Court Records

January 9, 1978

Supreme Court of the United States

On Writ of Certiorari by the U. S. to the United States Court of Appeals for the Fourth Circuit

Oral Arguments re: Double Jeopardy and Speedy Trial  (Audio)

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Webmaster note: 
The transcript below originated from Oyez.  With the exception of added emphasis, spelling, punctuation and grammar have been left intact.
Argument of Kenneth S. Geller

Chief Justice Warren E. Burger:  We will hear arguments next in United States against Mc Donald.

I think you may proceed when you are ready Mr. Geller.

Mr. Kenneth S. Geller:  Mr. Chief Justice and may it please the Court.

The Court granted certiorari in this case to resolve two important issues of Federal Criminal Law.

The first is whether a defendant may appeal prior to trial from the denial of his motions to dismiss and indictment on Speedy trial grounds.

The second issue which need only be reached if the Court holds that such interlocutory appeals are permissible, is whether the period after Criminal charges against the defendant have been dismissed.

But before the same or related charges are re-instituted against them should be considered in determining whether the defendant has been prior to his right to Speedy trial.

Their facts are as follows.

In the early morning of February 17 1970, Respondent's wife and two small daughters were clubbed and stabbed to death in Respondent's Apartment on the Fort Bragg Military Reservation in North Carolina where respondent was assigned as a Medical Doctor.

Respondent who also suffered some woulds notified the military police of the attacks, claiming that he and his family had been assaulted by force so called hippies who were apparently been under the influence of drugs.

Respondent at first was viewed as a victim rather that as a suspect.

However after an intensive but incomplete investigation of the crimes, had been conducted by the CID the Army's Criminal Investigative Unit.

It became apparent that many aspects of Respondent's version of the attacks and of the subsequent actions upon discovering his family's bodies could not be squared with the preliminary laboratory analysis of the physical evidence of the Crime.

In April 1970 therefore respondent was warned that he was a suspect in the murders was advised of his rights by military authorities and was confined to the military reservation by his immediate commanding officer.

Three weeks later, respondent was formally charged by his commander with three specifications of murder.

As required by Article 32 of the Uniform Code of Military Justice, an officer Colonel Warren Rock was appointed to investigate the matter and to recommend whether the charges should be referred by the post commander to a General Court Marshal for trial.

After considering the other evidence on the case over the next several months Colonel Rock recommended that the charges against the respondent be dismissed but that further investigation of the murders be undertaken by the appropriate Civilian authorities.

This recommendation was accepted by the Commanding General of respondent's unit who dismissed all charges against respondent in October 1970.

Two months later, in December 1970 respondent was granted an honorable discharge by the Army.

Following respondent's release from the military the Department of Justice requested the CID to continue its investigation in the case.

The CID did so and in June 1972 it submitted a massive 13 volume report to the department, which was supplemented by further reports in November 1972 and August 1973.

Respondent was eventually indicted on three counts of murder in January 1975 by grand jury of the United States District Court for the Eastern District of North Carolina.

Respondent moved to dismiss the indictment on a number of grounds including Double Jeopardy and denial of the Sixth Amendment right to a speedy trial.

The District Court denied each of these motions in July 1975 and schedule respondent's trial to begin in August 1975.

Respondent instead took an immediate appeal to the United States Court of Appeals for the Fourth Circuit.

That Court held that it had jurisdiction over respondent's Double Jeopardy claim under its decisions in United States against Lansdowne.

The decisions subsequently approved by this Court in Abney against the United States and that respondents Speedy trial claim was also a proper subject for a pre-trail appellate review because it involved the fundamental constitutional right because of his "pendent to the double Jeopardy claim and closely related to it" and because the court believed that its ruling on the issue would expedite the ultimate resolution of what it viewed as an extraordinary case.

Justice William H. Rehnquist:  What case is from this Court did the Fourth Circuit cite to support its concept of pendent Jurisdiction over the Speedy trial.

Mr. Kenneth S. Geller:  My recollection Mr. Justice Rehnquist is that it cited none.

That aspect of the Court of Appeals decisions is at page 5a, the appendix of the petition.

The Court then concluded on the merits that respondent had been denied the Speedy trial on the merits because of the delay of more than four-and-half years between his arrest by the Army in May 1970, and his Federal indictment in January 1975.

It viewed as of no significance for Sixth Amendment purposes that respondent had not been under any criminal charges for more than four years at that period.

Now, the threshold question in this case is whether the Court of Appeals had Jurisdiction to review respondent's pre-trail appeal for the denial of the Speedy trial motion.

We submit that it did not.

Under the controlling Jurisdictional Statute 28 USC 1291 the Courts of Appeal may review only final decisions of the District Court's.

A phrase that this Court has consistently construed to bar piecemeal appeals before final judgment.

Adherence to this rule of finality has particularly stringent in criminal cases because the delays and disruptions caused by interlocutory appeals are especially inimical to the effective administration of the Criminal Law.

Respondent of course, does not claimed that the pre-trail denial of his motions to dismiss the indictment on Speedy trial grounds was a final decisions, in the sense that it terminated the proceedings against him in the District Court.

Obviously the Court's ruling only allowed the case to proceed the trial where a number of other factors may have led to to dismissal on acquittal.

Rather respondent contends that the denial of the Speedy trial motion is immediately appealable before trial.

Under the so called collateral order exception to the final judgment.

Justice William H. Rehnquist:  Could the speedy trial claim had been presented a new to the District Court in a motion for judgment NOV or judgment of acquittal of the conclusion if the guilty verdict had been retained?

Mr. Kenneth S. Geller:  Yes, it can and it is our position that that would be the preferable way in which to present it because as I will get to in a moment, it is often impossible to rule on such a motion until you see what the evidence is a trial because frequently the defendant's contentions would be that he has been prejudiced in his ability to defend himself by the delay that might have been caused by the the government and it is only after trial that such a claim can be intelligently assessed.

And this court most recently applied the collateral order doctrine, last term in Abney against the United States in holding that the Courts of Appeals had jurisdiction under Section 1291 to entertain interlocutory appeal from the denial to dismiss an indictment because of Double Jeopardy.

In reaching that conclusion the court stressed that the trial judge's pre-trial denial of the Double Jeopardy motion constituted a complete formal and final rejection of the Fifth Amendment claim in the District Court.

But the claim by its very nature was wholly collateral to and separable from the issues to be litigated at the trial and that the most important is the protection is been preferred on an accused by the double jeopardy clause would be significantly undermined if appellate review had to wait until after conviction because the Double Jeopardy clause protects an individual not only against being punished twice for the same offense but also against being tried twice for that offense.

