*1 State, Respondent, Appellants.* Kwitek another, Argued
No. State 76. November 1971. Decided February 1, 1972. (Also reported 682.) in 193 N. W. 2d * rehearing denied, costs, April 10, Motion for without *2 appellants For the there brief David J. Hose Milwaukee, Kwitek, John P. H. Robert of Milwaukee, Crisp, Friebert for Donald attorneys, Cook Franke, C., Samson, & S. *3 and Friebert, Sutton Finerty, argu- & all Milwaukee, of counsel, and oral Hose ment Mr. and Mr. Robert H. Friebert. respondent argued by George For the the cause was L. Frederick, attorney general, assistant whom on attorney Warren, brief were Robert W. general, and McCann, attorney E. Michael district of Milwaukee county. single
Beilfuss, J. The issue whether defend- speedy ants were denied a trial.
Both the Wisconsin and the United Constitutions States provide speedy for a trial. I, 7 of the Wisconsin
Art. sec. Constitution reads: prosecutions [by “In all criminal or indictment infor- enjoy accused shall ... mation] speedy public trial . . . .” The to the sixth amendment Constitution reads: prosecutions, enjoy “In all criminal accused shall speedy public trial, to a and . . .” robbery committed question
The armed-masked in was April 24, 1967, on on were convicted and defendants July 23,1969. procedural material to a determination facts chronologically quite issue, presented in detail,
some are as follows: April question com- On 1967, the crime was complaint mitted. On June and warrant were issued for this offense. September
In on of 1967, the were arrested defendants robbery charge a federal of bank have in fed- been custody days time, except eral when since that for two large escape. were after an defendants against defend- October, first indictment aof ants for a was federal offense dismissed because they defendants; however, misnomer of one of the custody shortly held and rearrested thereafter. rep- appointed to An B. attorney, Surges, Richard indigents in federal On court. resent 1967, Surges, letter to November attorney county attorney, district notified the district prisoners and were were federal the defendants being county jail. further, He Waukesha held at the On defendants, demanded behalf of ap- were arrested and December the defendants county. They in Milwaukee peared state ap- indigent attorney, Surges, and the same found 12, 1967, On December pointed represent them. county county upon court of Milwaukee appeared in *4 pre- attorney, Surges, the motion of the defendants’ the January hearing adjourned liminary 1968. 4, was 12, day, the 1967, December defendants On the same county jail large Ozaukee and were at escaped the from guards escape During was days. one of two for apprehension up. After de- brutally quite beaten county jail placed in the Kenosha were fendants jail it was the most au- secure available to federal thorities. appear January
The defendants did for the preliminary hearing date the matter continued was January they appear until ary 10,1968; nor did Janu- attorney, Surges, date,
10th but their did. The fed- custody marshal, eral who had of the defendants requested produce in the state January both, January proceedings. for 4th and 10th request upon He refused to honor the an advice of attorney assistant because of es- States cape attempts security poor the defendants were risks. knowing Surges, appear Mr. the defendants would not persisted moving court, the state for a dismissal complaints delay beyond statutory period because of a hearing preliminary for de- without waiver granted motion to without fendants. The dismiss was prejudice. January complaint
On a new and warrant county au- were but not Milwaukee issued served thorities. January pleas guilty, both de-
On after robbery in federal court for bank fendants sentenced immediately escape. sent defendants were prison Leavenworth, Kansas, and their official federal custody Marshal
transferred from United States Attorney to the Gen- Eastern District of Wisconsin Bureau of Prisons. of the United and the eral against January a detainer filed de- 24, 1968, On Both defend- the warden of Leavenworth. fendants March detainer about were advised ants they ad- as chief of that as soon defendants testified Both police wrote of the detainer vised demanding than the trial. Other proof statements, no a letter there is such defendants’ or demand. *5 May to the federal Kwitek was transferred Crisp in Leav-
penitentiary remained Marion, Illinois. enworth, Kansas. a July Crisp prepared motion for and sent 22,1968,
On county of Milwaukee clerk of court demanding speedy trial. deputy August Wiener, district Ben
