plea, the State filed notice that it intended to designate Mr. Walsh as a persistent
felony offender. R. at 3. On November 20, 2014, Mr. Walsh objected to the notice. R. at 3. Five
months later, on June, 23, 2015, the court denied Mr. Walsh’s objection to the State’s notice. R.
at 3.
After Mr. Walsh’s plea on November 14, 2014, the court ordered for the Presentence
Investigation Report be updated. R. at 3. The order also confirmed that upon the completion of
the report, sentencing would be scheduled. R. at 3. On May 12, 2015 the report was completed,
approximately seven months from the date of Mr. Walsh’s plea. R. at 3. After another two
months, the court scheduled Mr. Walsh’s sentencing hearing for July 28, 2015. R. at 3. At the
sentencing hearing, Mr. Walsh filed a motion to dismiss the bail jumping charge arguing that
“his delay in sentencing amounted to a denial of his right to a speedy trial in violation of his
constitutional rights.” R. at 3. The court permitted the State’s request for time to respond which
occurred on August 11, 2015. Subsequently, on October 13, 2015, the trial court denied Mr.
Walsh’s motion stating that his Sixth Amendment rights were not violated based on the length of
the delay, the reason for the delay and whether there was any prejudice to the accused. R. at 4;
See State v. Ariegwe, 167 P.3d 815 (Mont. 2007).
5
In September of 2015, both the State and Mr. Walsh notified the court that “a date for
sentencing was necessary.” R. at 4. On November 24, 2015, Mr. Walsh filed an Affidavit with
the Superior Court. R. at 4. The Affidavit included the following:
That he had been held at the Brick City Detention Center for approximately 400
days; that had he been sentenced and sent to the Setonia State Prison, where he
would have been classified as an inmate, he would have been eligible for
conditional release on the underlying family member assault charge;...that while
he had been able to receive Anger Management Counseling in the Brick City
Detention Center, the Center did not offer the chemical dependency or mental
health counseling required as a part of his family member assault sentencing; that
he had depress and anxiety as a result of the delay; and that the Center did not
provide any medication for either his high blood pressure or stomach issues.
R. at 4. Mr. Walsh requested that the bail jumping charges be dismissed and a hearing be
scheduled. R. at 4. Mr. Walsh’s request was denied. R. at 4.
On December 28, 2015, over a year from the date of his plea, Mr. Walsh was sentenced. R.
at 4. Mr. Walsh received seven years in Setonia State prison, with four years suspended, to be
served consecutive to his current sentence. Mr. Walsh appealed the trial courts decision, the
appellate court transferred the matter to the Setonia Supreme Court. R. at 4.
The Setonia Supreme Court held that the Sixth Amendment speedy trial right does not
extend to sentencing. R. at 6. The court acknowledged that this Court has never addressed the
issue of speedy sentencing directly but that it did “assume arguendo that sentence is part of the
trial for purposes of the Sixth Amendment.” R. at 6; Pollard v. U.S., 352 U.S. 354, 361 (1957).
The court stated that “[t]he Sixth Amendment is designed to “...prevent oppressive pretrial
incarceration, minimize anxiety and concern of the accused, and limit the possibility that the
defense will be impaired.” R. at 7; Barker v. Wingo, 407 U.S. 514, 531 (1972).
6
Based on this reasoning the court determined Mr. Walsh’s “anxiety as a defendant who has been
convicted is much different than the anxiety of an accused” and that the “finding of a
constitutional violation would render the underlying crime for which the accused has been found
guilty dismissed.” R. at 7; see Strunk v. U.S., 412 U.S. 434 (1973); see Klopfer v. N.C., 386 U.S.
213, 222 (1967). Thus, the court determined absent a ruling for the highest Court, “the Sixth
Amend right to a speedy trial does not include sentencing.” R. at 7.
In a joint dissent, three Setonia Supreme Court justices again criticized the majority’s
opinion and disregard for this Court’s assumption by creating one of its own. R. at 9. The dissent
stated that the majority correctly interpreted the Sixth Amendment’s design, but failed to
acknowledge “[t]hese interests do not evaporate after a defendant’s conviction.” R. at 9. The
dissent determined that applying these interest’s to Mr. Walsh’s case as Barker v. Wingo, 407
U.S. 514 (1972), instructs, would lead to a finding that Mr. Walsh’s right to a speedy trial had
been violated. R. at 10. This dissent also notes that there are alternative remedies to the
constitutional violation then the dismissal of the underlying claim. R. at. 10.
This Court should reverse the decision of the Setonia Supreme Court by finding that the
sentencing phase is included in the Sixth Amendment’s right to a Speedy Trial Clause.
SUMMARY OF THE ARGUMENT
A. Fourth Amendment
Absent a warrant, imposing criminal penalties for refusing to submit to a chemical test is
unconstitutional. The Setonia Supreme Court wrongfully held that a breath test would have been
reasonable under the search-incident-to-arrest exception to the warrant requirement of the Fourth
Amendment. The trial court correctly determined that none of the recognized exceptions to the
warrant requirements apply thus no lawful basis existed to request a submission to a chemical
7
test. It is evident a search without a warrant is unreasonable under the Fourth Amendment unless
an exception applies, which they do not. This Court should require a warrant to impose criminal
penalties for refusing to submit to a chemical test for three specific reasons.
First, the Fourth Amendment protects persons from unreasonable searches and seizures.