That aspect of the constitutional right could not be indicated by reversal of any conviction obtained at the second trial and would be irreparably lost unless an immediate pre-trail appeal were permitted.

We have explained at some length in our brief why the denial prior to trial of a speedy trial motion unlike the denial of the double jeopardy motion is not normally a final rejection of the claim in the District Court, because as I just explained in response to the question by Mr. Justice Rehnquist, an intelligent application of the bar for viewing those standards often may not be possible before trial.

For many of the same reasons speedy trial claim again unlike double jeopardy claims are not wholly collateral to the matters to the raise the trial because only after the trial can it be determined whether the defendant has truly been prejudiced by pre trial delay.

Respondents has not seriously disputed these contentions in his brief.

Instead he asserts that Sixth Amendment Speedy Trial clause just like Fifth Amendment double jeopardy clause creates a so called right not to be tried, a right which to be effective requires recognition of the concomitant right to immediate appellate review, but there is a little to support this assertion.

As the language of the Sixth Amendment suggests that is the delay before trial and not the trial itself that violates the constitutional guarantee.

The concern of the Sixth Amendment is not the trial but the any delays surrounding it.

If the pertinent factors identified in Barker v. Wingo in a particular case to deprive the defendant of his right to a Speedy Trial.

That violation by definition must have occurred prior to the beginning of the trial.

Hence unlike the situation in Abney proceeding with the trial itself would not cause or compound the constitutional deprivation.

By the same token and again by contrast to the Fifth Amendment protection against Double Jeopardy, the effectiveness of appellate review of Speedy Trial claims is not diminished in any way by awaiting the outcome of the trial.

This court is identified three interests of a defendant that the Speedy Trial clause is designed to protect.

First, to prevent the oppressive pretrial incarceration.

Second, to minimize pretrial anxiety and concern of the accused and third to limit the possibility that the defense will be impaired by the loss of evidence.

It is obvious that no remedy whenever offered can truly undo or alleviate the annoyances or anxieties that a defendant may have suffered while awaiting trial.

But the reversal of defendant's conviction after trial would be equally as effective as the dismissal of indictment before trial to compensate that defendant for any emotional harm he may have suffered and it will also be equally as effective as a means of punishing the government for the delay.

Similarly, a defendant's interest in avoiding a conviction based on lost evidence or dimmed memories can be fully protected by a reversal of any conviction procured after a period of unconstitutional pretrial delay.

Thus deferring appeal of a rejected Speedy Trial claim until after trial presents a question not of rights, but solely of remedies.

Any Sixth Amendment violation can be remedied as well after trial as before.

Now, since Speedy Trial claims thus do not satisfy any of the criteria of the collateral law order doctrine.

There is no justification for countenancing a breach of the normal rules against interlocutory appeals and criminal cases for such claims.

Indeed there are strong reasons why in our view would be a especially inappropriate to allow defendants to take interlocutory remedy appeals from the District Courts denial of their Speedy Trial motions.

That is because the Speedy Trial clause unlike the Double Jeopardy clause or indeed unlike any of the other protections of the Bill of Rights.

It is designed as much to foster the interest of society in the expeditious resolution of criminal cases as to confer protections upon individual defendants.

This court observed in Barker v. Wingo the societal interest in providing a Speedy Trial exist not only separate from but at times also in opposition to the interest of the accused.

Thus, even if some of the interest protected by the Speedy Trial clause might be furthered by allowing pretrial appellate review of Sixth Amendment claims in a occasional case, other equally important interest protected by the clause would be severely frustrated by the often substantial delays in the disposition of criminal cases that would inevitably accompany such appeals.

Unknown Speaker:  There would certainly be pretrial review if the shoe were on the other foot or they are not if the defendant had moved the indictment be dismissed because to try them now would violate his right to a Speedy Trial.

The government could surely appeal that.

Mr. Kenneth S. Geller:  That is correct but under Section 1291, under Section 3731 from the dismissal of indictment and that clearly is a final order.

Unknown Speaker:  That would be a final order.

Mr. Kenneth S. Geller:  There is nothing further that would happen in the case unless an appeal were to be pursued.

Like this case graphically illustrates the point that I was making about delay.

The District Court denied respondent's motions to dismiss the indictment in July 1975 and scheduled his trial to begin a few weeks later.

Pretrial litigation of respondent's Speedy Trial claims is yet to be resolved.

More that two years after his trial would have ended but for the "piecemeal" appeal.

In addition permitting pretrial appeal of Speedy Trial claims would allow defendants a ready method of obtaining a continuance of their trials and delay is unfortunately not an uncommon defense tactic.

We have recognized of course that this court in Abney was not persuaded by the argument that the defendants might take dilatory appeals in Double Jeopardy cases.

The Court believed that the Courts of Appeals could easily weed out and dispose summarily of truly frivolous kept claims.

Well, this is perhaps true in double jeopardy cases there are two reasons why it is exceedingly unlikely to be true with respect to speedy trail claims.

First is that it is much more difficult to allege a plausible double jeopardy violation, there must be some showing that the defendant has once before been in jeopardy a federal conviction on the same or related charges.

Very few defendants could make or even approach that challenge.

By contrast, it would be the rare defendant who could not present the colorable speedy trail claims since they will be in every case some period of delay between his arrest and indictment and trail and possible prejudices, as this court remarked in United States V. Marion is inherent in any delay however short.

Secondly, it is much easier for Courts of Appeals to spot and adjudicate any substantial double jeopardy claim quickly.

It involves merely a question of law generally on undisputed facts.

Speedy trail claims on the other hand call for a delicate and often difficult case by case assessment of a number of variables such as the reasons for the delay and the prejudice suffered as the result of the delay, whether these factors make out a constitutional violation in any particular case may not be possible to determine without the aid of full briefing and oral argument.

In short, we submit that speedy trail claims are precisely the type of claims that should be subject to the final judgment rule and that the Court of Appeals erred in hearing respondents speedy trail appeal prior to trail.

I would like to turn briefly the few minutes remaining to the merits of respondents.

Unknown Speaker:  Mr Geller before you turn to the merits, in this case the District Court denied double jeopardy motion as well as a speedy trail motion and your appeal presented both issues to the Court of Appeals but the Court of Appeals did not decide the double jeopardy issue.

Why does not the appeal on the Double Jeopardy issue support review of the speedy trail issue?

Mr. Kenneth S. Geller:  Well, this court in Abney was faced with a similar situation, in Abney you will recall not only was there an appeal of the double jeopardy claim but the defendants also claimed that the indictment failed to state an offense.

The District Court denied that motion, they took an appeal of that.