On J. attorney responded Milwaukee, follows: for as checking pending “I into matter of the cases am you against you the next and will advise within here procedure days we will take. to what several kindly your you advise what “In the meantime will arrange conveniently may more we pleas will so that be setting your on the calendar.” matters court for with the demanding again letter, Crisp responded to Wiener’s mention Kwitek. Wiener The letter did not 28,1968. October He replied letter on stated: to this acknowledge your letter with reference last will “This you trial on the sev- returning Milwaukee to stand against you. pending charges are that eral necessary papers to effectuate preparing “I am you advise I would meantime wish your but return your you plea wish, as to what definitely, if so me more you pending here. In one letter to the matters will be satisfactory your plea to the would be me that stated court. your you demanding advise what not I am you me then such inform if desire so plea information be but will hearing.” setting your for matters will aid prepared an affidavit 1968, Wiener December On 'prosequendum produce corpus ad habeas for and a writ Crisp Leaven- from Marion, Illinois, from Kwitek nor documents were served These worth, Kansas. pre- days December Wiener later, Three filed. Cannon, David district J. for memorandum pared contained the county, which attorney following: you pre- I says. T heretofore advised memo “That for the return of necessary petition and writ
pared the each of the above then *6 named and learned individuals their be- convictions were vacated in the Federal Court they, in cause error indictment and that some therefore, were released from institutions from which seeking we were to have returned to Milwaukee for them trial.“ anything appears can do ‘It to me isn’t we that there get through proceedings until the federal authorities ” in the Federal Court.’ robbery 1968, convic-
In bank December of the federal charge, i.e., in tion aside was set because a defect federally alleged bank. was not the bank insured it January returned to 29, were 1969, On both defendants custody Dis- federal marshal for Eastern county in and held times trict of various Wisconsin at jails Ozaukee Kenosha, and Waukesha of three counties— (Port Washington). concluded time marshal this longer security risks. no unusual were by January both written 31, 1969, letter was On charges requesting be the Wisconsin defendants speedy of a trial. of lack dismissed because prepared and motion sent a Kwitek 3, 1969, March On county, judge Judge and Milwaukee circuit Coffey, requesting trial. Ben to Wiener April and were arrested 1969, both On county appearances Prelimi- court. in the initial made April nary de- 8th and both held on were examinations trial. circuit court for over to the bound were fendants arraigned April circuit in defendants were On July jury 9, set and a court Crisp April and both June, and between interval jury separately in trials federal retried were Kwitek period during jury this two trials had Kwitek court. They were a mistrial. resulted one the first by guilty court. federal resentenced found both during significant interval between also It is de- retrials the original and their federal sentence postconviction in fed- pursuing remedies fendants These challenging eral convictions. their federal to re- proceedings motions petitions treated included consid- which were consider and reduce their sentences challenge which denied, their ered and successful in the trials. resulted new motions, July response
On Judge Coffey, county, circuit court for charges because to dismiss the heard and denied motions of lack of a trial. jury The cases then waived
The defendants de- July 23, 1969, and court on heard imposed on guilty. Sentence was were found fendants investigation. presentence August after conviction on postconviction motion to set aside the A *7 heard and denied ground speedy trial was lack of a 23, 1970. May appeal taken June 1, was on 1970. This entitled to no an accused is can be doubt that There provisions of the Wisconsin by virtue of trial amend- (art. supra), 7, sixth I, sec. Constitution applicable Constitution made of the ment amendment.1 the fourteenth to the states de defendant must that rule in Wisconsin is The brought trial as a condition on for case be mand “that his charge on the of the requesting dismissal precedent constitutional ground been denied he his that has Kopacka 22 2d (1964), v. State Wis. speedy trial.” to a also, Commodore v. State See 2d 457, 126 W. 78. 460, N. 283; State 147 W. 2d 2d N. (1967), 33 Wis. 303. 164 N. W. 2d 41 2d (1969), Wis. Stoeckle persuaded that urged so, are not we Although to do we especially This is true demand rule. abandon should statutory provision for interstate the new (not effective in 1969 this 976.05, Stats. cases sec. defendant provides that substance which case), attorney of his the court notify prosecuting must 1 Sup. (1967), Klopfer Carolina 386 U. S. v. North See 1. Ed. 2d 18 L. Ct. place imprisonment disposition and demand final charges against of the him. self-serving
We do not believe the of the de- statement they police fendants that sent a letter the chief of May of 1967 while in Leaven- any worth, proof mailing without additional as to or re- ceipt compels finding of the letter, upon that review a demand clear, however, was It made at that time. Crisp July did make for a on demand trial his motion clerk sent of court. trial any by Crisp court found that demand made also applied finding to Kwitek. This will not disturbed be July and we conclude a on sufficient demand made 22,1968.