A search conducted under the Fourth Amendment without a warrant is per se unreasonable. Katz
v. U.S., 389 U.S. 347 (1967). However, the warrant requirement of the Fourth Amendment is
subject to exceptions, such as exigency and search-incident-to-arrest. Brigham City v. Stuart, 547
U.S. 298 (2006). But, neither of these exceptions apply to a search to obtain blood, breath or
urine. Becuase something more than just the “natural dissipation of alcohol in the blood” is
required to establish exigency. Mo. v. McNeely, 133 S. Ct. 1552 (2013). The search-incident-toarrest exception is limited to officer safety and the preservation of evidence. Riley v. Cal., 134 S.
Ct. 2473 (2014). The performance of a chemical test does not put an officer in danger nor does it
preserve evidence.
Second, this Court has an extensive history of protecting an individual’s privacy
expectation in his or her own body. Wyo. v. Houghton, 526 U.S. 295, 303 (1999). The Fourth
Amendment provides heighted protection when it comes to a person’s body.
Third, it is impermissible for the government to impose criminal punishment on an
individual for asserting their constitutional right. Absent an exception to the warrant requirement,
it is unconstitutional to penalize a person for refusing to submit to an unlawful warrantless
search. Camara v. Mun. Court of City & Cty. Of San Francisco, 387 U.S. 523 (1967).
Additionally, a statute that automatically implies consent violates this Court’s precedent that
consent must be freely and voluntarily given based on the totality of the circumstances.
Schneckloth v. Bustamonte, 412 U.S. 218.
8
For these reasons, this Court should hold that the imposition of criminal penalties in the
absence of warrant for the refusal to submit to a chemical test violates the Fourth Amendment.
Therefore, this Court should reverse the decision of the Supreme Court of Setonia.
B. Sixth Amendment
Failure to provide a defendant the right to a speedy trial is a violation of the Sixth
Amendment. The Setonia Supreme Court wrongfully held that the right to a speedy trial does not
apply to post-trial delays. The trial court caused an unreasonable delay in sentencing that
prejudiced the Petitioner in violation of the Sixth Amendment. This Court should find that the
Sixth Amendment provides for the protection of the right to a speedy trial through the sentencing
phase for two specific reasons.
First, based on the tradition of the Constitution, rights are extended throughout a
defendant’s entire criminal proceeding. Klopher v. N.C., 386 U.S. 213 (1967). This Court has
held for the sake of argument, the sentencing phase is included in the right to a speedy trial.
Pollard v. U.S., 352 U.S. 354 (1957). Ten circuits and a majority of the states have assumed or
explicitly held that the Sixth Amendment includes sentencing. Other constitutional protections,
such as those afforded under the Fifth and Sixth Amendment, are available during the sentencing
phase.
Second, after a violation has occurred and been asserted a defendant is entitled to a
determination by the court. This Court has applied a four factor balancing test to determine a
speedy trial violation: (1) actual delay, (2) causation by the government, (3) assertion of the
right, and (4) prejudice occurred. Barker v. Wingo, 407 U.S. 514 (1972). First, Mr. Walsh’s
sentence was delayed over a year. Second, the government intentionally caused this delay by
filing a persistence felony offender request after his plea. Third, after the violation occurred, Mr.
9
Walsh asserted his right to a speedy trial. Fourth, Mr. Walsh was severely prejudiced by the
delay; lost the opportunity for concurrent sentencing, a worsened current sentence, loss of
rehabilitation, and increased undue hardship and anxiety. Based on a balancing of these factors,
Mr. Walsh’s right was violated. Further, there are alternative remedies available other than
dismissal for a violation under the Sixth Amendment.
For these reasons, this Court should hold that the Speedy Trial Clause of the Sixth
Amendment includes the sentencing phase of a criminal proceeding. Therefore, this Court should
reverse the decision of the Supreme Court of Setonia.
ARGUMENT
I.
IMPOSING CRIMINAL PENALTIES FOR REFUSING TO SUBMIT TO AN
UNLAWFUL SEARCH IS UNCONSTITUTIONAL.
A. The Fourth Amendment Protects Individuals Against A Warrantless Search.
An individual’s Fourth Amendment rights are violated when the government conducts a
search of their person without a warrant or a valid exception. The Fourth Amendment protects
individuals from unreasonable searches and seizures by the government. Ariz. v. Gant, 556 U.S.
332 (2009). The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause...” U.S. Const.
AMEND.
IV. This
Court has ruled that an individual’s Fourth Amendment protection requires that a police officer,
“whenever practicable, obtain advance judicial approval of searches and seizures through the
warrant procedure.” Terry v. Ohio, 392 U.S. 1, 20 (1968). Additionally, this Court has held that
“searches conducted outside the judicial process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment.” Katz v. U.S., 389 U.S. 347, 357 (1967).
10
Obtaining a warrant “ensures that the inferences to support a search are ‘drawn by a neutral and
detached magistrate instead of being judged by the officer engaged in the often competitive
enterprise of ferreting out crime.’” Johnson v. U.S., 333 U.S. 10, 14 (1948).
Nevertheless, the requirement of a warrant under the Fourth Amendment is “subject to
only a few specifically established and well-delineated exceptions.” Brigham City v. Stuart, 547
U.S. 398, 403 (2006). However, the search of an individual’s blood, breath, or urine does not fall
within any exception recognized by this Court and is therefore protected by the Fourth
Amendment’s warrant requirement.
Thus, in order for the government to conduct a chemical test, a warrant is required. Mr.
Walsh’s Fourth Amendment rights were violated by the officers’ failure to obtain a warrant. This
Court should find that failing to obtain a warrant, where required, is unreasonable and therefore a
violation of the Fourth Amendment.
1. The need to obtain a chemical test does not create an exigent
circumstance that would permit a warrantless search.
The exigency exception to the warrant requirement does not apply to chemical tests.
