*1 (сid:127) was also Union of which cumstances practical mat- Furthermore, as a aware. company’s abil- that a ter, would seem financial ity detrimental calculate consequences more is far a strike regarding speculation is its than liable mere results economic adverse employees. thinkWe its unionization are here involved the statements category proscribed I. within the n E., record sustains and that U. point.5 on this decision Board’s therefore, opiniоn, We are is sub there record on the entire "that supporting Board’s
stantial evidence (cid:127) dismissing complaint. Uni- order B., Corp. N. R. v. L. versal Camera L.Ed. 456 U.S. 71 S.Ct. Accordingly, petition ¿aside is Board’s order Denied. Kingdon Gould, Jr., Washington, Mr. (appointed by court), ap- D. C. pellant. Poliak, Attorney, Mr. Stuart R. De-
partment Justice, bar of the Supreme California, pro Court of hac by special court, vice leave of with whom Acheson, Atty., Messrs. David C. U. S. Q. Nebeker, Joseph Frank A. Low- ther, Attys., Asst. U. S. were brief, apрellee. Mr. MARSHALL, Appellant, Robert D. Dev- Charles C. lin, Atty., Asst. U. S. also entered an v. pearance appellee. America, UNITED STATES Appellee. Before Senior Circuit Edgerton, No. Judge, Washington Danaher, Judges. Circuit Appeals Court of States Circuit. District of Columbia EDGERTON, Judge: Senior Circuit Argued 12, 1963. Dec. government says, As the this case has Decided long history. Marshall was sentenced charged rape for a to have September been committed on was arrested October indicted November 1959. His third began July 8, 1963, resulted appeal. conviction that here following outline covers the eight years months some three between and this trial. the indictment Transport Clearings, Inc., Corp. N.L.R.B., F. 5. Cf. N.L.R..B. v. Union Carbide v. 1962); 1962). (5th (6th 2d F.2d 523-524 Cir. Cir. *2 120 July appeal, days, was not (1) to Feb- held from indictment 75 began. During year ruary this of trial over there when the following ap- delay were the continuances: illness of was caused Some assigned
pellant’s
and his need
counsel
(6)
days,
116
14 to
June
October
jury
prepare.
did
to
time
Though
trial had been set for
agree
aon
verdict.
July 16, on
12
trial date was
back
moved
to
8
October
“because
(2)
days,
of the first
71
from the end
summer
the
ity
schedule
the unavailabil-
February 2, 1960,
to the second
jurors
and witnesses.”
During
pe-
May 12, 1960.
trial on
(7)
days,
38
8 to
riod
were several continuances:
October
November
there
February
22
On October
from
19 to March
because
one week be-
days
assigned
pre-
the date set for trial and 45
new
counsel
time to
fore
needed
pare, April
appointed,
after
a co-defendant’s
counsel was
he
26 because
granted
prepare,
asked and was
counsel needed time to
leave
with-
ill,
experience
draw
2
because
had no
was
he
because
12
criminal law.
because a co-defendant’s counsel
He should not have been
engagement.
appointed
place.
capital
A
another
At
the close
the first
government’s
place
lawyer
begin
pleaded
is no
Mаrshall
for a
case
acquiring experience
rape.
prac-
with
assault
intent
tice.
(3)
12, 1960,
On
he
November
after
Trial was
November 15.
sentence,
had served six months of his
lawyer
appointed
Another
was
on Octo-
Marshall
guilty.
moved
vacate his
withdrew,
2
ber
for what
reason
appear,
days.
does not
within 6
A third
(4)
pending
The motion to
was
vacate
appointed
was
months,
During
16
till March
(8)
days,
67
1962 to
November
all
was
time
either
January 21,
1963. On November
38
prison
hospital.
or in a mental
In Jаn-
days
appointment,
after
counsel’s
he
uary, 1961, he was transferred
from
appellant’s request
at
moved
for more
Lorton,
serving
where he
his sen-
prepare.
time to
court
continued
tence,
to St. Elizabeths for treatment
January 21, 1963,
days
Legal
of a mental
illness because the
appear
later.
It does not
that so
Psychiatric
certified that
Service
or asked. On
needed
De-
On
insane.
