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October 17, 1955


The opinion of the court was delivered by: Sullivan, District Judge.

The indictment in this cause No. 28613, charging Chase with the murder of F.B.I. Agent H.E. Hollis on November 27, 1934 at Barrington, Illinois, was filed on December 31, 1934; an indictment No. 28680, charging him with the murder of F.B.I. Agent S.P. Cowley at the same time and place, was filed on January 28, 1935. On February 19, 1935, a plea of not guilty was entered as to each indictment and trials reset for March 18, 1935. Defendant was tried and found guilty in case number 28680; he was sentenced by this Court in March, 1935, for the term of his natural life, and has since that time been confined to Alcatraz, except for the last year, which he has spent at Leavenworth. On April 27, 1955, petitioner filed a motion asking for a speedy trial on this indictment, or in the alternative for its dismissal. A hearing was held on the motion, and the matter was taken under advisement on briefs.

The motion is predicated on petitioner's Constitutional right to a speedy trial. In view of the fact that over twenty years has elapsed since the indictment was returned, there is no doubt that he has not had such a trial; nor does the government contend that his incarceration has deprived him of the right to one. It is not disputed that Chase at no time before the filing of this motion asked the court for a trial; and it is the government's position that the right to a speedy trial is waived if no positive demand is made. Many cases are cited in support of this proposition, including Morland v. United States, 10 Cir., 1951, 193 F.2d 297; Shepherd v. United States, 8 Cir., 1947, 163 F.2d 974; Worthington v. United States, 7 Cir., 1924, 1 F.2d 154; Kyle v. United States, 9 Cir., 1954, 211 F.2d 912; Phillips v. United States, 8 Cir., 1912, 201 F. 259; Miller v. Overholser, 1953, 92 U.S.App.D.C. 110, 206 F.2d 415. These opinions state in general terms that unless demand is made for it, the right to a speedy trial is forfeited. Analysis of them, however, shows that each involved an action in avoidance or delay of trial more positive than mere silence or inaction. For example, in three of the cited cases (Morland, Shepherd, and Kyle), trial was necessarily delayed since defendant had fled the jurisdiction and had not been apprehended. In the Phillips case, defendant had several times asked for continuances; in Worthington, the court said he had "acquiesced" in the delay; in Fowler v. Hunter, 10 Cir., 1947, 164 F.2d 668, the defendant had filed various delaying motions. These cases, and others like them, are based on the logical thought that "Delays which have been caused by the accused himself can not, of course, be complained of by him." Shepherd v. United States supra, 163 F.2d at, page 976.

The evidence produced at the hearing did not bring the instant situation within the spirit of these cases, since it failed to show that Chase took any action to avoid or delay trial. In fact, the evidence showed, if anything, only that Chase was aware of the existence of the indictment. Chase denies this, and his evidence tended to prove that his first knowledge of the situation was in 1954 when he came to Leavenworth. It is not necessary to make a finding of fact on this point; it may be assumed (without so finding) that Chase knew of the indictment. The government apparently seeks to equate mere knowledge with acquiescence; this equation is not drawn by the law, nor is it realistic in fact. This is particularly apparent when it is sought to apply it to one confined to jail.

Even assuming the general rule to be that a demand must be made for a speedy trial, an exception must be made in favor of one who is in fact powerless to take this action. In the case of Chase, he was confined for nineteen years to Alcatraz in the State of California. The practical difficulties which would have faced him in attempting, under the conditions there existing, to obtain a speedy trial in Chicago need not be detailed; they were sufficiently described at the hearing on the motion. For the first seven years of his incarceration, he was unable to talk to his fellow prisoners, under the "silence" system then in force at Alcatraz; his only communication was with his brother, in strictly censored conversations. To require him to demand a trial under these circumstances would be to ask the impossible. This the law will not do, particularly when the penalty is the loss of a valuable Constitutional right.

Of the cases cited above, only Kyle v. United States and Morland v. United States involved defendants confined to jail during the delay in trial. These opinions were not concerned with waiver, but held that the government was powerless to bring the defendants to trial, since the Attorney General and the state courts respectively refused to part with their custody. No such disability on the part of the government is shown or intimated here; it is not suggested that he could not have been brought to Chicago for trial at any time. In fact, there could have been no better time than immediately at the conclusion of the other trial. The two Special Agents died at the same time; and it appears from the court records that all witnesses were subpoenaed for both trials.

The Kyle and Morland cases are not pertinent here, and authority must therefore be sought elsewhere. Arrowsmith v. State, 1915, 131 Tenn. 480, 175 S.W. 545, L.R.A.1915E, 363, involved a situation very similar to this one. The facts are indicated in the opinion:

    "As we have seen, the orders entered on October 24,
  1912, by which the several untried cases against
  Arrowsmith were `retired from the docket until the
  expiration of said sentence,' were made in the
  absence and without the knowledge or consent of the
  accused, who was at the time an inmate of the state
  penitentiary, and without the knowledge or consent of
  his counsel. * * *
    "The record discloses that no effort was made by
  the prosecution to put the accused on trial, though,
  confessedly, there was sufficient time and
  opportunity therefor. The fact that the defendant was
  then incarcerated was no legal excuse for the delay,
  as has been observed.
    "Arrowsmith was conditioned so that he could not
  personally demand that his own trial be proceeded
  with; and without the knowledge of either himself or
  his counsel the court in legal effect, through the
  order, continued the cases for approximately two
  years — needlessly and vexatiously."
  175 S.W. 547.

In Chase's case, also, the indictment was stricken from the docket without his knowledge, on motion of the government. The record shows that on April 2, 1936, on motion of the United States Attorney, the indictment was stricken with leave to reinstate; it was reinstated on March 9, 1937, and again stricken with leave to reinstate on May 4, 1942.

In Fulton v. State, 1929, 178 Ark. 841, 12 S.W.2d 777, 778, where the defendant had been confined to jail on another charge for two years, it was held that he had not waived his right to a speedy trial:

    "* * * as it is stipulated that appellants have
  not been brought into open court and put upon trial,
  or given an opportunity to demand a trial, we hold
  that these men, who have had no opportunity to demand
  a trial, should not be regarded as having waived this
  valuable right." (Emphasis added.)

The right to a speedy trial is indeed a very precious one. It is a basic concept of our system of justice, articulated and made secure by the Sixth Amendment, that a fair and impartial trial is impossible after a long lapse of time. The effect of a delay in trial was described by Judge Laws in United States v. McWilliams, D.C. 1946, 69 F. Supp. 812, 815:

    "As in all long delayed cases, the witnesses now
  are scattered; some are not accessible, more
  particularly to the defendants who are without funds;
  the memories of witnesses as to events occurring many
  years ago are not clear. * * * I do not see how these

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