Exigency as an exception to the warrant requirement “applies when the exigencies of the
situation make the needs of law enforcement so compelling that a warrantless search is
objectively reasonable under the Fourth Amendment.” Ky. v. King, 563 U.S. 452, 460 (2011).
Situations where a warrantless search based on exigency is reasonable include law enforcement’s
need to provide emergency assistance, engaging in hot pursuit of a fleeing suspect and
preventing the imminent destruction of evidence. Mo. v. McNeely, 133 S. Ct. 1552, 1558-1559
(2013).
In Missouri v. McNeely, this Court held that “in drunk-driving investigations, the natural
dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient
11
to justify conducting a blood test without a warrant.” 133 S. Ct. at 1555. Additionally, in
McDonald v. United States, this Court held that “[w]e cannot...excuse the absence of a search
warrant without a showing by those who seek exemption from the constitutional mandate that the
exigencies of the situation made the search imperative.” 335 U.S. 451, 456 (1948). In this case,
no exigent circumstance existed and the Supreme Court of Setonia, without explanation, did not
even attempt to justify the warrantless search under the exception. This Court should find that
obtaining a chemical test did not create an exigent circumstance and therefore the exception to
the warrant requirement does not apply.
2. A chemical test does not constitute a reasonable search under the searchincident-to-arrest exception of the warrant requirement.
The search-incident-to-arrest exception under the Fourth Amendment does not apply to
chemical tests. This Court has recognized only two instances where the search-incident-to-arrest
exception would apply. First, when making an arrest an officer may conduct a search of the
person of the arrestee and second, searches of the area within the control of the arrestee. Riley v.
Cal., 134 S. Ct. 2473, 2483 (2014); U.S. v. Robinson, 414 U.S. 218, 224 (1973). However, both
exceptions are limited for the purposes of officer safety and the preservation of evidence. “When
an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to
remove any weapons that the latter might seek to use in order to resist arrest or effect his
escape.” Chimel v. Cal., 395 U.S. 752, 762-763 (1969). In addition, an arresting officer may
“search for and seize any evidence on the arrestee's person in order to prevent its concealment or
destruction.” Id. at 763. These two justification for the search-incident-to-arrest are to “ensure
that the scope of a search incident to arrest is commensurate with its purposes of protecting
arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might
conceal or destroy.” Gant, 556 U.S. at 339 (brackets omitted).
12
In Riley, the Court ruled that a warrantless search of an arrestee’s cellphone violated the
Fourth Amendment and “that the Chimel concerns for officer safety and evidence preservation
underlie the search incident to arrest exception.” 134 S. Ct. at 2484. A cellphone search does not
fall within the search-incident-to-arrest because “[d]igital data used on a cell phone cannot itself
be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape” Id. at
2485. Furthermore, the government's concerns that evidence contained on a cellphone might be
destroyed if a warrantless search is not permissible “are distinct from Chimel’s focus on a
defendant who responds to arrest by trying to conceal or destroy evidence within his reach.” Id.
at 2486. This Court held that a warrant is required to search the digital contents of a cell phone.
Id. at 2485. In this way, warrantless chemical searches are identical to warrantless cellphone
searches because an individual’s blood, breath, or urine cannot be used as a weapon to harm an
arresting officer or to effectuate escape. Further, a warrant is required to search the contents of a
cell phone, so to should a warrant be required to chemically test the contents of an individuals
bodily fluids. Consequently, the Supreme Court of Setonia incorrectly applied the searchincident-to-arrest exception and wrongfully upheld the criminal penalties.
B. The Search-Incident-To-Arrest Exception Is Limited To An Individual’s
Personal Items And Grabbing Area.
Consistent with this Court’s jurisprudence, the search-incident-to-arrest exception does
not include searches of a person’s body. The exception is limited to officer safety and the
preservation of evidence.
1. The search-incident-to-arrest exception is limited to the purposes of
promoting officer safety and preventing the destruction of evidence.
The Setonia Supreme Court incorrectly relied upon the search-incident-to-arrest
exception to limit its citizens Fourth Amendment protection as it pertains to their bodies.
13
However, the trial court did recognize the heightened Fourth Amendment protection of an
arrestee’s items or grabbing area. The trial court reaches this misguided conclusion while
admitting that the search-incident-to-arrest exception pertains only to “the protection of arresting
officers and the safeguarding of any evidence related to the offense that an arrestee may either
conceal or destroy.” R. at 5. The court goes so far as to concede that the government cannot
satisfy either requirement of officer protection or preventing the destruction of evidence.
“Admittedly, the State cannot demonstrate in this case that a search of the arrestee’s breath was
related to either one of these rationales. This Court need not make such a finding[.]” R. at 5. In
sidestepping the search-incident-to-arrest requirements, the court incorrectly grounds its ruling in
this Court’s existing jurisprudence.
[H]owever, in order to come to the conclusion that there is no Fourth Amendment
violation, as such considerations have no bearing on the permissibility of a search
incident to arrest when a warrantless search concerns not the area or items to be
searched but the body of a person validity arrested.
R. at 5. In reaching its ruling that the search-incident-to-arrest exception is limited to an
individual’s items and grabbing area, the court misinterprets this Court’s rulings in Robinson,
414 U.S. 218 (1973). The court reached its ruling based on the language, “[i]n the case of a
lawful custodial arrest a full search of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.”
Robinson, 414 U.S. 235.
The court only uses half of this Court’s ruling to support it’s improper ruling. The
language the lower court based its decision on shows that a full search of the person is only
justified for the purpose of officer safety and preventing the destruction of evidence. “The
authority to search the person incident to a lawful custodial arrest, while based upon the need to
disarm and to discover evidence[.]” Id.
