THE WAITING GAME: HOW PREINDICTMENT DELAY THREATENS DUE PROCESS AND FAIR TRIALS.

• Author: Rang, Danielle M.

1. INTRODUCTION

   Every day for months there is a police car waiting outside your house.' Every day for months, your children are taunted and bullied at school. Murderer. People are always whispering behind your back, and their eyes follow you everywhere you go. You have always enjoyed the small-town life, until now, when it seems like the whole world has turned their backs on you and your family. Killer. After nearly a month of detectives following you to work, your boss suggests that you take an unpaid leave-of-absence. The police presence is hurting the image of the local bakery where you work. Liar.

   Three months ago, you found your three-year-old son dead in his crib. You remember everything so vividly. His blue lips, his cold hands, and your tears on his face, as you tried desperately to bring him back. You did everything you could. Your family was destroyed, and even worse, through the rumor mills and gossip of small-town life everyone believes that you killed your own toddler son.

   After months of interviews, interrogations, whispers, and pejorative eyes, it seems that the police have lost interest in the breadcrumbs they had followed to you. Slowly, cautiously, and optimistically, you believe this nightmare is finally behind you. Your family finally begins to put life back together and move past this tragedy. The town forgets, and for the next fifteen years, your family becomes whole again, until you hear the word that drains the color from your face and the hope from your heart--indictment.

   After fifteen years, surely this mess is over. Your family has moved on, the town has moved on, and you're innocent! How could a jury possibly take you from your kids, your family, your life, so many years later? After speaking to your attorney, you learn there is no statute of limitations on murder. The county coroner who performed the autopsy on your son has passed, and his primary care physician has long since moved away and forgotten your family. You do not even remember the name of the babysitter who cared for him the night before he passed, and you yourself have done everything to block the events of that day from your mind. Your recollections have faded, as have the memories of everyone you would have called to your defense. You have nothing. You have no evidence, you have no defense, and you are out of time.

   Courts have held that there is no remedy available for preindictment delay under the Sixth Amendment (2) to the United States Constitution, for the right to a speedy trial does not attach until after a criminal defendant is indicted. (3) Where then lies the remedy for a defendant who has lost the ability to present an adequate defense when a prosecutor has purposefully or negligently delayed the indictment for so long? (4) The Supreme Court of the United States has stated that statutes of limitation are the primary safeguards for a defendant seeking relief from overly stale charges while recognizing that the statutes cannot fully define the rights of a defendant prior to indictment. (5)

   This comment will attempt to shed some light on the semi-obscure issue of preindictment delay by first explaining the narrow hole that exists between the applicable statute of limitations and the Constitutional safeguards within the Fifth and Sixth Amendments. (6) After assessing the evolution of circuit postures and how several states have approached the issue, this comment will analyze how current law in South Dakota is ready to be supplemented with an updated decision and additional considerations to ensure that defendants within the state are protected from overbearing and oppressive delays prior to trial. (7) Other scholars have examined this issue on a national scale, (8) but this comment will focus on South Dakota and its neighboring jurisdictions to highlight the vagueness of South Dakota's existing law. (9)

   Courts and scholars have addressed and criticized the issue of "Preindictment delay" (10) for many years now. (11) Generally, preindictment or pre-accusation delays are considered to be a delays on the part of the government to bring charges in a timely manner that result in some type of prejudice against the defendant and advantage to the prosecutor in a criminal trial. (12) On the one hand, we assume defendants are protected from stale charges by the state statute of limitations, (13) but in some instances, there is no applicable state statute of limitations for the crime, and the delay is tactical, oppressive, and without justification. (14)

   While some defendants have argued the Sixth Amendment guarantees of a speedy trial apply prior to indictment, the Supreme Court has repeatedly rejected that contention. (15) Facially, the Sixth Amendment protects against an unreasonable restraint of liberties by ensuring that all criminal defendants "shall enjoy the right to a speedy and public trial." (16) However, "[t]he Sixth Amendment's guarantee of a speedy trial is applicable only after a person has been 'accused' of a crime." (17) Some may cite to the history of English common law in an effort to establish that the framers intended for the right to a speedy trial to extend to those who stand unaccused for extended periods of time; dating as far back as the twelfth century in England, it was recognized that special rules governed the accused. (18) However, the Court has always quickly dismissed such claims and has stated, "[t]he framers could hardly have selected less appropriate language if they had intended the speedy trial provisions to protect against pre-accusation delay." (19)

   In cases where a person stands unaccused for month or years, we rely on the state statute of limitations to protect against the bringing of stale charges; however, the Supreme Court has conceded that the statute of limitations cannot fully define the rights of a criminal defendant who stands unaccused for an extended length of time. (20) Where there has been an intentional, unreasonable delay prior to indictment that results in actual and substantial prejudice to the defendant, the Due Process Clause of the Fifth Amendment may require that the charges be dismissed. (21)

   While many courts agree that there is a potential Due Process violation when there is an intentional delay in bringing charges against a criminal defendant, courts disagree about the proper test to apply as well as what set of facts would lead to a dismissal as a result of the delay. (22) This is the hole in our criminal justice system known as preindictmcnt delay. (23)

2. BACKGROUND AND HISTORY

   One of the earliest references to preindictmcnt delay occurred in 1956, in Taylor v. United States, where the D.C. Circuit Court of Appeals determined that a three-year delay in indicting a criminal defendant substantially prejudiced his ability to present an adequate defense and call witnesses to support his claims. (24) The Taylor court considered other factors in this case (including the government's failure to inform the defendant that he had been indicted) but observed that a three-year delay "certainly prevented [Taylor] or his attorney from preparing a proper defense." (25) The court ultimately found that because the defendant lost his ability to present a compelling defense due to the prosecution's misconduct, in combination with other factors, justice required that the indictment be dismissed and the defendant be found not guilty as a matter of law. (26)

   In this background and history section, Part A will discuss the two landmark Supreme Court cases that the circuits and states have interpreted and developed over time into the different approaches used across the nation. Part B will discuss the evolution of preindictmcnt caselaw in the circuits and discuss the different approaches taken. Part C will provide a more detailed look into several states with novel approaches and the states geographically closest to South Dakota for a comparison to neighboring jurisdictions. A complete list of what approach each state or circuit has taken can be found in Appendixes A and B.

   1. MARION AND LOVASCO

      The Supreme Court directly addressed the issue of pre-accusation delay without any other aggravating factors in United States v. Marion. (21) In Marion, the defendants had been involved in selling and installing various home improvement appliances and were allegedly using fraudulent business practices over the course of several years. (28) They were indicted in April of 1970 for crimes that allegedly occurred between March of 1965 and February of 1967. (29) Throughout the length of the delay, a series of newspaper articles outlined the United States' Attorney's investigation and claims that indictments would soon follow. (30)

      Defendants asserted the government delayed indictment for over three years, which resulted in a violation of their constitutional rights under the Fifth and Sixth Amendments. (31) They alleged no specific prejudice, only that the delay was "unreasonably oppressive and unjustifiable" and that they were "bound to have been seriously prejudiced by the delay of at least three years." (32)

      The Court discussed why the Sixth Amendment is not to be considered in cases involving activities prior to indictment (33) and reasoned that the applicable state statute of limitations can act as the appropriate safeguard against stale claims. (34) Yet, the Court took a deeper dive:

      Nevertheless, since a criminal trial is the likely consequence of our judgement and since appellees may claim actual prejudice to their defense, it is appropriate to note here that the statute of limitations does not fully define the appellees' rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at the trial that the prcindictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an...