It appears dispute also without the defendants brought arrested before the state court on April seriously do not 2, 1969. The defendants contend any appear- there was undue between initial April July ance on 2, 1969, trial on and the July 22, 1968, We then be from calculate April period eight 2, 1969—a of about and one-half months. urged adopt “180-day
We are as it rule” now appears in interstate extradition sections stat- ute.2 section was not effective the date of This matter do not should of this and we believe be it applied though “180-day rule” even effective for *8 legislature detainers on intrastate that date. While the propriety, adopt a may, with numerical in cal- standard charges culating policy public a of as matter that should delay, trial after demand for and we do not be dismissed arbitrary can an and believe a court fix such standard upon judicial it base reasons. v. Ewell (1966),
In United States 120, 383 116, U. S. Sup. 15 L. 2d United 86 the States Ct. Ed. Supreme stated: Court
2 (1), Stats. 1969. Sec. 976.05
572 agree passage “We cannot be- the of 19 months original hearings later tween the and on arrests a violation of the Sixth indictments itself demonstrates guarantee guarantee speedy a Amendment’s of trial. This safeguard prevent oppres- important an and is sive incarceration concern undue anxiety prior trial, to minimize and public accompanying to limit accusation and long delay ability possibilities accused impair an will of large However, measure to defend himself. many safeguards provided an procedural of the ordinary prosecu- procedures accused, tion quirement for criminal designed pace. re-A to move at deliberate are a speed of unreasonable would deleterious have upon rights upon of the accused effect both ability society protect Therefore, this Court of itself. consistently ‘The been of the view that has necessarily speedy trial It is relative. is consistent rights public delays depends upon It secures circumstances. rights preclude the not It does defendant. justice.’ Humbert, 198 87. ‘Whether Beavers v. U. S. completing prosecution an un- . . . amounts rights depends upon cir- deprivation of constitutional purposeful or . The not be cumstances. . . must 361. oppressive,’ States, v. 352 Pollard U. S. orderly ingredient expedition not is essential ‘[T]he States, 360 10.” speed.’ v. United U. S. mere Smith supra, Kopacka State, page we stated: involving denial of a the issue of “. Each case . . although general facts, speedy own trial turns its ato to be that is rule right stated possible. reasonably A soon as is be tried as for lack of trial will be denied motion to dismiss orderly tried soon as the conduct as where accused permits. . . .” business Supreme recent United cite a Dickey (1970), v. Florida case, U. S. Court only accept not 2d We Sup. 1564, 26 L. Ed. Ct. Dickey must, applaud we it as opinion of but majority However, the facts statement law. an excellent drastically do be- different that we Dickey are so authority judgments compelling to overrule the lieve it is
573 Dickey in In this case. determinative are facts page stated as follows: “The petitioner record in this case shows was during seven-year available to the State at all times
period suggests before his no tenable trial. The State deferring reason for petitioner’s in trial the face of diligent repeated efforts the state motions prompt court In defense Police destroyed.” and 1966 to secure potential the interval two died and another witnesses alleged witness have become unavailable. possible or records of relevance have been lost diligent good-faith did Wiener make effort secure the defendants. delay opinion this we are of the case prejudicial
not the accused. unreasonable or the defendants no evidence or contention that There is any way prejudiced matter. in the of this were witnesses, or There is no claim of deceased unavailable hazy recollections, or of records.3 loss or witnesses with pro- when Their were finalized federal sentences ceedings for the second commenced in Wisconsin April It is hard to believe time in of 1969. delay in the psychological trauma or that the
victims eligibility any parole dates. affected federal state case prosecu- the result of not, suggested, con- defendants were or indifference. The torial pursuing post- jurisdiction and were federal fined in the Attorney Deputy District When conviction remedies. appears me attorney, “It district advised the Wiener the federal au- anything can do until we isn’t that there Federal through proceedings in the get thorities grounds a belief. This for such Court,” had reasonable he as stated of the facts recitation apparent from above. 3 Hooey supra, (1969), Florida, 393 and Smith Diekey v. See 2d Ed. Sup. 21 L. Ct.