Also before trail this court held that this court held that the Court of Appeals held no jurisdiction over that aspect of the defendants appeal because each issue must need its own independent appealability standard there is no concept of pendent jurisdiction has no role to play under the collateral order doctrine.

Now, as to the merits of respondent's Sixth Amendment claim as I noted at the outset this court need not reach it if it agrees with us that the court below lacked jurisdiction over respondents pretrial appeal.

Now, the Court of Appeal acknowledged and indeed as respondent concedes, no significant delay and certainly no delay approaching constitutional magnitude occurred in this case between January 1975, when respondent was indicted in August 1975 when his trail was set to begin.

Court of Appeals holding that respondent was deprived of his right to a speedy trail, thus plainly rests on the premise that respondent's Sixth Amendment right attached in the Spring of 1970 when he was arrested by the army and that is right continued unabated until August 1975, even though all of the military charges against respondent had been dismissed and he had been released from all restrains on his liberty in October of 1970.

Court below has therefore reached the insupportable and quite incongruous conclusion that in the four years between the dismissal of the military charges against respondent and his indictment, respondent was entitled to insist upon a prompt resolution of the charges against them and the federal government was obliged by the Sixth Amendment to afford him a speedy trail on those charges.

Despite the fact that absolutely no criminal charges were pending against him during any part of that period.

This holding we submit is flatly inconsistent not only with the very language of the Sixth Amendment with talks about an accused in a criminal prosecution but also with analysis of that provision in United States against Marion.

In Marion the Court held that the particular protections of the Sixth Amendment did not extend to the period before an individual had been formally accused of a crime either by arrest or indictment.

Even though that individual may have been aware for an extended period of time prior to his indictment that he was under official investigation and even though he may have suffered severe harmful emotional and financial consequences as a result of that investigation.

It is we believe the logical corollary of these conclusion that as defendant's Sixth Amendment right also did not continue after a criminal proceeding against him has been terminated by a complete dismissal of the charges.

At that point just like a advance of formal accusation the individual does not stand publicly accused of any crime and his liberty is in no way restricted.

His situation, as the Court observed in Marion does not compare with that of the defendant who has been arrested and held to answer.

Now respondent's only response to these arguments is the assertion that his case is essentially indistinguishable from that in Klopfer against North Carolina in 386 US.

Klopfer however presented the question and I am quoting from page 214 of the Court's opinion.

Whether authorities "may indefinitely postpone prosecution on an incitement without stated justification over the objection of an accused".

The unusual North Carolina procedure in Klopfer allowed the State prosecutor to postpone prosecution indefinitely on an incitement that he did not wish to pursue immediately.

The upshot was that since the indictment was not dismissed during awaiting period, the Statute of limitations remain told and the defendant remained under formal public acquisition and under the constant threat of prosecution at the option of the Government.

This Court held that the State procedure violated Klopfer's right to a speedy trial but only because, as the Court stated at page 222, the suspension of his prosecution "indefinitely prolonged the oppression as well as the anxiety and concern accompanying public acquisition".

Respondent of course was under any public acquisition between October 1970 and January 1975, nothing in Klopfer therefore supports an extension of the speedy trial clause to the period when an individual is not the subject of any pending criminal charges.

I should add one final point.

The conclusion that respondent's Sixth Amendment right were not violated by the five year period between the murders of his family in 1970 and his indictment for those crimes in 1975, certainly does not suggest that the propriety of that delay is beyond judicial scrutiny.

There is first the protection of the Statute of limitations which is of course the primary guarantee against the bringing of overly stale criminal charges but there is no suggestion that the Statute was violated here.

And moreover as this Court observed in Marion and reaffirmed last term in United States against Lovasco, the Due Process clause of the Fifth Amendment is an additional protection against unreasonable pre indictment delay.

A lengthy delay prior to acquisition violates due process if it causes actual prejudice to the defense and if the Government's justification for the delay is inadequate.

Although the Court of Appeals did not undertake this analysis, we believe that the District Court and the dissenting judge in the Court of Appeals correctly found that the Due Process clause was not violated in this case.

Indeed respondent does not contend otherwise, respondent has never claimed that the Government's delay in this case was designed to prejudice his defense or was occasioned by tactical reasons and as we have set forth that some length in our main and reply briefs, there is not the slightest proof at this pretrial stage that respondent's defense has actually been prejudiced by the delay.

We therefore submit that the Court should vacate the judgment of the Court of Appeals with instructions to dismiss respondent's speedy trial claim for lack of jurisdiction, so that this case may finally proceed to trial.

Mr. Chief Justice, I would like to reserve the balance of my time.

Unknown Speaker:  You mean to dismiss the appeal from the speedy trial?

Mr. Kenneth S. Geller:  That is correct.

Chief Justice Warren E. Burger:  Mr. Segal.

Argument of Bernard L. Segal

Mr. Bernard L. Segal:  Mr. Chief Justice and may it please the Court.

I ask the Court's indulgence if I may at the outset, if you will bear with me, if I also pass over the facts slightly in this case.

As it seems to me that the Solicitor General's argument has consciously averted some rather I think point in significant findings.

Not my facts that Your Honors pleases but the facts found by the Court of Appeals and the facts found in the most extraordinary military proceeding that precipitated this case in 1970.

The case does start in February the 17th, 1970 with the murders of MacDonald family, the wife and children.

The wounds that Dr. MacDonald referred to by the solicitor of course were testified to at the military proceedings by the both the Government's doctors and the defense doctors, as being life threatening wounds.

The reason for of course was that the one of the Government's multiple theories of trying to explain the case was that these were self inflicted by the accused Dr. MacDonald to cover up murder that he had committed.

In fact the record failed to support that and the conclusion of the military presiding officer in 1970 was that Dr. MacDonald had told the truth, those were his words.

Most extraordinarily which the Government has referred to a great length are the facts from this 1970 military proceedings is that nowhere in the Solicitor General's brief, nowhere in the Solicitor General's argument, does he share with the Court the two and the only two findings that were made by --

Chief Justice Warren E. Burger:  How does the military establishments finding, bear on indictment, leader brought by civil authorities?

Mr. Bernard L. Segal:  If Your Honor pleases, both of these proceedings both the military proceeding 1970, and the proceeding of Federal District Court were proceedings by the same sovereign, the United States.

There was not a separate sovereignty situation here.

It is a continuum, this is a continuous prosecution of Dr. MacDonald by the United States.

As a matter of fact if may when I get into my argument--

Chief Justice Warren E. Burger:  Under two wholly different systems of justice are they not?

Mr. Bernard L. Segal:  That is right, if Your Honor pleases and--

Chief Justice Warren E. Burger:  Military code is one and the civilian code is quite another, is it not?