1961 counsel
14, 1962,
cember
counsel asked and was
him on his
granted leave tо withdraw
because
motion to vacate. On March 13 and
family
“serious
illness
be-
again
April 11, 1961, hearing
on his
was behind in
cause he
other
work.”
office
request
motion was
continued
very
spent
said he had
time
little
allow more time for mental examination.
days
on the case. Five
later
motion
The
ruary
to vacate was heard on Feb-
again appointed new counsel.
16 and March
1962. On March
guilty plea
January 10, 1963,
appellant pro
On
was vacated
se
under 28 U.S.C.
moved
tо dismiss
indictment for lack
of a
(5)
On or about March
(9)
days, January
January
21 to
pellant’s
July
third trial was set for
prosecutor
occupied
1963. The
16, 1962, and he was committed to St.
with another case.
examination,
Elizabeths for mental
al-
though he had been there for
(10)
January
treatment
On
defense
since
1961. He remained there
ill
counsel was
Instead
influenza.
until June
granting
when
was re-
continuance,
a reasonable
jail
competent
turned to
two,
such as a week or
the court cоn-
trial. But his third and last
days,
tinued
the case for
till March
sulting in the
conviction now here
July
April 22,
days,
1 to
8 because
(11)
11 to
government
February 13,
list
a new
was needed.
1963. On
beyond March
for a continuance
asked
May 21, 1963, appellant had made
On
complaining witness was
third
dismiss
motion to
*3
expecting
March. Trial
child
late
a
speedy
for lack of a
trial.
appears,
April 22.
far as
for
As
July 8, 1960,
Until
was sen-
when he
February.
might
it
have been held
trial,
tenced after his second
May
April
(12)
days,
22 to
was out
From
on bond.
that time
ill.
counsel was
Government
he
December
was either
jail,
Lorton, or
District of Columbia
at
April 24,
his
On
renewed
October, 1962,
he
at St. Elizabeths.
for
motion to dismiss the indictment
$1,000
asked that bond
set at
but
be
speedy
lack
aof
trial.
$5,000,
it
District Court set
(13)
days,
to
could not
On
meet.
December
On
counsel asked leave
defense
pending appeal
he was released
to
withdraw.
said the defendant
by
on bond of
order of this court.
$500
* * *
enraged
“highly
had become
“talking
law”,
English,
If we
not
werе
charged
I
and
that
that was
he believed
suggested
it would
man
not
that a
against
conspiring with others
him to
years
eight
who
tried three
bring about his conviction.” Counsel
“speedy”
months after indictment had a
Eliza-
also informed
court that a St.
trial. We
to
Marshall
are
decide whether
Marshall
beths doctor “considers Mr.
still
had a
trial in
sense
the technical
very seriously ill”,
questioned
his
given
*
*
*
the law has
Sixth
“ability
cooperate
client’s
right.
he did
Amendment
We think
consulting ap-
Without
the defense”.
not.
pеllant
informing him that
or
counsel’s
On March
motion
when his
would
more months of
withdrawal
cause
to vacate his former
delay,
granted
request,
court
counsel’s
granted,
Eliza-
Marshall had
in St.
July 1,
been
continued the case to
year.
a
beths
treatment more than
pointed
lawyer,
fifth
who withdrew
oc-
eight
There was or should
been no
days
have
later
no recorded reason.
casion to
him to
commit
St. Elizabeths
Finally,
lawyer,
a sixth
again
90-day
examination
order
put
who
told the court he сould
his
competent
whether
determine
client on the stand or
communicate
even
trial,
previous com-
to stand
effectively
him
and that he “blacks
given
ample
hospital
mitment had
out”,1
had
tried the case.
It
been eon-
provides:
“When-
going
D.C.Code
1. The Court:
Is
defendant
*
**
imposition
prior to
ever
take the stand?
* *
*
appear
to the
it shall
sentence
No,
Honor.
I
Harris:
Your
Mr.
observations,
court from the court’s own
put him on the
I have been
can’t
really
stand.
primа
from
facie evidence submitted
or
communicate with him.
unable to
* *
*
court,
the accused
He blacks out.
mentally incompetent
unable
so
put
as
Court:
The
wanted
proceedings
him
understand
he wanted
to state that
record
defense,
properly
to assist
own
going
or
stand, if
to take
to take the
he was
commit-
appointed.
order the accused
you
court
I knew
were
the stand.
