Opinion
CRIMINAL ACTION NO. 1:98CR34 (Judge Keeley)
December 30, 1999
MEMORANDUM OPINION AND ORDER
This Order addresses the issue of the right to a speedy retrial of his remaining arson and mail fraud charges of the defendant Ricky Lee Brown. Mr. Brown raised this issue following the conclusion of his trial which ended without a verdict on eight of the fifteen counts in the Superseding Indictment. After a brief summary of the procedural history relating to this matter, the Court will discuss why it rejects the defendant's argument and has decided to continue generally the trials of all three defendants in this case.
Procedural History
On November 23, 1999, the Court declared a mistrial as to Counts One, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen and Fifteen of the Superseding Indictment against the defendant Ricky Lee Brown, after the jury which heard the evidence advised that it was unable to reach a unanimous verdict on these counts. Pursuant to 18 U.S.C. § 3161, Mr. Brown, by his attorneys, immediately asserted his right to a speedy retrial within seventy (70) days, arguing that his retrial should occur prior to the trial of his wife and co-defendant, Barbara M. Brown, whose case is scheduled to start on January 18, 2000. Although Mrs. Brown had previously filed a written waiver of her right to a speedy trial, after being advised of the outcome of her husband's case, she attempted to reassert her right to a speedy trial, insisting that § 3161 required that she be tried prior to any retrial of her husband.
The parties briefed the issue of the competing speedy trial interests of Mr. and Mrs. Brown, and the Court also sought briefs from them on an issue it had raised earlier on its own motion concerning whether to continue all three of the defendants' trials until the United States Supreme Court decides the case of Dewey Jones v. United States, 178 F.3d 479, cert. granted, 120 S.Ct. 494 (Nov. 15, 1999) (No. 99-5739). Jones presents the question of the constitutionality of applying 18 U.S.C. § 844(i) to a residential arson, which is the same jurisdictional issue this Court ruled on when it denied the defendants' joint Motion to Dismiss.
The briefs of both Mr. and Mrs. Brown asserted that their respective death penalty trials should proceed immediately, and that postponing them pending a ruling in Jones would transgress their speedy trial rights.
The Government's brief argued that the rights of Ricky Brown and Barbara Brown to a speedy trial were co-extensive, and that they should be tried together. Importantly, it also disclosed that Melvin Kahle, the United States Attorney for the Northern District of West Virginia, had requested Attorney General Janet Reno to "deauthorize", or withdraw her authorization of, the death penalty as a possible sentence for Count 15, which charges the violation of § 844(i). Assuming deauthorization, the United States also moved the Court to reconsider its order severing the trials of Ricky Lee Brown and Barbara Brown because, without the death penalty issue in the case, there should be no legal impediment to rejoining these cases for trial.
The trial of the third defendant, Janette A. Ables, has not been scheduled due to the current trial schedule of her lead attorney, but it has always been anticipated that it will begin later in 2000. This opinion primarily references defendants Ricky Lee Brown and Barbara M. Brown, first, because Ms. Ables has not sought to reassert a right to an immediate trial, and, second, because the Government has not sought to rejoin her trial with those of Mr. and Mrs. Brown.
In her response, Barbara Brown reversed her position on the speedy trial issue and indicated that she was again waiving her right to a speedy trial. She also stated that she did not wish to be tried with her husband and was content to wait until after his retrial. Ricky Brown, however, continued to assert his right to a speedy retrial, and opposed any rejoinder of his case with that of his wife.
On December 20, 1999, at a joint status conference of all three cases, the Government's attorneys advised the Court that Attorney General Reno had not yet rendered a decision on the request to deauthorize the death penalty, and that, while they could not know with certainty when to expect such a decision, the earliest they anticipated it was the first week of January, 2000. The Court then heard argument on when the next trial should get underway, and whether it should be the one already scheduled on January 18, 2000 for Barbara M. Brown, the retrial of Ricky Lee Brown, or a joint trial of both defendants.