Mr. Bernard L. Segal:  Yes Mr. Chief Justice, I might just point out, that it is a matter of fact it was the election of the Government as to which of these two systems it might go to.

At the very outset of the case, the investigation was being pursued by both the FBI and Justice Department and the military authorities and it was the Justice Department that participated in the ultimate decision that the prosecution should be brought initially in the military system rather than in the Civilian Court.

If I may though if Your Honor pleases, I do want to share with the Court, I do not mean to prolong the discussion of the facts, but I think they are essential to an understanding of this case.

There are only two findings at the end of the article 32 proceedings, this was the longest article -- article 32 proceeding in the history of the military justice system.

Justice Thurgood Marshall:  It was not a trial, was it not?

Mr. Bernard L. Segal:  I beg your pardon, Your Honor.

Justice Thurgood Marshall:  It was not a trial.

Mr. Bernard L. Segal:  We do not-- because of the special circumstances concerted to be a trial, no Your Honor, that is not the issue for Court which is develops on the Double Jeopardy argument which the Court of Appeals said had merits but reserved any decision on and therefore has not been decided and not before this Court this time.

Justice Thurgood Marshall:  And then what bearing does it have here?

Mr. Bernard L. Segal:  The military proceeding--

Justice Thurgood Marshall:  It was not a trial it was just an investigation.

Mr. Bernard L. Segal:  No if Your Honor pleases, the--

Justice Thurgood Marshall:  It was just an investigation, was it not?

Mr. Bernard L. Segal:  Your Honor, I would not – I do not think that is correct characterization, Mr. Justice Marshall.

I do not think so.

Justice Thurgood Marshall:  Well was he at any time subject to be sentenced by this hearing?

Mr. Bernard L. Segal:  No Your Honor, not the Article 32 proceeding.

Justice Thurgood Marshall:  Well I am talking about, is that all what we are talking about?

Mr. Bernard L. Segal:  The article if I may respond Your Honor in this way, the Article 32 proceedings encompasses more than just a phase that I am now referring to.

The proceeding encompasses then and adjudication and the conclusion of it by the convening authority, again we are talking about issues that relate to Double Jeopardy case there.

Justice Thurgood Marshall:  And their conclusion is that we shall call a general court that is all it says.

It says we will or we would not have general court, well as a changed or whether that is what it does?

Mr. Bernard L. Segal:  The language of the formal order at the conclusion of the military proceeding was to dismiss the charges, but that was a formal piece of language that we did not take cognizance of what the uniform code a Military Justice required to be found by Colonel Rock, at the end if Your Honor pleases.

At the of a proceeding of span something nearly six months with a 2000 page record with 90 pages of findings and summary of the evidence.

Colonel Rock made two findings.

First of all, that the charges were not true, those are the words of the findings.

This is not like a Civilian Court and which probable cause or the lack thereof is the issue.

It is a different unique standard in military system and his findings were that the charge against Dr. MacDonald were not true.

The second finding was contrary as to what the Solicitor suggests that there be further investigation by the civilian authorities, the findings was that a named woman uncovered by the defense as being specifically involved and present at the murder scene, should be the person investigated by the civilian authorities, not Dr. MacDonald, as I think is the seeming implication of way the solicitor presented this morning.

Going to--

Chief Justice Warren E. Burger:  It is not any more than a conclusion of an investigatory authority,as Mr. Justice Marshall has suggested.

Mr. Bernard L. Segal:  The finding--

Chief Justice Warren E. Burger:  That is not trial.

Mr. Bernard L. Segal:  No Your Honor, it is not a trial.

Chief Justice Warren E. Burger:  He was not exposed to Jeopardy, was he?

Mr. Bernard L. Segal:  Not by virtue of being before Colonel Rock, no Jeopardy attached Your Honor -- it is the argument that we think has not been decided by the Fourth Circuit clearly is not the result.

Jeopardy attached when colonel -- when Major General Flanagan entered his final order he was the authority he was the equivalent of the District judge entering a final order.

But again that is beyond the scope of the case before this court.

Let me pass your if Your Honor pleases, just to the other parts of the facts that I wanted to make reference to, and that is--

Unknown Speaker:  Do these facts shed light on why your claim of denial of speedy trail was appealable to the Court of Appeals?

Mr. Bernard L. Segal:  No Your Honor, please I can proceed if you will --

Unknown Speaker:  You shape your own argument which is certainly upheld I hope you will address that point some time during the 30 minutes that a lot of --

Mr. Bernard L. Segal:  I thoroughly intend to Your Honor and I appreciate the suggestion but I do think that it is necessary to understand the case because even the Government itself has said in prior memorandum filed with this Court that this is a unique case and extraordinary case on its facts and I think that the facts require some touching.

If I may then proceed for the question though of the appealability of the denial of the Dr. Macdonald motion for speedy trial prior to trial.

It seems to me that what the Court of Appeals did in accepting this case was neither extraordinary or out of line with the prior decision that rendered itself in Lansdowne and with in facts the concept that were approved by this Court originally in Cohen v. Beneficial Loan Company in 1949 reaffirmed by this Court in Abney.

Conceptually they are the same. If Your Honor pleases, I think that the Court of Appeals, Judge Burstner (ph) [sic; Butzner] writing for the majority made the point very clear when it said this is one of the small classes -- small class of rights that must be reviewed in criminal cases pretrial.

The claim in this case is clearly collateral, the order in this case and I am not necessary saying that every order and every speedy trial case but clearly the order in this case was a final order.

There was a need and the Court of Appeals so found for immediate appellate review of this case because the right would probably be lost forever and clearly the Court of Appeals found as in Cohen that was set fourth, one of the criteria, the right was too important to be denied an immediate review.

Now on the issue of of collateralness of the speedy trial issue which I think is a special question.

I do not ask the Court to accept my words, I ask the Court to accept the words of the Government because in United States v. Marion it was precisely the words of the government to this Court in arguing why the Government should be allowed to appeal the granting of a motion by the defendant dismissed an indictment for denial for speed trial, where the defendant on the appeal to this Court challenged the ability of the government to seek review--

Justice Thurgood Marshall:  The government also cited the statute did it not?

Mr. Bernard L. Segal:  Yes Your Honor the Government cited the statute but the argument--

Unknown Speaker:  What is your statute number.

Mr. Bernard L. Segal:  Your Honor please we --

Justice Byron R. White:  What is your statute number.

Mr. Bernard L. Segal:  1291 we think is the correct statute in this case that this is a final order appealable under that statute.

Court of Appeal so found and I think the Court of Appeal's reasoning is clearly consonant with the reasoning of this Court in Abney.

Now if I might just simply refer thought Your Honor, but I think it is important to understand whether or not this issue is collateral, to simply what the Government said in describing collateralness in the Marion case.

