17. Dismiss for Delay in Prosecution
The following sample motion to Dismiss for Delay in Prosecution must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.
TO THE COURT AND THE DISTRICT ATTORNEY: PLEASE TAKE NOTICE that on the date and time noted above or as soon thereafter as counsel may be heard in the courtroom of the above-entitled court, the defendant will move for an order to Dismiss for Delay in Prosecution.
This motion is made on the ground that the Prosecution team intentionally and/or unreasonably delayed proceedings and Defendant was prejudiced by the delay.
The motion will be based on this Notice of Motion, on the attached memorandum of points and authorities and filed herewith and such supplemental memorandum of points and authorities that may be hereafter filed with the court or stated orally at the conclusion of the hearing, on all papers and records on file in this action and on such oral and documentary evidence as may be presented at the time of the motion.
By Larry Lawyer,
Attorney for Dave Douglass
STATEMENT OF THE CASE
The following summary is based on the available records, including reports provided in discovery and the Court’s files.
On or about April 5, 2008, Defendant was arrested and released without an appearance date being set. The citation issued contains a signature line following the statement, “Without admitting guilt, I promise to appear at the time and place indicated below.” On the signature line is simply printed, “In Custody” and no date or time is given.
A Complaint was not filed until April 29, 2008, and Defendant was not notified of the Complaint until he was re-arrested on August 5, 2015.
During the delay of more than seven years, Defendant lived an open and public life. He reported his correct address on his tax forms, employment forms, and other records that were readily available to law enforcement. Law enforcement could have easily located and arrested Defendant, but they chose not to do so until more than seven years after the Complaint was filed.
MEMORANDUM OF POINTS AND AUTHORITIES
A DEFENDANT’S CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL ATTACHES AFTER THE FILING OF A COMPLAINT
The Sixth Amendment to the United States Constitution provides in part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . .” Article I, section 13, of the California Constitution states that: “In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial. . . .” (See also Penal Code §686).
Our Supreme Court has held that, “[t]he right to a speedy trial is a fundamental right granted to the accused and . . . the policy of the law since the time of the promulgation of Magna Charta and the Habeas Corpus Act. . . The function of this vital constitutional provision is to protect those accused of crime against possible delay, caused either by willful oppression, or the neglect of the state or its officers.” (Jones v. Superior Court (1970) 3 Cal. 3rd 734, 738)
The California Constitution provides that an “accused” shall enjoy the right to a speedy trial. Our Supreme Court has held that a defendant becomes an “accused” when the complaint or indictment is filed. (People v. Martinez (2000) 22 Cal. 4th 750, 767).
The delay in the instant case is excessive and was avoidable. After the Complaint was filed and a warrant was issued, there appear to have been no reasonable steps taken to move the matter forward.
IT IS IMMATERIAL WHETHER A DELAY IN PROSECUTING A CASE IS NEGLIGENT OR PURPOSEFUL
Evidence of deprivation of due process sufficient to warrant dismissal does not require a showing of purposeful delay by the prosecution. Prejudicial delay caused by negligence of law enforcement agencies or by the prosecution is sufficient to deny a defendant the right to due process. (Scherling v. Superior Court (1978) 22 Cal. 3rd 493, 507; Penney v. Superior Court (1972) 28 Cal. App. 3rd 941, 953).
Even if the delay is merely the result of administrative malfeasance or simple negligence on the part of the state or its officers, it is clear that there must, nonetheless, be a dismissal. (Barker v. Wingo (1972) 407 U.S. 514).
AN UNJUSTIFIED DELAY IN ARRESTING DEFENDANT CONSTITUTES A VIOLATION OF THE DUE PROCESS IF THAT DELAY PREJUDICES THE DEFENDANT’S ABILITY TO DEFEND HIMSELF
Delay prior to the arrest of a defendant may give rise to a due process claim under the Fifth Amendment. (U. S. v. Lovasco (1977) 431 U.S. 783, 788-789). The court in Scherling v. Superior Court (1978) 22 Cal. 3rd 493, 507, held that even an unintentional delay can be the basis of a denial of a defendant’s due process rights:
We do not intend to imply that only a deliberate delay by the prosecution for the purpose of prejudicing the defense may justify a conclusion that a defendant has been deprived of due process. The ultimate inquiry in determining a claim based upon due process is whether the defendant will be denied a fair trial. If such deprivation results from unjustified delay by the prosecution coupled with prejudice, it makes no difference whether the delay was deliberately designed to disadvantage the defendant, or whether it was caused by negligence of law enforcement agencies or the prosecution. In both situations, the defendant will be denied his right to a fair trial as a result of government conduct. [Citation omitted.] Thus, although delay may have been caused only by the negligence of the government, the prejudice suffered by a defendant may be sufficient when balanced against the reasons for the delay to constitute a denial of due process.
If not intentional, the delay in this case was, at a minimum, caused by negligence, and Defendant was prejudiced by the delay. During the extensive delay, Defendant continued to reside openly and notoriously thereafter, but law enforcement did not choose to pursue or arrest him. During that time, Defendant resided in Kern County and he could have easily been located should the Prosecution wish to pursue the charges against him.
Had Defendant’s prosecution proceeded with haste he could have possibly presented evidence to prove that he was not the driver of the vehicle (which was found parked), presented evidence to disprove the offense (such as testimony as to his level of sobriety), or presented other such exculpatory evidence. However, such evidence has been lost, or at least deteriorated, by the passage of time.
In People v. Hill (1984) 37 Cal. 3rd 491, the Supreme Court stated that fading memories of prosecution witnesses that prevent adequate cross-examination on a material issue may constitute sufficient prejudice to warrant a finding of denial of due process. Likewise, in Ibarra v. Municipal Court (1984) 162 Cal. App. 3rd 853, the Court of Appeal stated that the fading memory of the defendant must be considered by the court in determining prejudice.
In Doggett v. U.S. (1992) 505 U.S. 647, the United States Supreme Court examined the cognizable categories of prejudice that could result to the defendant:
We have observed in prior cases that unreasonable delay between formal accusation and trial threatens to produce more than one sort of harm, including… “the possibility that the [accused’s] defense will be impaired” by dimming memories and loss of exculpatory evidence. . .. 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.”
As our Supreme Court explained in Jones v. Superior Court (1970) 3 Cal. 3rd 734, 740:
Petitioner was clearly prejudiced. The most obvious prejudicial effect of the long pre-arrest delay was to seriously impair his ability to recall and to secure evidence of his activities at the time of the events in question. Delaying the arrest of the accused may hinder his ability to recall or reconstruct his whereabouts at the time the alleged offense occur.
In misdemeanor cases, prejudice must be presumed for delay more than a year and dismissal is required without any further showing (Serna v. Superior Court (1985) 40 Cal. 3rd 239, 252; see also Stabio v. Superior Court (1994) 21 Cal. App. 4th 1488).
EVEN MINIMAL PREJUDICE MUST BE BALANCED AGAINST THE JUSTIFICATION FOR THE DELAY
Even if the prejudice to the Defendant appears to be minimal, the court must conduct a hearing to balance the prejudice against the justification for the delay. (Garcia v. Superior Court (1984) 163 Cal. App. 3rd 148 (1984); Ibarra v. Municipal Court (1984) 162 Cal. App. 3rd 853).
In the instant case, there appears to be no reason for the extended delay. The Prosecution simply did not take actions to move the matter forward.