* * * for
and ob-
examination
ted
appointed, Your
I am
Mr. Harris:
* *
we are
servation
Because
can take the
I doubt
that he
Honor.
versing
grounds,
need not
on other
we
stand,
been unable
Your Honor. He has
plain
requir-
it was
error
decide whether
give
me information.
ing
permit
for the
reversal
I am
interested
Court:
proceed
a new
further without
going
the stand.
as he is not
to take
compe-
investigation
going
of the defendant’s
stand I
to take the
If he were
elapsed since
months
tence. Thirteen
had
record for
like to have it on the
would
was сom-
had
that he
your
it
been determined
protection.
petent.
you, Your Hon-
Harris:
Thank
Mr.
or.
opportunity
judge
day
put
upon
determine his condition.
to»
then
case
(5)
delay (paragraph
day
months’
basis.”
F.2d
three
at 788 Marshall1
above)
times,
new commitment
but
from his
moved not once
three
in Janu-
ary, April,
May, 1963,
hospital
1962 to his return
on March
to dismiss
14, 1962, as
hospital
for lack of a
trial,
competent
apparent
not have
If
should
His
motions
no
effect.
op-
arbitrary,
five
occurred.
months’
was not
pressive or
circum-
vexatious
trials were
first two
Since
Smith,
stances
no means follows-
short,
have been foreseen
it should
longer delay
arbitrary,
that far
was not
only
three
which took
his third
oppressive or vexatious in the circum-
days,
case
short. Since the
would be
*4
stances of this ease.
the
old in June
was 31 months
Delay
exceedingly prejudicial
to-
arranged
cal-
its
have
court should then
illness,
Marshall.
Treatment
mental
postponing
the
endar so as to avoid
undergoing
which
had been
at St.
116-day de-
Most of
the
October.
months,
interrupted
Elizabeths, was
lay
paragraph (6) should
described in
jail
while
in
and
he waited
for his third
have been avoided.
relatively
final
sec-
trial. But that
is a
38-day delay
para-
in
described
The
ondary
Delay appears
have
matter.
graph (7),
8 to November
from October
In
been fatal
to Marshall’s defense.
15, 1962,
in-
court’s
resulted
the
at his first
he testified effec-
assignment
appropriate
of counsel.
tively
suрport
in
of his
contention
avoided, also,
much
should have
trial,,
prosecutrix
the
consented.
In that
delay
67-day
para-
in
the
described
June,
the
did not convict him.
In
graph
42-day delay
(8),
de-
the
most
he was found at St. Elizabeths
paragraph (10),
in
and most
scribed
competent
be
in
to stand
But
trial.
42-day delay
paragraph
in
the
described
July,
more,
he was tried
when
once
delays
in
The short
described
according
undisputed
to the
statements
paragraphs
(12)
(9)
no
call for
of his counsеl he could not communicate
except that
comment
Marshall did
effectively and was not
to take the
able
cause them.
stand. This time he was convicted.
In
Smith v.
118 U.S.
Because Marshall’s Sixth Amendment
App.D.C. -,
which
right
speedy
denied,
to a
trial was
the
February
court in banc decided
judgment of conviction must be vacated
speedy
question
we held that
the
and the indictment dismissed.
delay
turns on whether “the
has been
the-,
Reversed, with directions to vacate
arbitrary, purposeful, оppressive or vexa
indictment.,
judgment and dismiss the
(331
787.) By
tious.”
F.2d at
test
speedy
Marshall did not
have
trial.
WASHINGTON,
Judge:
Though
delay
Circuit
purposeful
the
was not
any meaningful sense, much of it was
concur,
I
for the reasons set
be-
out
arbitrary,
aggregate
low,
it was
expressed
Judge
in the view
Ed-
oppressive
gerton’s
indictment,
and vexatious.
opinion that
charging appellant
rape
must be-
We held that Smith was not denied
appellant’s
dismissed because
constitu-
speedy
trial. He was tried five months
right
tional
speedy
to a
trial was de-
after indictment. Marshall
was tided
nied.