14
In addition to the court’s misinterpretation of Robinson, its ruling simply cannot be
justified after an examination of this Court’s existing precedent in the privacy expectations of
one’s own body.
2. This Court has an extensive history of protecting an individual’s
privacy expectation in their own body.
The ruling of Setonia Supreme Court’s robs its own citizens of their Fourth Amendment
protection in their bodies. Such a ruling is not consistent with this Court’s long established
precedent in the importance of preserving an individual’s expectation of privacy in their own
body. “No right is held more sacred, or is more carefully guarded, by the common law, than the
right of every individual to the possession and control of his own person, free from all restraint
or interference of others, unless by clear and unquestionable authority of law.” Terry, 392 U.S. at
9 (quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891)). This Court’s jurisprudence
of a heightened expectation of privacy a person has in their body is substantial. This Court’s
history is highlighted in Wyoming v. Houghton:
United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948), held that
probable cause to search a car did not justify a body search of a passenger. And
Ybarra v. Illinois, 444 U.S. 85, (1979), held that a search warrant for a tavern and
its bartender did not permit body searches of all the bar's patrons. These cases
turned on the unique, significantly heightened protection afforded against
searches of one's person. Even a limited search of the outer clothing...constitutes a
severe, though brief, intrusion upon cherished personal security, and it must
surely be an annoying, frightening, and perhaps humiliating experience. Terry v.
Ohio, 392 U.S. 1, 24-25, (1968).
526 U.S. 295, 303 (1999).
Most recently in McNeely, this Court again reiterated that a search of the body is subject
to a heightened Fourth Amendment protection. 133 S. Ct. 1552 (2013). “That principle applies
to...a compelled physical intrusion beneath [the arrestee’s] skin and into his veins to obtain a
sample of his blood for use as evidence in a criminal investigation. Id. at 1558. This Court noted
15
that “[s]uch an invasion of bodily integrity implicates an individual's ‘most personal and deeprooted expectations of privacy.’” Id; see also Winston v. Lee, 470 U.S. 753, 760 (1985); see also
Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 616 (1989).
This Court’s precedent has consistently recognized that an individual has a heightened
expectation of privacy in their body. The Supreme Court of Setonia disregards this Court’s
rulings and concludes that the justifications for the search-incident-to-arrest exception “have no
bearing on the permissibility of a search incident to arrest when a warrantless search concerns
not the area or items to be searched but the body of a person validly arrest.” R. at 5.
C. If an exception to the warrant requirement does not exist, an individual has
the right to refuse a warrantless search without punishment.
Consistent with Fourth Amendment jurisprudence, a State cannot criminally punish a
person who exercises their constitutional right to refuse a search and insist that the government
obtain a warrant. Additionally, State implied consent statues are inconsistent with this Courts
precedent.
1. The government may not criminalize the act of asserting Fourth
Amendment protections.
It is impermissible to impose criminal punishment for on an individual who refuses to
consent to an illegal warrantless chemical test. In the absence of a warrant, an individual has the
right to refuse to submit to a warrantless search. Camara v. Mun. Court of City & Cty. of San
Francisco, 387 U.S. 523, 540 (1967). In Camara, health inspectors attempted to enter the
appellant’s apartment without a search warrant and the appellant refused. Id. at 525. The Court
held that the Fourth Amendment grants individuals the constitutional right to refuse a warrantless
search and insist that the government obtain a warrant for such a search. Id. at 540.
16
Here, Mr. Walsh refused a warrantless search of his body. When it comes to an
individual’s body, as discussed previously this Court has recognized that the Fourth Amendment
requires heightened protection, similar to that of an individual’s property. “Search warrants are
ordinarily required for searches of dwellings, and absent an emergency, no less could be required
where intrusions into the human body are concerned.” Schmerber v. Cal., 384 U.S. 757, 770
(1966). Since the government cannot criminalize an individual’s right to refuse a warrantless
search outside of a valid exception, the State of Setonia’s Test Refusal statute are
unconstitutional.
2. The government cannot impose criminal sanctions as an implied consent
condition for obtaining a driver’s license.
The government has a legitimate and compelling interest in preventing drunk driving.
“No one can seriously dispute the magnitude of the drunken driving problem or the States'
interest in eradicating it.” Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 451 (1990). However,
requiring a search warrant for chemical tests does not create an undue burden on the State to
achieve this interest. “As an initial matter, States have a broad range of legal tools to enforce
their drunk-driving laws and to secure BAC evidence without undertaking warrantless
nonconsensual blood draws.” McNeely, 133 S. Ct. at 1566. The government can use civil
liabilities as a method of achieving its means. “For example, all 50 States have adopted implied
consent laws that require motorists...to consent to BAC testing if they are arrested or otherwise
detained on suspicion of a drunk-driving offense.” Id.
Sentonia’s Implied Consent statute impermissible requires that all drivers give consent to
a chemical test. 169A.51(a). A law that automatically implies consent is inconsistent with this
Court’s rulings. First, an individual may not give consent for a fixed amount of time. Fernandez
v. Cal., 134 S. Ct. 1126, 1136 (2014). Second, consent must be freely and voluntarily given.
17
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). Voluntariness is a question of fact that is
determined by the totality of the circumstances. Id. at 248. This Court has held “that when the
subject of a search is not in custody and the State attempts to justify a search on the basis of his
consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was
in fact voluntarily given, and not the result of duress or coercion, express or implied.” Id. Mr.
Walsh did not voluntarily give consent, thus his constitutional rights have been violated.
Sentonia’s Implied Consent statute robs its citizens of the Fourth Amendment protections that
this Court has afforded them.
II.