In Marion, the government used exactly If I may from the government's brief in Marion used precisely these words.

It said, "The defendant does not deny that he had committed the acts charged or that those acts constitute a crime" but nevertheless he urges that he can not be prosecuted because of some and the word used here was extraneous factor, such as the toling in the statute limitations or the denial of a speedy trail.

In its reply brief the government returns to the description of speedy trial claim and says such a plea sets up by way of defense acclaimed at bar's conviction whether or not the defendant is guilty and this Court Mr. White writing for the Court in Marion echoes exactly the same language.

It says it is independent of the issues of guilt or innocent.

The question of a speedy trial is not in any way connected with the trial evidence, it is connected simply with the issue of whether or not the government has improperly delayed for an excessive period of time --

Justice John Paul Stevens:  Mr. Segal, but – may I interrupt you just a moment Mr. Segal.

Mr. Bernard L. Segal:  Yes Justice Stevens.

Justice John Paul Stevens:  Under your analysis if I understand it every speedy trail claim would be appealable because that argument could always be made, but the Fourth Circuit did not take that view, they said usually you should wait till after trial, but this case is different.

I do not understand what the Court of Appeals was saying and maybe you can -- are you taking the position that they are always appealable or just sometimes and if so when?

Mr. Bernard L. Segal:  In view of the decision of this court Mr Justice Stevens in Abney, I think that the Speedy Trial claims are appealable as a matter of right as being part of the small class of criminal cases referred to in Cohen and referred to again in Abney.

I will suggest the court that the bubble boo raised that somehow were going to open the flood gates to a lot of frivolous Speedy Trial claims is again unsupported by the facts of the rationality.

Let me point out several things.

First of all there have been 29 years that relapses the Cohen doctrine was first articulated which means that for 29 years defendants and defense lawyers in criminal cases apparently are to presumed to be aware that they could have sought interlocutory appeals from the denial of Speedy Trial claims by District Courts.

As the government points out in its brief there are only two reported cases that we can find in the 29 years of the Cohen case.

It does not indicate some great landmark abuse by District Courts, by lawyers or by Courts of Appeal reviewing these matters.

Justice Thurgood Marshall:  Would you be interested in knowing about how many petitions for certiorari we get based on the Speedy Trial case?

Mr. Bernard L. Segal:  I would think Your Honor that, that will not be changed in any way by the ruling this case.

Justice Thurgood Marshall:  I would like to cut it down.

Mr. Bernard L. Segal:  May I point out Your Honor that in fact there is no floodgate to be opened by this case because the floodgate is open already.

The truth of the matter is that any defendant who has denied his or her motion for Speedy Trial by District Court under the procedures presently intact and which will not be affected by any decision in this case can go to the Court of Appeals with a writ of mandamus.

The only difference between that and what we are talking about now is the notice to the appeal is shorter form.

There is less to be said.

It does not take much for the defendant or the defendant's lawyer to propose a writ of mandamus.

Justice Thurgood Marshall:  Is this assumed that the Bar would not be interested in trying out anything or writing anything?

Mr. Bernard L. Segal:  The assumption of Your Honor--

Justice Thurgood Marshall:  We would assume that-- I do not know if I am right.

Mr. Bernard L. Segal:  I will also assume something else Mr Justice Marshall which is namely that I do not think that if this court carefully articulates the type of Speedy Trial claims that are worthy of pretrial consideration, that if they meet the Cohen standard that I think the Bar would also be preceptive enough to see that.

But I am assuming as to the government's dark view of this case if I may.

The dark view is something along the lines --

Unknown Speaker:  Has this court ever sanctioned review of a denial of Speedy Trial claim by writ of mandamus?

Mr. Bernard L. Segal:  There is no case that I am aware of Your Honor but there is nothing in the law of mandamus that prohibits the defendant.

It is clear that the defendant can not file a writ of mandamus in the court of appeals and --

Justice Thurgood Marshall:  I do not think there is anything in the law that prevents a lawyer from filing a writ of mandamus to stop a judge from breathing -- but I assume that it is done with reason.

Mr. Bernard L. Segal:  Yes Your Honor.

Justice Thurgood Marshall:  And I assume that if you want to have mandamus you can show us a case --

Mr. Bernard L. Segal:  What I am suggesting Your Honor is that mandamus in fact does lie and that the fact that lawyers are exercising expression.

Justice Thurgood Marshall:  And your case is which case?

Mr. Bernard L. Segal:  That I do not have it in my brief I will be glad to see it.

Justice Thurgood Marshall:  We have a mandamus case on Speedy Trial.

Mr. Bernard L. Segal:  I think the law mending clearly it is there.

Justice Thurgood Marshall:  Well do you have a case on that?

Mr. Bernard L. Segal:  Not on my finger tips and if I may with Your Honor's permission I would appreciate an opportunity to submit the authorities after the argument.

But I do suggest the court that mandamus lies, even the most frivolous.

Even assuming Your Honor's position that mandamus does not lie, what does this stop the lawyer from doing it and-

Justice John Paul Stevens:  But Mr. Segal on mandamus, question would be one of law, whether the judge had the authority to deny the motion and he always has the authority to deny it, you would not review the question where the merits on mandamus.

Mr. Bernard L. Segal:  Perhaps I have inadequately stated in my position Mr Justice Stevens.

All I am suggesting of course is not this mandamus may or may not be the proper form.

What I am suggesting is that if lawyers want to badge our appellate courts.

They already have the format to do with it.

Let us assume that mandamus does not lie, does not mean that lawyers may not erroneously perceive that way and being denied by Courts of Appeal may not erroneously petition this court for certiorari.

What I am simply trying to respond to is not to argue the merits or lack that merits of mandamus as a form of relieving this problem but what I want to point out to, I think is essentially the specious nature of suggestion that if this court were to conclude that the rationality --

Unknown Speaker:  You are seriously arguing that if we hold that such an order is appealable, that there would not be a lot of appeals ?

Do you think like that?

Mr. Bernard L. Segal:  I think in the seminal period until the Courts of Appeals handle the cases I will suggest to you.

I do not think that every Speedy Trial argument, every Speedy Trial claim merits a full argument.

The court is perfectly capable or Courts of Appeals are perfectly capable of reading the papers and without argument determining which are without merit.

I have practiced if Your Honor pleases in Federal Criminal Courts of something like 18 years.

I did not need the Cohen case to tell me it was unwise to take interlocutory appeals in criminal cases.

We knew that the Courts of Appeals we all experienced the Courts of Appeals the filing of a paper, the filing of a governments one-and-half page motion to dismiss or on the law of the merits and an answer from the court of throwing out an unmerited appeal.