indictment,
after
months
32 months after
plea
guilty,
emphasize
he moved to
vacate
first claim
almost 16 months after a
that his
date was
trial was not
con-
set,
almost
only
months
stitutional
after
sense relates
to events
competent
occurring
found
to stand
Court, “upon
after
District
Smith,
“Alerted
testimony”
claim the basis of
psy-
of two
* * *
of denial of
12,1962,
on
chiatrists, allowed him
given
guilty,
pursuant
-to
his
the summer
withdraw
months
to the re
neаrly
years
earlier,
schedule,
jurors
the lesser
duced
two
summer
and that
intent
(included)
can be
purpose.
of assault with
available
offense
made
for this
Acting Super-
rape;
generally
after
Witnesses also can
commit
be made
Hospital,
by subpoena
testimony
Elizabeths
of St.
available
or
intendent
their
by deposition,
be
appellant had been committed
taken
and in
ab
motion,
persuasive showing
own
some
his
sence
mental examination
contrary,
reported
the trial
on June
should
occurred
have
Hospital’s
-opinion
sure,
staff
of the
summer months. To be
mentally
competent
pellant
did not ask
the District Court
trial;
appoint
and after
new counsel for him2 until
August
ap
to the United
leased
counsel was
jail
pointed
August
Marshal
States
returned
Notwithstanding this, I
.and tried.1
think that
postponement of trial until
finally
The trial
occurred
justified.
was not
shown
rec
year
more than a
after
ord
us
before
does not
that after
indicate
bringing about this
fаcts
1962. The
appointment
counsel asked for or re
chronologically
out
are set
*5
quired nearly
prepara
two months for
attached
appendix.
that
I
conclude
must
tion.
delay in trial
in
this
circumstances
the
year
prejudicial,
for
than a
was so
more
go fully
I need not
into
matter of
the
(cid:127)oppressive,
amount
and
as to
vexatious
delays beyond
8,
the
1962,
of
Amend-
a violation
Sixth
actually
trial of
the case
commenced
right
to a
ment
July 8,
on
of
Some
them were
perhaps unavoidable,
post-
such as the
with
allowed
District Court
When the
ponement
July
July 8, 1963,
1 to
lesser
the
drawal of the
appear
and some
to be attributable to
1962, it set
March
in
offense
included
appellant
the
or to the various counsel
July
following
for trial
the case
him. But
the
con
trial was
However,
the
pro
appellant
January
1963,
10,
on
se
1962,
by
until October
the court
moved to dismiss the indictment
noted,
Assignment Commissioner
as the
because,
alleged,
him
as he
had not
and the
summer schedule
because of the
guaranteed
by
had the
unavailability
jurors and witnesses.
Constitution,
subsequent
and
mo-
like
appears.
explanation
I think
further
No
by
April 24,
tions were filed
him on
delay
for
be condoned
cannot
1963. Even assum-
appellant
given.
reasons
ing arguendo, contrary to
I
what
have
charge for
the death
a
which
tried
said,
delay
January
before
imposed.
might
The District
penalty
satisfactorily explainable
entirety,
in its
by
required
Court
is
Fed.R.Crim.P.
receipt
I think that the
mo-
proceed
give preference to
January 10, 1963, protesting
tion on
ings
particularly
to one
I
think
delay
grounds, required
on constitutional
type,
since
where
necessary
the District Court to take the
.appellant appears
either
been
have
steps
hospital.
judicially
jail
to see that
mental
then set for
or in a
We
during
place
day,
take
criminal cases
tried
know that
are
accept
says:
being
June
1962 as
brief
the critical
As
date.”
“In view
the fact that until June
1962, Marshall was at St. Elizabeth’s
examination,
appar-
psychiatric
can
Before
and that
time
argued
finding
present
ently represented
a
that until
counsel.
retained
lawyer
stated,
competence
and,
was made
He dismissed that
Marshall was
as
August
subject
retrial, appellant
willing
sought
is
new counsel.
ability
possible.3Inst
had the
at that
time
as soon thereafter
or
ead,
effectively.
postpone
His loss of that
communicate
ability
successive
there were
clearly indicates,
11, April
prior
to trial
ments until
finally
showing
22, May 13, May 14,
the absence of
the con-
given
trary,
prejudice
July
Although
reasons
that substantial
jus
pellant’s
postponements
have
defense resulted
the various
delay
postponement
his trial occurred on
reasonable
before
tified
perhaps
in
in most or
all
unreasonable, and
stances, I
it was
think
indict-
I
concluded that the
Since have
appellant’s constitutional
in violatiоn of
dismissed, I do not
ment must be
reach
rights,
postponements for the
to order
any
points raised.
of the other
length
of time
at least
allowed
Washington’s
Judge
(to
Appendix
de
three instances where the
opinion)
my
layed
month.
than a
more
Act-
1962: Letter from the
view,
should
time have
the case
each
ing Superintendent
Eliza-
day-to-day basis,
of St.
put
fn.
been
on a
see
informing
Hospital
Dis-
beths
so that unreasonable
would
opinion of
King
that in the
trict Court
occur.
