7ASR3d147

AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

DIANNE MAJHOR, Defendant.

 

High Court of American Samoa

Trial

Division

 

CR

No. 15-03

 

August

13, 2003

 

 

[1] The right of a defendant in a criminal prosecution to a speedy trial

is a fundamental right of an accused guaranteed by Article I, Section 6 of the

Revised Constitution of American Samoa of 1966, and the Sixth Amendment to the United States Constitution. 

 

[2] The right of a defendant in a criminal prosecution to a speedy trial

attaches when a defendant is officially accused.

 

[3] Whether the right to a speedy trial has been violated must be

determined on case-by-case basis and balancing the length of delay, reasons for

delay, timeliness and vigor of the defendant’s assertion of the right, and the

degree of prejudice to the defendant. 

 

[4] A threshold showing that the

length of delay is presumptively prejudicial to the defendant usually triggers

the need to consider the remaining factors. In general one year is

presumptively prejudicial.

 

[5] In addressing the right to a

speedy trial, the court considers whether the delay is deliberate, neutral, or

valid.  Intentional prosecutorial delay,

usually for some strategic purpose, is always suspect. 

 

[6] Unless the defendant is suffering

actual prejudice by the delay, the timeliness of her speedy trial demand does

not of itself override the reasons for delay noted above.

 

[7] Recognized prejudice from delay

usually encompasses oppressive pretrial incarceration, anxiety and concern, or

impairment of defenses. The defendant must demonstrate actual prejudice in one

or more of these three areas, or in some other significant way.

 

[8] In light of justifiable reasons

for the delay, the defendant’s pretrial incarceration and heightened anxiety,

if any, during the delay are not persuasive reasons to proceed with the trial

within a week. 

Before RICHMOND, Associate Justice, SAGAPOLUTELE, Associate

Judge, and TAPOPO, Associate Judge.

 

Counsel: For Plaintiff, Marc S. Roy,

Assistant Attorney General

 For Defendant, Paul F. Miller

 

ORDER

GRANTING MOTION TO CONTINUE TRIAL

 

Plaintiff American Samoa Government (“ASG”) moves for continuance of the

jury trial in this prosecution, now scheduled to begin on August 19, 2003.  Defendant Dianne Majhor (“Majhor”) opposes

the motion.  The motion was heard on

August 11, 2003.  Both counsel and Majhor

were present.

 

[1-2] The right of a defendant in a criminal prosecution to a speedy trial is

at the heart of the issue.  This fundamental right of an accused is

guaranteed by Article I, Section 6 of the Revised Constitution of American

Samoa of 1966, and the Sixth Amendment

to the United States Constitution. 

Speedy trial protection minimizes the possibility of lengthy pretrial

incarceration and consequential deprivation of liberty and disruption of life

resulting from unresolved criminal charges. 

United States v. MacDonald, 102 S. Ct.

1497, 1502 (1982).  The right attaches

when a defendant is officially accused.  Id.

at 1501.

 

[3] Denial of the speedy trial right must be determined on case-by-case

basis.  The Supreme Court’s test for this

determination balances the length of delay, reasons for delay, timeliness and

vigor of the defendant’s assertion of the right, and the degree of prejudice to

the defendant.  Barker v. Wingo,

407 U.S. 514, 530 (1972).  Application of

the Barker test is appropriate for an

analysis of the issue when raised in this jurisdiction.  Pene v. Am. Samoa Gov’t, 12 A.S.R.2d

43, 45 (App. Div. 1989).

 

1.  Length of Delay. 

 

[4] A threshold showing that the length of delay is

presumptively prejudicial to the defendant usually triggers the need to

consider the remaining factors.  Barker,

404 U.S. at 530.  It has been said that

in general one year is presumptively prejudicial.  Doggett v. United States, 505 U.S.

647, 652 n. 1 (1992).[1]

Majhor has been incarcerated since her arrest on March 16, 2003, except

for two or three days before her arrest on a different but incidental offense

charged in CR No. 20-03.  The presumption

concept attached to one-year delay has a ways

to go.  Nonetheless, the length of

delay to date is already substantial and sufficient to evaluate the remaining

three factors.

 

2. 

Reason for Delay. 

 

[5] The Court considers whether the delay

is deliberate, neutral, or valid. 

Intentional prosecutorial delay, usually for some strategic purpose, is

always suspect.  Barker, 407

U.S. at 531.  There is no evidence,

however, that ASG has deliberately caused the delay for any unjustified purpose

in this case.

 

To the contrary, the delay is

attributable to several justifiable ends. 

This case is one of 10 prosecutions arising out of the same factual situation.  Expert forensic analysis and testimony from

sources outside of American Samoa are involved.  The alleged facts as a whole, as well as the

legal issues, are unique and relatively complex.  The investigation of this incident has been, and still is, ongoing.  ASG needs

substantial time for proper preparation of all the cases for presentation at

trial.  The continuing preparation has

also led to investigation of potential prosecutions of other alleged offenses.

 

Moreover, it only makes good sense to

resolve the prosecutions for the alleged homicide underlying this case before

dealing with the prosecutions of alleged subsequent tampering with

evidence.  The paramount public interest

is best served by first having fair and impartial trials of the homicide

prosecutions, untainted by the evidence introduced during the trial of the

collateral tampering prosecutions.

 

At this juncture, the pretrial

conferences in the three homicide prosecutions are scheduled, at the request of

the defendants in those cases, on September 15, 2003.  The trials in those actions will probably be

scheduled during those conferences.  This

scheduling will provide a logical basis for scheduling the trial in this case.

 

3. 

Timely Assertion of Speedy Trial Right. 

 

[6] Majhor first asserted her right to a

speedy trial by her motion filed on May 13, 2003.  She certainly did so in a timely manner, and

the Court initially sought to accommodate her demand by the August 19, 2003

trial setting.  However, unless Majhor is

suffering actual prejudice by the delay, the timeliness of her speedy trial

demand does not of itself override the reasons for delay noted above.

 

4.  Prejudice to the Defendant. 

 

[7] Recognized prejudice from delay

usually encompasses oppressive pretrial incarceration, anxiety and concern, or

impairment of defenses.  Barker, 407

U.S. at 532.  The defendant must

demonstrate actual prejudice in one or more of these three areas, or in some

other significant way.  United States v. Greer, 60 F.2d 1383, 1386 (10th Cir. 1980); Pene, 12 A.S.R.2d at 45.

 

[8] In light of the reasons for delay

noted above, Majhor’s pretrial incarceration and heightened anxiety, if any,

during the delay are not persuasive reasons to proceed with the trial on August

19, 2003.  See United States v. Van Dyke,

605 F.2d 220, 226 (6th Cir. 1979); United States v. Taylor, 578

F.2d 108, 109 (5th Cir. 1978).  Significant specific impairment of her

defense would be persuasive, but at this point, Majhor has failed to show any

such impairment.

 

Order

 

ASG’s

motion to continue the jury trial in this action is granted, and the scheduled

trial date on August 19, 2003, is vacated. 

When the trial dates in CR Nos. 8-03, 9-03 and 10-03 are known, the

Court will conduct a hearing in this action to reschedule the trial to commence

on a date after the probable completion of the trials in those three cases.

 

It is so ordered.

 

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