All I am saying is I would hope this Court would not be led it straight.

Unknown Speaker:  Just one other question, If I may Mr. Segal, your point if I understand is that the speedy trial claim is appealable if it has merit.

Mr. Bernard L. Segal:  No Your Honor my point is that speedy trial claim within the meaning of Cohen as we articulated, Abney is that the speedy trial is one of what I would say only three claims that are appealable and interlocutory phase in criminal cases.

Unknown Speaker:  All was appealable.

Mr. Bernard L. Segal:  Yes Your Honor.

Three aspects --

Unknown Speaker:  Those three are double jeopardy, speedy trial and what is the third?

Mr. Bernard L. Segal:  Bail.

Unknown Speaker:  Bail.

Mr. Bernard L. Segal:  Stack versus Boyle --

Unknown Speaker:  Why would not you, why would not --

Justice Thurgood Marshall:  What that they did?

Mr. Bernard L. Segal:  No Your Honor that is clear as not, it is not an issue --

Justice Thurgood Marshall:  You made if as an allegation that the Grand Jury was not properly impounded and no member to Grand Jury was a live person, you can not get that to the Court of Appeals no way am I right?

Mr. Bernard L. Segal:  I do not think as it stands now Your Honor.

Justice Thurgood Marshall:  That is right that you can bring this out --

Unknown Speaker:  Suppose a defendant at Courts of Appeal, a denial of his motion which has two parts to it, one there was inordinant pre-indictment delay which he had violated by by constitutional rights.

There was a inordinant delay after indictment between indictment and trial, which violated right to a speedy trial, would not you say both of those are appealable under your submission?

Mr. Bernard L. Segal:  No if Your Honor please that was not my submission I would offer a lesser submission.

What I am talking about here is the Sixth Amendment issue, the pre-indictment delay --

Unknown Speaker:  I know but due process motion is also based on the proposition of the trial should not take place at all.

Mr. Bernard L. Segal:  The difficulty is though Your Honor is the finality issue.

If we are using the Cohen standard. Cohen requires there would be a finality.

In this particular case their was finality because the District judge entered a very specific order and wrote an opinion and his opinion was that in this case, the running -- in order to be speech trial right on the Sixth Amendment, there had to be a public acquisition on that score, the judge was right and was upheld, and that language was correctly found by the Court of Appeals.

But he erred and the Court of Appeals found the err when he said that the public acquisition in this case had not taken place until January 1975 when the indictment was returned.

As judges Burstner (ph) [sic; Butzner] and Russel [sic; Russell] found in the Court of Appeals, the public acquisition had taken place in April of 1970, in May of 1970, when the government called a press conference and announce the formal charges.

In this case there was nothing further that a trial can add.

There was nothing that can be shown by a trial.

Nothing will happen before Judge Dupree the District Judge, in any way can alter the speedy trial claim.

Because he has held as a matter of law.

That the speedy trial claim in this case ran only from January 25, 1975.

We have no argument, no quarrel with that date and proceeding to the District Court.

Our quarrel is the five years delay found by the Court of Appeals to be absolutely unjustified, absolutely without rational explanation except if Your Honor pleases for the one offer by the government below.

The Court of Appeals found and quoted at length, the statement by governments counsel in January 1975 at preliminary proceeding of this case.

When asked by the United State magistrate, what is it that took five years to restart this case again, it having started.

Back in April of 1970?

In a moment of cantor, all too often not her.

Governments Counsel said it was bureaucracy.

What happened was he said to the majesty and that was repeated again later on, what happened Your Honor was, we needed the FBI laboratory to do some of the laboratory technical work and bureaucracy prevented us from 1970 to 1975 from getting the FBI laboratory.

That is the reason.

Now I might say in its brief to this court the government has shifted now to what is now its third position on what caused the delay in this case.

I must say something.

I am profoundly surprised that counsel for the government would get up to this court and say and see the MacDonald itself is an absolute example of the delay that defendants could bring.

I have set forth at page 40 the proceedings in which the government has dragged its foot, been late, extended time and doubled the extended time asked for unprecedented extensions of time to file motions and briefs that are not allowed in the court of appeals, has asked for double time to file petitions for extension to this court.

It is set out in Footnote at the page 40 y in the name of Habin (ph).

In this, of all the cases where the government has really nothing to say for its delay, except the words or the government's attorney who said bureaucracy, they would suggest the Macdonald case, is the one which in an example to the contrary.

The court of appeals found that there were two-and-half years in this case which absolutely nothing of significance took place in the Justice Department.

The chronology of this case was that the charges were finally dismissed in the October of 1970.

Now, we contend, it is position if Your Honor please that those dismissal by General Flanagan constitutes Double Jeopardy but since as not the issue here arguendo will take the governments position that it was not final.

The government in fact proceeded reasonably promptly after that dismissal to restart the investigation.

In January of '71 just less than two-and-half months later, a new team of military investigators were assigned.

As a matter of fact ten investigators were assigned full time for one year.

They worked in to December of '71.

We find no fault with that proceeding in the course of those eleven-and-half months, they reinterviewed every witness in this case.

They have reinterviewed 699 witnesses, they did a reinvestigation job.

We do not find any fault with that.

Either to the Court of Appeals but from December of 1971 and until the return of the indictment, there is no significant activity by the government nothing that justifies it.

The investigators took about six months to write a report.

That even that was in the hands of the Justice Department in the June of 1972.

Again the Court of Appeal thought it was interesting to read the government's own words, not only bureaucracy explanation.

But the Court of Appeals made reference to the affidavit given by the government of Kevin Moroney [sic; Maroney], an Assistant Attorney General in the criminal division.

Moroney was purporting to explain why once this massive data, two complete sets of investigations, thorough work by every member of the military involved, why the Justice Department then did nothing from June of 1972 until the Grand Jury was convened in August of 74.

And in the affidavit of Mr. Moroney, the Court of Appeal cited, we have this report and we assigned it to lawyers and we reassigned it.

Those are were Mr. Moroney's words we assigned it and reassigned it, we reviewed and re-reviewed it, and nobody made a decision.

No one did anything. As a matter of fact the Solicitor General concedes in his argument and he knows the facts, and we know the fact, only two pieces of investigative work took place after December 1971.

They were explained in the brief they are trivial, have nothing to do with the merits of the case.

Nothing has happened.

What really was the explanation was that no one wanted to make a decision, that is clear from the findings.

We can tell you we know that is the reason, it was possible by three independent pieces of evidence.

One Colonel Rock had to make a finding in this case Your Honors.

He had sat through six month of proceedings, he wrote 2000 page record in five weeks.