THE SIXTH AMENDMENT RIGHT TO SPEEDY TRIAL PROTECTS
DEFENDANTS THROUGHOUT THE ENTIRE CRIMINAL PROCEDURE.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial….” U.S. CONST. amend. VI. “The right to a speedy
trial is not a theoretical or abstract right but one rooted in hard reality in the need to have charges
promptly exposed.” Dickey v. Fla., 398 U.S. 30, 37 (1970).
A. Under Anglo-American Tradition, The Constitution Has Worked To Protect
Defendants Throughout the Guilt-Determination And Sentencing Phase.
In order to interpret the scope of protection, the Court must look to the Framer’s intent,
also known as the original meaning. See Van Orden v. Perry, 545 U.S. 677, 726 (2005); see also
McDonald v. City of Chi., Ill., 561 U.S. 742, 812 (2010). Although the record of Framer’s intent
is “sparse,” it is clear that the Right to Speedy Trial was intended to guarantee adjudication
without unwarranted delay, as it is “essential to fundamental fairness.” See Dickey, 398 U.S. at
42 n. 2.
This right rose out of the Anglo-American tradition. Klopfer v. State of N.C., 386 U.S.
213, 223 (1967). For example, the Magna Carta provided that the government had no right to
“deny or defer to any man either justice or right,” to due process “speedily without delay.” Id. at
18
224 (quoting Chapter 29 of the Magna Carta). In this tradition, there is no distinction
between the guilt-determination phase and the sentencing phase. See id.
Since the tradition of the Right to Speedy protects the sentencing phase of the trial, this
Court must apply the Amendment as it was intended. See McDonald, 561 U.S. at 812; Van
Orden, 545 U.S. at 726. “If the right is not honored in a case of this kind, the basic values which
Framers intended to protect by the Sixth Amendment’s guarantee of a speedy trial…will become
nothing more than managerial considerations for the prosecutor to manipulate.” U.S. v. Lovasco,
431 U.S. 783, 800 (1977) (Stevens, J. dissenting).
As a result of the Framer’s interpretation of the Constitution, this Court and the majority
of circuits have included the sentencing phase in the Right to Speedy Trial.
1. This Court has held that sentencing is assumed to be protected by the Right
to Speedy Trial.
In Pollard v. United States, this Court addressed the issue of whether the sentencing
phase was included in the Right to Speedy Trial. 352 U.S. 354 (1957). The Court simply
“assumed arguendo” that the sentencing phase was protected. Id. at 361. Additionally, the
assumption was supported by Rule 32(a) of the Federal Rules of Criminal Procedure, which
“requires the imposition of sentence ‘without unreasonable delay.’” Id. In following Pollard, five
federal circuits have also assumed arguendo that the sentencing phase is protected by this Sixth
Amendment right.1 Of the remaining circuits, all but one, have held that the Right to Speedy
Trial extends protection in the sentencing phase.2
1
See U.S. v. Carpenter, 781 F.3d 599, 609 (1st Cir. 2015) Brady v. Superintendent, Anne Arundel Co. Det. Ctr., 443
F.2d 1307, 1310 (4th Cir. 1971); Brooks v. U.S., 423 F.2d 1149, 1151 (8th Cir. 1970); Tinghitella v. State of Cal.,
718 F.2d 308, 312 (9th Cir. 1983); U.S. v. Gibson, 353 F.3d 21, 26-27 (D.C. Cir. 2003).
2
See Burkett v. Cunningham, 826 F.2d 1028, 1211 (3d Cir. 1987); U.S. v. Peters, 349 F.3d 842, 850 (5th Cir. 2003);
U.S. v. Reese, 568 F.2d 1246, 1253 (6th Cir. 1977); U.S. v. Thomas, 167 F.3d 299, 303 (6th Cir. 1999); U.S. v.
19
Additionally, there are eight states that have assumed arguendo that the sentencing phase
is protected and fourteen, which have held explicitly that the right includes the sentencing phase.
Brook A. Brewer, Rapist Goes Free After "Doing Time" At Home: Jolly v. State, 58 ARK. L.
REV. 679, 684 (2005). Of all of the courts, only three states and one circuit have explicitly
refused to include the right past the verdict. See Brewer, 58 ARK. L. REV. at 684-685.
Those refusing courts base their argument on the definition of trial, which only includes
the guilt-determination phase. U.S. v. Ray, 578 F.3d 184, 194-196 (2d Cir. 2009). However, this
argument fails because the reliance on the definition of trial is in the word’s modern use rather
than the original meaning. Id. at 196; Black’s Law Dictionary (6th ed. 1990). Since, the right
was not created in modern times the interpretation cannot be as such. See Dickey, 398 U.S. at 42.
See also McDonald, 561 U.S. at 812; Van Orden, 545 U.S. at 726.
Reading the Constitution as a living document, in order to justify “democratic
aspirations,” would actually destroy the objectives of the Sixth Amendment. See McCreary, Ky.
v. ACLU of Ky., 545 U.S. 844, 845 (2005); see also Lovasco, 431 U.S. at 800. Therefore, this
Court should read the Right to Speedy Trial as it has already been interpreted, which includes
protecting the sentencing phase of trial. Pollard, 352 U.S. at 361.
2. Constitutional rights in the Fifth and Sixth Amendment have extended
application to the sentencing phase.
Other constitutional rights protect a defendant during the sentencing phase of trial. See
Mempa v. Rhay, 389 U.S. 128, 134 (1967); Mitchell v. U.S., 526 U.S. 314, 329-330 (1999);
Apprendi v. N.J., 530 U.S. 466, 486 (2000). For example, the right to the assistance of counsel,
Rothrock, 20 F.3d 709, 711 (7th Cir. 1988); Perez v. Sullivan, 793 F.2d 249, 253-254 (10th Cir.1986); U.S.