U. S. *10 January
In of the returned defendants were specific participating in purpose Wisconsin for of the charges. new It trials on federal is inconceivable the interrupt the that federal would or authorities should proceedings their the and state the defendants release during May April, authorities or June February, March, pretrial presented while motions were multitude and heard and new trials conducted. significant delay have
It is further that the could here considerably except been less intentional acts for the having original proceedings dis- in the defendants delay preliminary missed because of examinations they appear not knew could because when do the federal would allow them to so. authorities not say illegal im- is not their or This actions proper termi- fact it was their act that remains —but original proceedings to the nated the and contributed delay. delay not an unreasonable
We conclude there was preju- state, that were not caused the defendants diced, and crimes that because of the seriousness charged rights public a trial not of the demanded and charges. dismissal Judgment
By the order and affirmed. Court. — (dissenting). question deter- to be J. Wilkie, 254-day delay appeal in between mined this whether speedy (July appellants’ trial 22,1968) demand (April 1969) violation of constituted a their arrest guaranteeing a criminal mandates de- the constitutional a far to a This case trial. raises fendant presenting typical than case worse situation delay arresting simply Here the speedy trial issue. scheduling their appellants, case for only apparently was necessitated Here, too, the attorney’s office took over district process and send an officer eight the forms months to were incarcerated for final appellants who to arrest neighboring (Wauke- three county jails months three Ozaukee, sha, Kenosha). Most of this time county incarcerated in jail, the Kenosha 40 miles from Milwaukee. On these I un- facts believe necessary, unreasonable, I would unconstitutional. reverse the convictions. majority point out,
theAs a determination of whether a criminal defendant has been denied to a his largely dependent case; there the facts of each is no time after which definite a defendant is entitled Fogle release.1 State v. this indicated that pretrial defendant who makes cannot as- various motions *11 sert that he has been denied a trial because of the delay by however, necessitated Here, his own motions. the absolutely nothing delay proceed- did to delay ings, by judge’s nor was the occasioned a illness Kopacka by prepare in v. State3 or the need to prosecution as in United States Ewell.4 Here the v. record discloses that the occasioned the dis- eight-month filing attorney’s proper trict in why length papers. The record is as to of silent such required perform simple I time to such a task.5 con- delay was not clude that the reasonable. 1 code, (2) procedure (a) 971.10 of the new criminal Under see. charged felony is entitled to a trial within a defendant with however, ninety days provides, of his demand. The statute only made after demand can Because this new such be arrest. only July prosecutions 1, 1970, applies to commenced after statute applies issue of whether to the I do not reach the statute present situation. 2 (1964), 130 2d 25 2d N. W. 871. Wis. 3 457, 126 (1964), 2d N. 2d 78. 22 Wis. W. 4 Sup. (1966), Ct. Ed. 2d 86 15 L. 383 U. S. 5 Code, procedure sec. codifies the to be followed 18 U. S. custody securing prisoner. of a federal state 374, 381, Hooey (1969), Sup. U. 21 S. 89 Ct. Smith supreme policy took note of the of 2d L. Ed. encourage expeditious of to Bureau Prisons against prosecutions in disposition prisoners. courts federal of state Hooey. followed is set out footnote 13 in procedure to be precise determining