Cf.
v. United
Hospital’s staff, appellant was
U.S.App.D.C.
cert.
competent”
“mentally
denied,
79 S.Ct.
U.S.
although
that,
including
he suffer-
(1959),
L.Ed.2d
the dissent
disease,
crim-
ed from mental
concurred.
he was
inal
with which
offense
my
delay is
It
also that
view
by him,
charged,
if committed
prejudiced
not shown not to
have
product of that disease.
was not a
defending
at his
defendant
himself
*6
original-
date,
12,
2.
Trial
June
1962:
States,
trial. Cf. Williams v. United
by
July 16, 1962,
ly
for
U.S.App.D.C. 51,
250 F.2d
1962,
15,
District Court on
took
at his first
the stand
to
time it allowed
hung jury.
resulted in a
At
guilty,
was
withdraw his
July
1963,
unable,
ac-
8,
held
he was
1962,
be-
сontinued to October
cording
to
of his
statements
summer schedule
cause of “the
counsel,
effectively
to
communicate
unavailability
jurors
and the
testify.
report
thus to
Since the
witnesses.”
Acting Superin-
District Court
August 17, 1962: First
counsel
3.
Hospital on
tendent of St. Elizabeths
ap-
(#1)1 appointed
represent
to
11, 1962, stated
that
pellant.
opinion
Hospital
of the
that “Mar-
Staff
mentally competent
shall is
allow
to understand
4.
1962: Counsel
#1
proceedings
of lack of
of the
nature
ed to withdraw because
properly
prep-
law,2
experience
him and to assist
with
defense,”
assumption
aration of his
an
is
to No
continued
date
required
present purposes
26,1962,
that
neces-
vember
because
comparable
appel-
3.
situation
Smith v.
1.
Since the date
U.S.App.D.C.-, -,
previously
bad
bad the services
lant
(1964),
attorneys.
the District
five other
placed
day-to-day
Court
basis,
the case on a
Although
frequently appoints
open
promptly
2.
this court
“аs
as an
tried
experience
ing developed
counsel without
to
with a court and counsel
persons
accused of crime before
this
available.” The Smith case is of course
ways
Judge Edger-
distinguishable
court,
capital cases,
also
in other
even
one, including
opinion
“He
states of Counsel
facts
ton’s
#1:
(between
trial)
appointed in the
there
indictment and
should not have been
only
place.
capital
place
A
no
about five months and thаt
lawyer
begin acquiring experi-
for a
did not
include the three summer
practice.”
months.
ence in criminal
note that
sity
ill
appointing
counsel for
Counsel
new
#4
flu.
appellant.
ap-
February 13,
1963: Trial
con-
1962: Counsel
date
5. October
#2
represent appellant.
April 22, 1963,
pointed
at Gov-
request
ernment’s
because the
with-
1962: Counsel
6. October
#2
complaining witness was to have
(reason
disclosed) and
drawn
during
a child
March.
appointed.
Counsel #3
April 22,1963:
Trial date continued
by aр-
15, 1962: Motion
7. November
because Govern-
pro
appoint
pellant
se to
other
ment counsel was ill.
him3 and to extend
counsel for
May 13,
Trial
1963:
date continued
time
because Counsel
No-
frcm
Trial
continued
date
engaged
in an-
#4
vember
other court.
1963, on motion of Counsel #3
May 14,1963:
called;
Case
on oral
stating
wanted
motion, Counsel
was allowed
#4
attorney
continuance because
charges
to withdraw because of
prepare.
more
should havе
time
by appellant
conspir-
Counsel
8. December
1962:
#3
ing
bring
about
con-
ill-
of serious
withdrawn because
properly
viction and would not
de-
family
be-
in his
and was
ness
appellant.
fend
Counsel #5
Appellant
work.
hind in his office
pointed and trial date continued
requested
also
other counsel
had
presumably
(see above).
on November
newly appointed
allow
time
prepare.
counsel to
Counsel
9. December
1962:
#4
appointed.