He prepared a 90 page summary of findings and conclusions and details which have never been challenged, which the government accepted.

He made his decision in five weeks.

Later on, a new U.S. attorney took over this case in Eastern District of North Carolina.

Now he took over whole of office, he was not even in the office prior to his taking that position.

In the matter of four months, he not only took control on office, he finished a 56 page report to the Justice Department and said, "I want to go ahead and prosecute Macdonald, send me trial lawyer".

What in march of 1972 did the Justice Department do?

It sent it to another lawyer to review the report, he had just finished 56 page evaluation.

The Justice department, he said, "send me lawyer, we will do something" and Justice Department did nothing but reviewed again and all the affidavits, there is no action by anyone.

Finally, last example, in May of 1974 the case finally wound up on the hands, now some four years after the crime, nearly two years after the CID had finished its reinvestigation in the hands of Victor Wahrheit(ph) [sic; Woerheide] another staff attorney.

In one month, he was able to read the entire file, all the envelops, all the drawers of it.

Interview with Judge the North of Carolina, interviewed CID investigators, talk with other attorneys in case and conclude that he wanted to convene a grand jury investigation.

He did that all the month and a month later a grand jury was in panel.

The case was susceptible of resolution.

The Court of Appeals found there was no adequate explanation for two-and-half --

Justice Thurgood Marshall:  Mr. Segal, do you realize neither you nor I can decide on the problems that just go around, do you agree with that?

Mr. Bernard L. Segal:  If Your Honor please if you suggest the --

Justice Thurgood Marshall:  Do you agree with that.

Mr. Bernard L. Segal:  I suppose, that we do not have any direct influence, but I think the words of this Court have influence.

What we are --

Chief Justice Warren E. Burger:  Then after all this, indictment was had, case was tried and the jury returned a verdict, is that not, I am not sure what these matters you are discussing have to do with it the issue that you are presenting here.

Mr. Bernard L. Segal:  Well there are two issue Your Honor.

I must say that the argument has gone to the merits of the Speedy Trial arguments, I did not want leave the podium without an opportunity to express some of of the facts of the matter, I just returned them to the appealability issue has said, Your Honor's own words in the Strunk case I think are very instructive.

This case must be, all speedy trial claim cases must have a right to the appeal.

Not all deserve a full hearing and argument but in Strunk a Court of Appeal attempted some solution short of dismissing the indictment, which this Court has held to be the only relief.

They attempted to shorten the defendant's sentence by 292 days to accommodate what they found to be as there was an unreasonable ten month delay.

Your Honor set fourth, that you can not correct a speedy trial defect by somehow playing games with the numbers.

The only correction for the defect of the speedy trial, that is the denial of a trial that is less than speedy, once it has been denied cannot be re-given to the defendant.

Unknown Speaker:  Well how does that fair on the appealability of the order denying such a motion?

Mr. Bernard L. Segal:  Your Honor please, that the Cohen doctrine, reiterated in Abney says that is this the kind of matter which requires will of right be lost.

If it is not in fact, allow a pre-trial and my suggestion to court is as follows.

Number one; the speedy trial right means as it means anything, the right to not be given a trial other than the one that is speedy, that is once the government is delayed inordinately and without justification, there is nothing more the government can do to correct the defect.

You cannot do anything to change the situation.

If that is correct, If Your Honor pleases then the defendant's right, right of the accused is not to be tried by a Court which in effect has no capacity to correct in any way the wrong that was done to him.

Chief Justice Warren E. Burger:  And you think it corrects it, if six months, 12 months, 18 months later the Court of Appeals decides there was no denial of a speedy trial and then you are back where you were with the loss of 18 months more.

How conceivably could the concept of speedy trial be advanced by allowing interlocutory appeals, if that is the only issue.

Nothing in Abney on which you seem to rely would give the slightest hints.

Mr. Bernard L. Segal:  I think the criteria if Your Honor pleases in Abney are perfectly in synchronization with these facts and the circumstances of speedy trial.

May I just say this and my time I see is running out, but I think is running out but I think is important I share with the Court the following.

If you were to accept the government's concept that speedy trial -- and I am talking only now about Sixth Amendment speedy trial not talking about Fifth Amendment Due Process issue because in this case the judge's decision is complete, there is nothing that can be changed in regard to the speedy trial decision by the trial.

Justice Byron R. White:  This is why I make it, just so I say that I gather now that you are saying that, an order denying, any motion dismissed, on speedy trial grounds is appealable both when the judge denies it on the grounds -- this really is not the speedy trial claim at all as in this case or it might also if he denies it on the ground yes it is a speedy trial claim but it is without merit, we think both are appealable.

Mr. Bernard L. Segal:  I must confess Mr. Justice White I did not perceive Judge Dupree's order as saying it was not a speedy trail claim I think he --

Unknown Speaker:  You seem to think that it is a if you say that you leisure the time in this case only after the 75 indictment between then and file there is not any speedy trial claim.

Mr. Bernard L. Segal:  That is correct you honor.

Unknown Speaker:  And that is just a due process claim.

Mr. Bernard L. Segal:  We have not even contented that at this stage.

It is not even before this court.

Our contention it is the government brief that is forced it I think upon the court, the suggestion that somehow we had to prove prejudice.

May I just finish with one sentence Your Honor that is to accept the government's contention, that the speedy trial claim must wait after trial is to say that only the guilty will have the benefit of the speedy trial claim because only a person who has been convicted may then have the right to speedy trial vindicated by the reversal of that conviction.

We say in a case such as this one where in fact there has been extraordinary proceeding, which the finding was the charge were not true, we say in a case such as this one that a person who goes to trial and is even acquitted, it is not a vindication of the Sixth Amendment speedy trial right to say there is nothing more you could do.

I think an argument by the government is somewhat disingenuous which says the only vindication for the right is you have to be convicted and then a appellate court will tell you that you should never have been trialled in first place.

Chief Justice Warren E. Burger:  Do you have anything further Mr. Geller?

Rebuttal of Kenneth S. Geller

Mr. Kenneth S. Geller:  Mr. Chief Justice, first briefly I would like to address the suggestion that the government somehow been inconsistent, the position we are taking in this case and the position.

We took in Marion that whether speedy trial claim is collateral.

Threshold issue in Marion, there was a appealability issue whether the government could appeal under the old version of Section 3731 and that in turn depended upon whether the District Court's dismissal of the indictment had resolved any issues going to the general issue in the case. Of course, a speedy trial issue is collateral to the issues to be litigated a trial in the sense that a resolution of the Sixth Amendment question does not require inquiry and the truth of the allegations in the indictment.

