Free Reply to Response - District Court of Arizona - Arizona

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Barbara Hull, State Bar No. 011890 86 West University Drive, Suite 101A Mesa, Arizona 85201 Telephone: (480)834-0002 Facsimile: (480)834-0003 Attorney for Defendant
IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT MCKAY, Defendant.

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Case No.: CR-03-1167-16-PHX-DGC DEFENDANT MCKAY'S REPLY IN SUPPORT OF MOTION TO DISMISS FOR VIOLATION OF SPEEDY TRIAL RIGHTS (Assigned to The Honorable David G. Campbell)

Defendant, Robert McKay, through undersigned counsel, hereby submits his Reply in support of the Motion to Dismiss for violation of speedy trial rights. The Government's pleading is nonresponsive. It cites caselaw but provides no analysis or application of that caselaw. The Government concedes that the presumption of a violation attaches after one year and concedes that the Sixth Amendment protects against excessive incarceration. Yet, the Government merely cites examples without applying the Baker balancing test it concedes comes into play once the presumption attaches In Barker, the Supreme Court listed "some of the factors which courts should assess in determining whether a particular defendant has been deprived of his [speedy trial] right. Though some might express them in different ways, we

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identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530. Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. . . . A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown. We have discussed previously the societal disadvantages of lengthy pretrial incarceration, but obviously the disadvantages for the accused who cannot obtain his release are even more serious. The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent. Finally, even if an accused is not incarcerated prior to trial, he is still disadvantaged

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by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility. We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution. 407 U.S. 531 to 533, [footnotes omitted]. When applying the factors to the case at bar, the Government first acknowledges that Mr. McKay has already spent 16 months in custody. As addressed in previous pleadings, he has served the time in custody he would serve if convicted. He has not been convicted. He has requested release for the reasons therein cited. Any pretrial resolution proposed to Mr. McKay must be limited to time already served. Regarding cause for delay, Defendant incorporates the numerous pleadings citing the delays occasioned by the Government in its discovery violations. The Government has caused all delay in this case. We are on the second superseding indictment, which was a transparent tactical response by the Government to one of many of this court's discovery orders. But for the discovery violations by the Government, this case would have proceeded to trial in 2004. So, yes, the cause of delay falls squarely on the Government.
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Prejudice attaches most importantly pursuant to Barker to the fading memories of witnesses for the defense. All Harrah's witnesses interviewed stated that the Mongols started the fight in Laughlin in April of 2002. The Government has concealed the videotapes that memorialize those actions, making the memories of those witnesses even more critical. The oppressive time that the Government has taken to bring this case to trial is the overriding factor here. Applying the law to the facts, the balancing test of Barker demonstrates that Mr. McKay's right to a speedy trial has been violated. Defendant McKay again asks that this Court dismiss all counts. RESPECTFULLY SUBMITTED this 17th day of January, 2006.

______/S/___Barbara L. Hull_____________

Barbara L. Hull, Attorney for Mr. McKay Original filed electronically this date. Courtesy copy of the foregoing sent via email this date to: The Honorable David G. Campbell United States District Court 401 West Washington Street Phoenix, Arizona 85003-0001 at: [email protected] Timothy Duax, Esq. Assistant U.S. Attorney Two Renaissance Square, Suite 1200 40 North Central Avenue Phoenix, Arizona 850034-4408 at: [email protected] ____/S/___________________
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