The opinion of the court was delivered by: WHIPPLE
Petitioner, Albert Moore, seeks issuance of a writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2241 et seq., attacking the legality of his confinement in the Passaic County Jail.
Upon the filing of respondent's answer, the cause was referred to the Honorable John W. Devine, United States Magistrate, pursuant to General Rule 40, subd. E(3), for his preliminary review and report and recommendation to this Court as to whether a hearing is warranted.
This Court has conducted an independent review, in compliance with Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963) and 28 U.S.C. § 636(b)(3), of the petition for the writ, the answer of the respondent, the exhibits, and the report and recommendation of the Federal Magistrate, which is filed with this Opinion and Order; and upon consideration of the foregoing.
It is, on this 21st day of June, 1974, Ordered that the report and recommendation of the Federal Magistrate be and is hereby adopted as the opinion of this Court and that the petition of Albert Moore for a writ of habeas corpus filed in this Court on June 19, 1973 be and is hereby granted; and it is further
Ordered that the criminal proceedings instituted in Passaic County against the petitioner, pursuant to the indictments discussed in the Federal Magistrate's report and recommendation, be and the same are hereby permanently stayed.
REPORT AND RECOMMENDATION
Albert Moore has filed a petition for habeas corpus under 28 U.S.C.A. § 2241 et seq. in which he presents two issues: has he been denied his right to a speedy trial
and if so, should the requested relief, dismissal of three indictments, be granted. An affirmative answer to the former question will dictate a like response to the latter. Strunk v. United States, 412 U.S. 434, 440, 93 S. Ct. 2260, 37 L. Ed. 2d 56 (1973); Barker v. Wingo, 407 U.S. 514, 522, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Petitioner is presently at large on $5,000 cash bail.
State remedies have been exhausted. 28 U.S.C.A. § 2254(b); Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). Cf. Williams v. Oriscello, 441 F.2d 1113 (3 Cir. 1971).
On February 6, 1967 a municipal court complaint was filed in Paterson, New Jersey, which charged petitioner with the rape of a female infant on January 11, 1967. N.J.S.A. 2A:138-1. That allegation eventuated in an indictment, 641-66,
charging carnal abuse, N.J.S.A. 2A:138-1, which was returned on June 8, 1968, but which was dismissed on September 25, 1970 on the ground that petitioner had been denied a speedy trial. The State did not appeal that judgment although it could have done so.
See the current New Jersey Rule of Court 2:3-1(b) and its antecedents there cited. Appreciation of the dismissal of Indictment 641-66 is critical to the resolution of the constitutional issue before us and requires recital of the events underlying that disposition.
From this record it is clear that petitioner left New Jersey on or about the date of the alleged crime, and that he was incarcerated in Virginia from April or May 1967 to June 30, 1970 at which time he was turned over to the New Jersey authorities. Respondents admit that petitioner's location was known to the prosecution not later than August 3, 1967 on which date a detainer was filed in Virginia premised on Indictment 641-66. Petitioner's contention that he did not learn of the indictment or of the detainer until he appeared before a parole board in December 1968 has not been denied. Thereafter, petitioner twice asked the prosecutor, by letters dated December 7, 1968 and April 16, 1969 to extradite him and filed, pro se, motions for a speedy trial, for the assignment of counsel and for other relief in the Superior Court of New Jersey and in other forums. See Moore v. Oliver, C. 1349-70, originally filed in the Eastern District of Virginia, and ultimately dismissed by this court on October 21, 1970. Indeed petitioner's efforts generated a prophetic letter from the Assignment Judge of Passaic County to its then prosecutor, dated January 30, 1969,
in which it was urged that efforts be made to bring him to trial. The prosecutor's staff then undertook to extradite petitioner from Virginia
in response to which demand the Commonwealth of Virginia advised the prosecutor's office that extradition was not necessary and that under its law petitioner's return to New Jersey could be obtained by a much simpler process.