While a time cannot be for set speedy trial, when a defendant been denied a has Project American Bar Association on Minimum Stan- general guide- dards for Criminal Justice has down set Relating Speedy to lines in Standards Trial. In this its county of case the conduct the Milwaukee attor- district ney’s directly contrary 3.1 of office section Relating Speedy (Approved Draft, Trial Standards 1968). provides: That section availability obligations; of “Prosecutor’s notice to prisoner. right person protect “To of a serv- ing imprisonment or without the a term of either within provided by jurisdiction, and, rule or it should be statute necessary, compact, that: where interstate “(a) prosecuting attorney person If the knows that serving charged a criminal offense a term penal imprisonment another institution of or jurisdiction, promptly: he must presence prisoner “(i) of the undertake to obtain the trial; or “ (ii) hav- detainer to with the official cause a be filed request ing custody prisoner him of the so advise prisoner prisoner and to advise the his demand trial. having custody prisoner “(b) If an official such promptly prisoner detainer, must advise the receives a he charge prisoner’s demand trial. *12 prisoner any of- the informs such If at time thereafter trial, official a demand the shall cause ficial that he does promptly prose- to to be to that effect sent the certificate cuting attorney the to be who detainer filed. caused prosecuting receipt “(c) Upon certificate, of the such presence attorney promptly to of seek obtain the must prisoner for trial. the having custody prisoner “(d) of the the official When attorney prosecuting properly sup- the from receives ported custody temporary prisoner request of for such prisoner be made to that trial, shall available for attorney jurisdic- (subject, prosecuting cases inter right of the executive transfer, the traditional tional
577 right to refuse prisoner transfer and the contest legality delivery).” of his prosecutor Here long took no action until after speedy demand for a trial was made. majority eight-month delay also assert that prejudicial appellants. requires, how- The law
ever, that when a violation aof constitutional is prove beyond involved the state must a reasonable doubt deprivation prejudicial.6 require- is not This applies ment also to the denial of a In the trial.7 present long case the state submitted brief which was so parts court, it were struck order of the but not demonstrating delay one word is devoted here that the prejudicial. was not Common that such sense dictates naturally would cause the witnesses to remember clearly surrounding the such a less events crimes certainly ability lapse deny time would defendant the In locate and evidence for trial. witnesses needed showing by I state, absence of a believe this required prejudicial. As to assume that Appeals the Dis- stated the United Court for States Amendment Columbia, trict of enial of Sixth “[d] punishment ex- speedy a form of never 8 by a cused belated conviction.” 9 Dickey Supreme v. Florida In Court of the unanimously an armed reversed the conviction of custody him from and ordered released robber Mr. doing, not afforded so he was speaking court, pointed out: Chief Justice Burger, 6 18, Sup. (1967), 824, Chapman 386 87 Ct. 17 v. U. S. California (1967), Whitty 70S; 2d v. State 34 149 N. W. L. 2d Wis. Ed. 2d 657. 7 Osborn, Harm Harmless Error Isn’t Cameron and When See: less, Order, Law and Social 34. 1971 8 (D. 1969), C. 2d Hinton United States Cir. 424 Fed. 9 Sup. (1970), Ct. L. Ed. 2d 26. 398 U. S. *13 right “The or ab- is not theoretical reality rooted need stract but one in hard in the charges promptly exposed.
have If case for charges prosecution than rest on is the rather calls the accused to meet prosecution’s case, as the infirmities of right, when time meet them is defendant’s never favored the by is claims have been case fresh. Stale Although criminal law, and far less so in cases. put great persons con- many accused off the seek long prompt possible, to a frontation as as charges inquiry into criminal is fundamental authority duty charging provide prompt brought when, here, sharply into trial. This is the focus as early presses an confrontation his accused lack dockets, accusers with the State. Crowded judges lawyers, make no doubt of some or other factors delays Here, however, no valid reason inevitable. exclusively delay existed; con- it for the for the On with its venience of the consequent prejudice and omitted.]” this record State. fact intolerable as a matter of impermissible matter law. [Footnotes present applies I principle case. would The same judgment com- with directions reverse dismiss plaint. Chief Justice to state that Mr. am authorized Hal-
I join opinion. this and Mr. Justice Heffernan lows