Jerry Allen Arnold v. D. J. McCarthy Superintendent, California Men's Colony

This is an appeal by the State of California represented by D. J. McCarthy, Superintendent of the California Men’s Colony, *1380 from Jerry Allen Arnold’s successful plea in the district court for a Writ of Habeas Corpus. Appellant argues that neither the Due Process Clause generally, nor the speedy trial provisions of the Fifth Amendment were violated by the state’s delay in bringing Arnold to trial for robbery and assault. Arnold contends that because of the length of the delay and the fact that before his second trial a critical witness died he was unduly prejudiced, warranting affirmance of the Writ. Additionally, Arnold argues that his right not to be placed more than once in jeopardy for the same offense was violated. We find no constitutional error justifying the grant of the petition'for Habeas Corpus and reverse.

I. FACTS

A. The Crime.

In the evening of January 17, 1968, Arnold was involved in an altercation in a local bar in Santa Barbara. The bartender, Russel Walthers, requested the.police to instruct Arnold not to return to the bar again that night. The police complied. At approximately 2:00 a. m. the next morning, as Walthers was closing up the bar, he was…

Dissenting:

I respectfully dissent. To me, it is inexplicable that my Brothers decide that the delay of more than twelve months between the mistrial and Arnold’s rearrest did not result in “actual prejudice.” The district judge, in a well-reasoned memorandum of decision, concluded that the delay between trials resulted in “substantial prejudice” to the appellee’s due process right to a fair trial. His decision rests solidly upon the record and should require affirmance.

At the outset, however, I express my basic agreement with the majority’s formulation of the due process standard governing pre-indictment or pre-arrest delay. United States v. Marion, 404 U.S. 307 , 92 S.Ct. 455 , 30 L.Ed.2d 468 (1971), and United States v. Lovasco, 431 U.S. 783 , 97 S.Ct. *1389 2044 , 52 L.Ed.2d 752 (1977), teach that due process bars prosecution because of prein-dictment delay when the defendant establishes two elements: (1) actual prejudice engendered by the delay; and (2) lack of reasons on the part of the prosecution that justify the delay. The Supreme Court explained in Lovasco :

Id. at 789 , 97 S.Ct. at 2048-49 .

Rather, the crux of my protest concerns the application of the due process…

566 F.2d 1377 Jerry Allen ARNOLD, Petitioner-Appellee, v. D. J. McCARTHY, Superintendent, California Men's Colony, Respondent-Appellant. No. 76-1421. United States Court of Appeals, Ninth Circuit. Jan. 13, 1978. Jack T. Kerry, Deputy Atty. Gen. (argued), Los Angeles, Cal., for respondent-appellant. James S. Russell (argued), Los Angeles, Cal., for petitioner-appellee. Appeal from the United States District Court from the Central District of California. Before ELY and CARTER, Circuit Judges, and ENRIGHT, * District Judge. JAMES M. CARTER, Circuit Judge: 1 This is an appeal by the State of California represented by D. J. McCarthy, Superintendent of the California Men's Colony, from Jerry Allen Arnold's successful plea in the district court for a Writ of Habeas Corpus. Appellant argues that neither the Due Process Clause generally, nor the speedy trial provisions of the Fifth Amendment were violated by the state's delay in bringing Arnold to trial for robbery and assault. Arnold contends that because of the length of the delay and the fact that before his second trial a critical witness died he was unduly prejudiced, warranting affirmance of the Writ. Additionally, Arnold argues that…