Discussion
18 U.S.C. § 3161(h)(8)(A) mandates that the Court balance both a defendant's and the public's interests in a speedy trial against the ends of justice in determining whether to extend a trial date beyond seventy (70) days. A court must weigh four (4) criteria when determining a defendant's constitutional right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) defendant's assertion of his (or her) right to a speedy trial; and (4) the prejudice, if any, the defendant suffered by the delay." Barker v. Wingo, 407 U.S. 514, 530 (1972); United States v. Reavis, 48 F.3d 763, 770 (4th Cir. 1995).
Applying this balancing test to the facts here, the Court finds that the ends of justice served by continuing the trials in this case outweigh the interest of the public and the defendant Ricky Lee Brown in a speedy retrial of his case.
First, until the Attorney General decides whether she will withdraw her notice of intent to seek the death penalty, this Court cannot know whether any of these cases will be tried as death penalty cases, with the increased costs of death qualified counsel and mitigation specialists that attend such cases. It makes no sense to embark on a trial of a death penalty case that may be deauthorized in mid-trial.
Second, certiorari has been granted in the case of Dewey Jones v. United States, 178 F.3d 479 (7th Cir.), cert. granted, 120 S.Ct. 494 (Nov. 15, 1999) (No. 99-5739), and the question of the constitutionality of 18 U.S.C. § 844(i) as applied to the arson of a residential structure connected to interstate commerce by its supply of natural gas and electricity is squarely before the United States Supreme Court, to be decided no later than the end of the Court's current term, June, 2000. Even if the Attorney General declines to deauthorize the death penalty for these defendants, the impact the decision in Jones could have on the defendants' status is fundamentally important. In light of that, a maximum delay of six months is not prejudicial.
In various pretrial motions filed with this Court, defendant Ricky Lee Brown has argued that "Death is different!" His attorneys have asserted on numerous occasions that "[b]y their nature, death penalty trials involve `extraordinary circumstances and unusual representation.' Death penalty cases `raise complex additional legal and factual issues beyond those raised in an ordinary felony trial.' Capital litigation is `highly specialized' and requires dealing with `seemingly innumerable refinements. . . .'"
Postponing the retrial of Ricky Lee Brown, and the trials of Barbara Brown and Janette Ables, until either the Attorney General decides the deauthorization issue or the Supreme Court rules on Jones, makes sense as it may obviate the need for a lengthy, expensive federal death penalty trial in a state that does not permit the death penalty; also, it may avoid the heavy emotional toll on the defendants and the jurors that such a trial takes.
Moreover, a continuance also could result in significant administrative and budgetary savings if these cases are ultimately tried as ordinary felony cases. Finally, if the need for separate penalty phase hearings for each defendant is eliminated, a joint trial of at least two, and perhaps all three, of these defendants becomes possible.
Ricky Lee Brown's contention that he should be retried immediately because he has been in administrative segregation (i.e., "locked down" for twenty-three hours a day) for two years ignores the fact that, even in the event of an immediate retrial and acquittal, his administrative status in incarceration likely would not change because the State of West Virginia has a detainer for him to be held for trial on state charges arising from the same events that precipitated the federal indictment.
Moreover, his contention that he would be prejudiced by any delay is specious. As already noted, prior to trial, Brown argued strenuously that Count 15 ought to be dismissed based on jurisdictional grounds. Now, aware that the United States Supreme Court is poised to decide the very issue about which he fought so vigorously, he seeks an immediate retrial.
The Supreme Court has stated that "the delay that can be tolerated for an ordinary street crime is considerably less than that for a serious, complex conspiracy charge." Barker, 407 U.S. at 531. Accordingly, this Court will continue the retrial of Ricky Lee Brown, and the trial of Barbara Brown, until the death penalty issue these cases raise is resolved, either by the decision of Attorney General Reno or the ruling of the United States Supreme Court in Jones v. United States. The Court will conduct a status conference by telephone with the parties within five (5) days following either decision.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to the defendants and to counsel of record.