No further action however was taken by the Passaic County Prosecutor's office. The reason therefor, proferred to this court in a memorandum opposing the instant petition, was that "[although] [Virginia's] procedure was not complicated, it was not followed through apparently because the assistant prosecutor who had been assigned the matter left the office and the continuity of the case was disrupted." The State has given the same reason for its inaction to its own courts.
After dismissal of Indictment 641-66, on petitioner's motion, he was released from custody. The date was September 25, 1970. No further prosecutorial action was taken against petitioner until July 20, 1971 when three new indictments,
which are specifically discussed below, were returned upon the presentment by a new prosecutor.
Those indictments charged petitioner with atrocious assault and battery, N.J.S.A. 2A:90-1, threatening to kill, N.J.S.A. 2A:113-8, and impairing the morals of a minor, N.J.S.A. 2A:96-3. They are numbered respectively 1004, 1005 and 1006-71, and are all based upon acts said to have been committed on January 11, 1967 against the infant victim named in Indictment 641-66. Petitioner was reincarcerated on August 8, 1971.
On petitioner's motion the three 1971 indictments were dismissed by order dated October 29, 1971 on the ground that he had been denied a speedy trial as to them. The motion court's reasoning was, in essence, that inasmuch as it had already been held that petitioner had been denied that right as to Indictment 641-66 he necessarily had been so deprived as to Indictments 1004, 1005 and 1006-71. Petitioner was again set at liberty. On appeal however that judgment was reversed as to Indictments 1004 and 1005-71 but affirmed as to 1006-71. State v. Moore, Docket No. A-546-71, decided November 30, 1972, unreported. The basis for the Appellate Division's ruling was that Indictment 1006-71 (impairing the morals of a minor) comprised an offense included within that set out in Indictment 641-66 but that Indictments 1004 and 1005-71 accused petitioner of crimes different from those charged in that dismissed. Petitioner's application to the Supreme Court of New Jersey for further review was denied on January 18, 1973. On January 2, 1973 petitioner, unable to post bail, had been jailed again.
Petitioner subsequently moved successfully for an evidentiary hearing to determine whether he had suffered prejudice because of pre-indictment delay as to Indictments 1004 and 1005-71. That hearing was held on March 5 and 22, 1973. On the latter date the court found that petitioner had failed to show actual resultant prejudice.
Applications for leave to appeal to the Appellate Division and to the Supreme Court of New Jersey, which were denied, exhausted State remedies as to this issue.
On June 1, 1973 bail of $5,000 was posted on behalf of the petitioner who thereafter applied to this court for habeas corpus relief and for an order, which was granted, staying the State trial until resolution of this petition. See 28 U.S.C.A. § 2251.
Petitioner now contends, citing Barker v. Wingo, supra, and Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970), that he has been denied his right to a speedy trial on Indictments 1004 and 1005-71 and is therefore entitled to relief by way of their dismissal under the Sixth and Fourteenth Amendments.
In Barker the Supreme Court set the background for consideration of the issues we face in the following language.
" The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. . ."
"If an accused cannot make bail, he is generally confined, as was Barker for 10 months, in a local jail. This contributes to the overcrowding and generally deplorable state of those institutions. Lengthy exposure to these conditions 'has a destructive effect on human character and makes the rehabilitation of the individual offender much more difficult.' At times the result may even be violent rioting. Finally, lengthy pretrial detention is costly. The cost of maintaining a prisoner in jail varies from $3 to $9 per day, and this amounts to millions across the Nation. In addition, society loses wages which might have been earned, and it must often support families of incarcerated breadwinners.
"Finally, and perhaps most importantly, the right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial. If, for example, the State moves for a 60-day continuance, granting that continuance is not a violation of the right to speedy trial unless the circumstances of the case are such that further delay would endanger the values the right protects. It is impossible to do more than generalize about when those circumstances exist. There is nothing comparable to the point in the process when a defendant exercises or waives his right to counsel or his right ...