446 Fed. Appx. 244, 246 (11th Cir. 2011).
20
v.
Miter,
the right to trial by an impartial jury, the right against self-incrimination and the right to public
trial have all been applied in the sentencing phase.3
Right of Counsel
The right of assistance to counsel is “required at every stage of a criminal proceeding
where substantial rights of a criminal accused may be affected.” Mempa, 389 U.S. at 134. In
other words, when a defendant’s rights are at stake, such as restricting liberties, the right of
counsel is essential to the entire criminal proceeding. Id. So, the Sixth Amendment’s right of
counsel protects defendants in the guilt-determination phase, as well as the sentencing phase. Id.
Thus, the Sixth Amendment’s Right to the Speedy Trial should also be extended to the same
sentencing phase. Id.
Right of Impartial Jury
This Court recognized the right to an impartial jury in the sentencing phase when a
defendant was subjected to “sentencing enhancements.” Apprendi, 530 U.S. at 486. A
“judgment” in trial is the determination and sentence of law. Id. at 479-480. Judges are limited
by legislature when it comes to making their judgment. Id. at 482-83. One of these limitations are
the maximum possible sentences for a specific conviction. Id. at 483.
If a sentence is to go beyond the legislative maximum, then a “sentencing enhancement”
is imposed. Id. Facts used to impose enhancements require a showing beyond a reasonable doubt
and review by an impartial jury. Id. at 483, 493, 495. Since sentencing is an extension of the
judgment, it a part of the “trial.” Id. at 495. Therefore, the Sixth Amendment extends to all parts
of trial, including the sentencing phase. Id.
Right Against Self-Incrimination
3
See Mempa, 389 U.S. at 134; Apprendi, 530 U.S. at 486; Mitchell, 526 U.S. at 329-330. See also U.S. v. Rivera,
682 F.3d 1223, 1229 (9th Cir. 2012). See also U.S. v. Thompson, 713 F.3d 388, 395-396 (8th Cir. 2013).
21
When it comes to the Fifth Amendment’s right against self-incrimination, there is “no
basis to distinguish between guilt and penalty phases.” Mitchell, 526 U.S. at 329 (citing Estelle v.
Smith, 451 U.S. 454, 462-463 (1981)). The Fifth Amendment protects against the “layman’s
nature first suggestion” to assume negative inferences if a defendant does not testify or allocute.
Id. at 330. Since this can affect the defendant’s liberty, the right must protect defendants beyond
the guilt-determination phase. Id. In the same manner that the Fifth Amendment right is extended
beyond the guilt-determination phase, so should the Right to Speedy Trial be extended.
Right to Public Trial
Both the Eighth and Ninth Circuits have held that the right to a public trial includes all
points of the proceedings. See Rivera, 682 F.3d at 1229; see also Thompson, 713 F.3d at 392393. As part of tradition, guilt-determination phases and sentencing phases are open for the
public to attend and obtain copies of court records, briefs, opinions, ect. Thompson, 713 F.3d at
393 (citing Press-Enter. Cty. v. Super. Ct. of Cal. For the Cty. of Riverside, 478 U.S. 1, 8
(1986)). This right insures that the judicial system “functions responsibly” and that the defendant
is tried fairly. Waller v. Ga., 467 U.S. 39, 46 (1986). Since the Sixth Amendment right to public
trial was interpreted as extending beyond the guilt-determination phase, so should the Right to
Speedy Trial.
B. Violations Of The Sixth Amendment And Its Remedies Are Determined On A
Case-By-Case Basis.
The Right to Speedy Trial, in general, is vague and circumstantial. Barker v. Wingo, 407
U.S. 514, 521 (1972); see U.S. v. Ewell, 383 U.S. 116, 120 (1966). One constant is the
defendant’s interest in having prompt criminal proceedings, especially when incarcerated. Strunk
v. U.S., 412 U.S. 434, 437 (1973). In order to invoke the Right to Speedy Trial, a defendant must
be restrained from liberty. U.S. v. Marion, 404 U.S. 307, 321 (1971). Once the defendant invokes
22
the right, the Court must determine whether there has been a violation, and if so, what the proper
remedy is. Here, the right has been invoked because the petitioner, Mr. Walsh has been
incarcerated since his arrest in October 10, 2014. R. at 3.
1. The four-part Barker balancing test can be applied to the sentencing phase.
A violation of the Right to Speedy Trial requires a balancing test. Barker, 407 U.S. at
529. In Barker, this Court applied four factors: (1) actual delay; (2) causation by the government;
(3) assertion of the right; and (4) prejudice occurred. Id. Although Barker is the standard, these
factors have no “talismanic qualities,” meaning it is not a comprehensive list of all of the factors
that can be used to determine a violation. Barker, 407 U.S. 533; see Moore v. Ariz., 414 U.S. 25,
26 (1973); Burkett, 826 F.2d at 1219. Further, all of the Barker factors can easily apply in the
sentencing phase.4
i.
There has been an actual delay in criminal proceedings.
A violation of the Right to Speedy Trial can only occur if there is an actual delay in
criminal proceedings. Barker, 407 U.S. at 529-530. There is no definitive length of time which
constitutes a violation. Id. However, any delay over one year is “presumptively prejudicial.”
Doggett v. U.S., 505 U.S. 647, 652 (1992).
In the case at hand, there has been an actual delay. R. at 4. On November 14, 2014, Mr.