But we think the court must have meant something more than that when it used the term collateral in Cohen and Abney or else virtually any pretrial motion to dismiss would be collateral as Mr. Justice Marshall's stated.

We think that the Court meant that an issue was collateral if it would be no easier to resolve the issue after trial than before.

In other words would it be affected in any way by the decision on the merits of the case and speedy trial claims would be as I mentioned earlier, if the defendant is acquitted then not only is there no need to resolve the claim but it goes a long way towards suggesting that his allegations are prejudice were not substantial.

More importantly if he is convicted then the record, the trial record is generally indispensable in determining whether or not his Sixth Amendment rights have been violated and no better proof of this need be offered than that the Courts Of Appeals almost always resolve post conviction appeals raising speedy trial claims by reference to the evidence that used the trial, as of course this court did in the Barker v. Wingo in analyzing Barker speedy trial claim.

Now, secondly, its true that the remedy for a speedy trial violation is dismissal of the indictment but that does not indicate -- Sixth Amendment creates a so called right not to be tried.

The difficulty with respondent's reasoning once again is that, dismissal of the indictment is the remedy for wide range of violations both constitutional and non-constitutional such as all those involving defects in the indictment.

If interlocutory appeals would have been allowed in each of these cases under the theory that the nature of the remedy implies a right not to be tried, then the collateral order exception would swallow up the final judgment law in criminal cases.

In addition --

Unknown Speaker:  Mr Geller can you just refresh my recollection, Marion, the appeal was by the government?

Was that not?

It had been that the motion to dismiss had been granted.

Mr. Kenneth S. Geller:  That is correct.

Unknown Speaker:  So that you were under a different statute, no that case is entirely different.

Mr. Kenneth S. Geller:  Well that is another, of course another reason to distinguish it but even there we had to show that the Sixth Amendment, the District Court's resolution, the Sixth amendment question did not implicate any issues going to guilt or innocence.

Unknown Speaker:  Well it was because completely an abatement within the meaning of the old Criminal Appeals Act.

Mr. Kenneth S. Geller:  And secondly, the argument that the nature of the remedy in Sixth Amendment cases implies a right not to be tried is inconsistent with this court's decision last term in Abney.

As I mentioned in response to question Mr Justice Stevens asked me initially, in that case in addition to a double jeopardy claim the defendants also raised the claim that their indictment failed to state an offense, and if they had been right of course then the remedy would have been dismissal of the indictment.

Nonetheless, this court held that is not the type of claim that can be appealed prior to trial.

Finally, I would like to discuss the reasons for the delay in this case because Mr Segal has used a large portion of his argument trying to explain why the delay was unfair.

I think it is fair to say that much of the delay in this case was attributable to the strong feeling on the part of many persons in the criminal division of the Department of Justice.

The charges are serious as the ones in this case, simply should not be brought unless the Government was absolutely convinced that they would ultimately prove successful.

To begin with, we are not talking about a five year delay.

No one has ever claimed that the Department of Justice unduly delayed before June of '72 when it received the C.I.D's report of its reinvestigation of the crimes, and its decision with regard to Grand Jury was made in the Summer of '74 and respondent was indicted in January of 1975 so essentially talking about two or two-and-half year period, now during that two or two-and-a-half years there were two prevailing views within the Government.

One group of Attorneys thought that the case should be brought to a Grand Jury immediately with the view towards bringing charges against respondent.

Another group of attorneys while also convinced that respondent was guilty, frankly could not believe that we could convince a jury with that.

Chief Justice Warren E. Burger:  Would this be a part of an ordinary argument on a speedy trial claim with the differing views or exclusive thought within the criminal divisions?

Mr. Kenneth S. Geller:  Well both in resolving a Sixth Amendment trial claim and a Fifth Amendment pre-indictment delay claim, the court must have of course analyze the reasons for the delay of--

Chief Justice Warren E. Burger:  But they are not of course, on any record Mr. Geller.

The fact that your friend elected to you some of his time going in preps outside the record is no reason--

Mr. Kenneth S. Geller:  Well I think that there is a record to support some of the statements I am about to make.

These statements were made in oral argument before both of the lower Courts in this case.

One of the reasons I might say that there is no record in this case is that we think the District Court incorrectly analyzed this case is not raising any Sixth Amendment issues at all because of the Four year delay between the crimes in January 1975, respondent was not under any formal accusation so he quickly dismissed any Sixth Amendment argument without inquiring--

Unknown Speaker:  Would you turn that position?

Mr. Kenneth S. Geller:  Yes we do.

I just wanted to give the Court the impression that this is not a case in which the files laid in some dusty cabinet for four years with no one looking after the case at all.

That certainly the impression the respondent tries to give during every moment from June of 1972 until an indictment was procured in this case.

Someone in the Department of Justice was trying to push this case further but for reasons that I was about to get into a number of the superiors in the department thought that the case should not be brought unless they could be absolutely certain that the jury would convict and they had trouble believing that jury would convict not because they did not think respondent was guilty but because of the nature of the crimes, who the victims were plus the fact that the Government's evidence--

Unknown Speaker:  Mr. Geller, I repeat the cogitations within the Department of Justice really are not irrelevant to this issue.

Mr. Kenneth S. Geller:  Well I merely wanted to give the Court the impression that there is in our view no substance to the allegation that the Fourth Circuit made that the government proceeded at a leisurely pace or respondent's suggestions that the government was guilty of negligence or ineptitude, a point that I wanted to make and I close by saying that in our view the delay here was intended to protect respondent's rights by not bringing unfair charges.

Unknown Speaker:  Mr. Geller the factual matter that you do try to develop was presented in the oral argument in the Court of Appeal--

Mr. Kenneth S. Geller:  And District Court.

Justice John Paul Stevens:  Just the same way that the factual justification was presented in the Lovasco case was it not?

Mr. Kenneth S. Geller:  Well Mr. Justice Stevens the facts that I was about to present were not disputed by anyone in the District Court or in the Court of Appeals.

Justice John Paul Stevens:  No but this is not the first time that the government has justified delay by having the advocate state to an Appellate Court the reasons for the delay.

Mr. Kenneth S. Geller:  Well its not just in a Appellate Court--

Justice John Paul Stevens:  Exactly the same thing in the Lovasco case.

Mr. Kenneth S. Geller:  Well that defending what happened in the Lovasco case Mr. Justice Stevens, these allegations were made to the District Court.

If the District Court had thought they were not in any way contested, he could well have held an evidentiary hearing but as I was about to say there has been no allegation --

Justice John Paul Stevens:  I am just suggesting the Court has approved the procedure you are following today.

Mr. Kenneth S. Geller:  Thank you.

Chief Justice Warren E. Burger:  Thank you gentlemen.

The case is submitted.