May 22,
1963: Counsel
with-
#5
(reason
appear)
drawn
does
January 10,
dis-
1963: Motion to
LO.
appointed.
and Counsel #6
by appellant
filed
miss indictment
Trial
1963:
date continued
alleged
pro
denial of
se for
July 8, 1963,
order
speedy trial.4
jurors
new
Motion to dis-
1968:
*7
be obtained and their names
argument
denied, following
miss
appellant.
served on
by counsel.
July 8,
Trial
20.
1963.
commenced.
January
Deposition
21,1963:
Dr.
of
12.
Julian, testifying
Jury
July 10,
appellant
behalf of
21.
1963:
on
found
taken,
charged
guilty
rape.
pellant,
and trial
as
set
of
that date continuеd
Judgment
of
1963:
convic-
the
because
tion
and sentence fixed
entered
engaged
Attorney
in
States
years.
period of 4
12
another trial.
(dissent-
Judge
DANAHER, Circuit
con-
Trial
1963:
date
contends, principal-
appellant
ing)
1963,
11,
: This
because
to March
handicapped
appellant
his
him
greatly
did
want
because
courts would
making appointments
appellant
rep-
did
lawyer;
the third
of counsel
representation
capi-
and “dis-
indigent
her
not want
defendants
of
resentation
charged”
they
as defense counsel.
her
to at-
must be confined
if
tal cases
torneys
experience
law.
in criminal
with
pro
Subsequent
on
dismiss
se to
motions
1963,
April
ground
rep-
on
attorneys appointed
filed
were
the
3. Three of
hearing
May 3,
on
prior
appellant
after
March
denied
resent
hearing
withdraw;
after
denied
permitted
on
argument
were
appellant
on June
he learned that
first after
facts;
another
him the true
fused to tell
unlawfully
pointed attornеys.2
ly,
Appellant’s
denied a
that he was
mo
own
disagreements
brought
tions,
a de-
without
his
or dissatisfac
involving
competency,
problems
tion with counsel and
his restored
of
termination
attorneys
jeopardy.
put
succession of
had occasion
twice
and was
largest
ed the
of whatever
share
of this
an
shows
record
The
occurred.
think
trial issue
on a
November
on
light
should be resolved
Jan-
charge
rape.
At his
of
of Smith v. United States.3
agree.
jury
failed
uary 1960, the
During
second
his
imрroper-
toAs
his contention that he
guilty
en-
plea
his
withdrew
ly
brought
to trial without an ad-
included
guilty
a lesser
plea
tered
judication
competency
of his
fol-
restored
commit
intent
with
of assault
offense
lowing
Elizabeths,
examination
at St.
motion
filed a
Appellant
rape.
thereafter
objection
be noted first that no
plea
to vacate
§
under U.S.C.
ground. Moreover,
raised on that
ground
he had been
guilty
unchallenged
has
court
held that “an
cer-
mentally incompetent
the time
at
hospital superintendent
tificate of the
hearing
After
**
*
necessity
obviates the
for fur-
granted
motion
his
Court
District
proceedings
4
question
ther
of san-
guilty
an order
plea
his
withdraw
ity.”
committing
appellant to
was entered
ex-
hospital
a mental
Elizabeths
St.
jeopardy,
As to his claim of double
acting superintendent
amination.1
proceedings which had
resulted
to the
1962 certified
first conviction on his
staff
Elizabeths
of St.
conclusion
charge of assault
intent to commit
mentally competent
appellant was
rape
reopened and
were
that conviction
and,
had been
to the extent
stand trial
own mo-
aside
suffering
from
as of
position
tion.5 He thus is in no
to com-
n “Anxiety
(Conversion
Fea-
Reaction
plain.6
alleged
tures),”
“was
offense
product
disease.”
this mental
not a
record
no error
before us discloses
affecting
rights.
discharge
I would af-
substantial
Since
St.
court-ap-
had had six
firm.
Elizabeths he
Flynn
States,
D.C.Code,
(1961).
5. Cf.
v. United
F.2d 29
24^301
(9
1954)
denied,
Cir.
сert.
348 U.S.
Actually
or other no less
one time
(1955).