Walsh pled guilty to bail jumping. R. at 3. He was not sentenced for this charge until December
28, 2015. R. at 3. Since Mr. Walsh’s sentence was delayed for over a year, the delay was
presumptively prejudicial. See Doggett, 505 U.S. at 652; see also R. at 4. Thus, the first Barker
factor is satisfied.
ii.
The delay was caused by the government.
4
See Barker, 407 U.S. at 532. See also Burkett, 826 F.2d at 1211; Peters, 349 F.3d at 850; Reese, 568 F.2d at 1253;
Rothrock, 20 F.3d at 711; Perez, 793 F.2d at 253-254.
23
The next step in the Barker analysis is to determine who caused the delay. See Barker,
407 U.S. at 529-530. “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.” Doggett, 505 U.S.
at 657.
This factor weighs heavily against the government if it intentionally or with negligence
caused a delay in order to “gain some advantage over the defendant.” Id. at 656. This Court
does, however, recognize reasonable delays, such as overcrowded dockets. Strunk, 412 U.S. at
436.
Here, the government intentionally caused the delay. See R. 3. After Mr. Walsh pled
guilty to bail jumping, the government filed a request to have Mr. Walsh be treated as a
persistent felony offender. R. at 3. Under Apprendi v. New Jersey, this request is unconstitutional.
See Apprendi 530 U.S. at 486. In essence the government was requesting that Mr. Walsh’s
sentence be enhanced. See R. at 3. Because the government failed to provide proof beyond a
reasonable doubt to a trier of fact for enhancement, it acted unconstitutionally. See id.
As a result of this request, the pre-sentence investigation was delayed for seven months.
R. at 3. Ultimately, sentencing was delayed for a over one year. R. at 4.
Therefore this
unreasonable delay caused by the government satisfies the second Barker factor.
iii.
The Petitioner asserted his Right to Speedy Trial.
In order for the Right to Speedy Trial to be imposed, the defendant must assert the right
when the violation occurs. Barker, 407 U.S. at 528. Here, Mr. Walsh asserted his Right to
Speedy Trial on July 28, 2015, eight months after he plead guilty. R. at 4. Thus, Mr. Walsh
asserted the right when it was violated, satisfying the third Barker factor. Id.
24
iv.
The delay resulted in prejudice.
The fourth Barker factor requires a showing of either possible or actual prejudice.
Marion, 404 U.S. at 320. The Court permits a showing of possible prejudice because
“[a]ffirmative proof of particularized prejudice” can sometimes be difficult to prove. Doggett,
505 U.S. at 655; Barker, 407 U.S. 532. In Barker, the Court addressed the following interests
that are protected by the Right to Speedy Trial: (1) preventing oppressive incarceration; (2)
minimizing anxiety and concern of the defendant; and (3) limiting the possibility that the defense
will be impaired. Barker, 407 U.S. at 532.
Although Barker was focused on delays prior to the sentencing phase, all defendants, in
all stages of trial can be harmed by delays. Id. at 533; Klopfer, 386 U.S. at 222; see Marion, 404
U.S. at 320; see also Juarez-Cares v. U.S., 496 F.2d 190, 192-193 (5th Cir. 1974); Reese, 167
F.3d at 305.
Here, Mr. Walsh has been harmed in the following ways: loss of concurrent sentence,
increased or worsened conditions in current sentence, loss of rehabilitation, anxiety and undue
hardship in the post-conviction proceedings. R. at 4. Additionally there are societal interests at
stake, if this Court permits the government to delay in the manner it has with Mr. Walsh.
LOSS OF CONCURRENT SENTENCE AND WORSENING CURRENT SENTENCE
In instances where the defendant has multiple charges, especially in related matters, the
goal is to have concurrent sentences in order to avoid unreasonable punishments. Strunk, 412
U.S. at 437 (citing Smith v. Hooey, 393 U.S. 374, 377 (1969)). However, the possibility of
concurrent sentences “may be lost forever” if there is an unreasonable delay. Strunk, 412 U.S. at
437. In addition, delays can cause an increase in prison time or worsening of other conditions of
sentencing. Smith, 393 U.S. at 378.
25
Here, actual prejudice was present when Mr. Walsh lost the opportunity for concurrent
sentences and was required to serve consecutive sentences, totaling twelve years. R. at 4. As
these charges were related, the sentences could have been at least partially concurrent. See id;
see also Strunk, 412 U.S. at 437. Therefore, Mr. Walsh suffered actual prejudice due to the delay
in the sentencing phase.
LOSS OF REHABILITATION
Delays in the criminal proceeding are detrimental to defendant’s rehabilitation. Barker,
407 U.S. at 520; see Strunk, 412 U.S. at 439; Smith, 393 U.S. at 379. “While waiting during the
sentencing phase of trial, as with waiting for guilt-determination phase, a prisoner in custody is
typically held in a jail, a facility NOT designed for extended stays.” Marie Gottschalk, Bring It
On: The Future Of Penal Reform, The Carceral State, And American Politics, 12 Ohio St. J.
Crim. L. 559, 581 (2015). Jails are prone to overcrowding, violent rioting and “destructive to
defendant’s character.” Id; see Gottschalk, 12 OHIO ST. J. CRIM. L. at 581. In addition, jails do
not have the proper “medical facilities, programs, and security resources to meet the needs of
inmates serving sentences counted in years, not months or weeks.” Id.
Compare this to prisons, which have higher security measures, more resources for
rehabilitation, easier access to medical facilities and programming to fight against “inmate
idleness.” Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1686 (2003). Only
about 12% of jail-inmates are able to participate in rehabilitative and betterment programs,
compared to nearly half of all of the state and federal prison inmates. National Center of
Addiction and Substance Abuse at Columbia University, Behind Bars II: Substance Abuse and
America’s Prison Populations, p. 52 (Feb. 2010).5
5
http://www.centeronaddiction.org/addiction-research/reports/substance-abuse-prison-system-2010
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Clearly, when a defendant is stuck in a jail, he or she has less of a possibility of being
rehabilitated. See R. at 4; see also Gottschalk, 12 OHIO ST. J. CRIM. L. at 581. Such as here,
where Mr. Walsh lost the opportunity to participate in a rehabilitation or betterment program
while waiting for sentencing. R. at 3-4. This also resulted in the loss of opportunity for a
conditional release. R. at 4, 10. Thus, Mr. Walsh has suffered actual and possible prejudice in
violation of his Right to Speedy Trial.
ANXIETY, UNCERTAINTY, AND UNDUE HARDSHIP
Delay can cause emotional stress due to the uncertainties of receiving a longer sentence
than or consecutive to the one presently served. Strunk, 412 U.S. at 439 (citing Smith, 393 U.S. at
379). Some courts find the anxiety of jail-inmates as normal and cannot be cured by a speedier
process. Carpenter, 781 F.3d at 614-615.
However, the uncertainty of a future sentence, coupled with the other results of delay,
such as loss of concurrent sentences and loss of opportunity of rehabilitation, is sufficient to
establish actual prejudice under the Barker factors. See Hon. Michael A. Wolff, Evidence-Based
Judicial Discretion: Promoting Public Safety Through State Sentencing Reform, 83 N.Y.U. L.
REV. 1389 (2008).
In the case at hand, Mr. Walsh has suffered anxiety and undue stress throughout the year
long delay. See R. at 4, 10. The anxiety goes toward Mr. Walsh’s inability to participate in the
court-ordered treatment program, which would have provided him the opportunity for
conditional release. R. at 10. His incarceration in jail resulted in the loss of rehabilitation and
caused anxiety beyond the “normal” anxiety associated with incarceration. See id; see also
Carpenter, 781 F.3d. at 614-615. Therefore, the anxiety suffered, coupled with the other
prejudices, resulted in actual prejudice against Mr. Walsh in violation of the Sixth Amendment.
SOCIETAL INTEREST IN SPEEDY PROSECUTION.
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The Court will weigh the interests of a defendant against that of society’s as a whole.
Barker, 407 U.S. at 419. The societal interests are (1) keeping costs low and (2) minimizing
recidivism. Id., 407 U.S. at 527. Inmates who participate in rehabilitative and betterment
programs help reduce the rate of recidivism and the amount of time served. See Behind Bars II at
5. Since the vast majority of jails lack rehabilitative and betterment programming, jail-inmates
are more likely to be repeat offenders and serve longer sentences. See id. This not only increases
costs but also increases recidivism. See Barker, 407 U.S. at 527.
In looking at Mr. Walsh’s case, both the costs to society and the risk of recidivism have
increased as a result of this delay. See id; see also R. at 4. The costs will increase because Mr.
Walsh’s incarceration was increased from five years to twelve years. R. at 4. Even the risk of
recidivism increases because of the lack of betterment programs in jail. See R. at 4, 10; Behind
Bars II at 5. This is outcome goes against societal interests. See Barker, 407 U.S. at 527.
2. Dismissal is not the only judicially created remedy that can be implemented
in the Right to Speedy Trial violations during the sentencing phase.
The Barker standard for violation is “flexible” but the remedy is stringent. Strunk, 412
U.S. at 438. According to Barker, the only remedy for such a violation was dismissal. Id. Unlike
Barker, the right is being invoked after a guilty plea. State v. Allen, 505 N.W. 2d 801, 803 (Wis.
App. 1993) (citing Perez, 793 F.2d at 252-253); see Brewer, 58 ARK. L. REV. at 699. Prior to
conviction, the presumption of innocence is harmed by the delay and can only be cured by
dismissal. Perez, 793 F.2d at 252-253; see Brewer, 58 ARK. L. REV. at 699. However, the
“status” of the defendant changes when he/she is convicted – making a dismissal an improper
cure. Perez, 793 F.2d at 252-253; see Brewer, 58 ARK. L. REV. at 699.
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Since Barker’s requirement for dismissal was a judicially created remedy, another
remedy can be created by this Court when it comes to violations in the sentencing phase. See
Strunk, 412 U.S. at 438. In the case at hand, a potential remedy to the Right to Speedy Trial
violation would be to not require Mr. Walsh “to serve the entire sentence imposed.” Brewer, 58
ARK. L. REV. at 699 (citing Burkett, 826 F.2d at 1222). Instead, the incarceration during the
delay could be credited as time served. Allen, 505 N.W. 2d at 803.
Another solution would allow Mr. Walsh to serve concurrent sentences, rather than
consecutive ones. See Brewer, 58 ARK. L. REV. at 699 (citing Burkett, 826 F.2d at 1222). Each
possible remedy would cure the violation in the sentencing phase, without resulting in dismissal
of guilty individuals. See Brewer, 58 ARK. L. REV. at 699. Since other remedies can be
implemented for violations of Right to Speedy Trial in the sentencing phases this court should
have no fear of dismissal for guilty individuals. See Smith v. U.S., 360 U.S. 1, 9 (1959); see also
Brewer, 58 ARK. L. REV. at 699 (citing Burkett, 826 F.2d at 1222).
Therefore, this court should interpret the Sixth Amendment Right to Speedy Trial as
protecting defendants from the moment of arrest and/or charge until the party is sentenced.
CONCLUSION
For the abovementioned reasons, the decisions of the Supreme Court of Setonia should be
reversed.
Respectfully Submitted.
Counsel for Petitioner
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