United States District Court, Northern District of Illinois, E.D
October 17, 1955
UNITED STATES OF AMERICA
JOHN PAUL CHASE.
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
"* * * 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
defendants now can possibly obtain fair trials."
The two years' delay which so disturbed Judge Laws pales to
insignificance when we consider the twenty years' delay with
which Chase has been faced. Nor does the gravity of the offense
with which he is charged change the situation. In Petition of
Provoo, D.C.Md. 1955, 17 F.R.D. 183, 196, a motion to dismiss was
granted on the grounds that a speedy trial had been denied when
the charge was treason resulting in the death of Captain Thomson
in a Japanese prison camp. The court, in an opinion which cites
and discusses many of the relevant cases, remarked:
"The offenses charged could not be more serious.
But it would be a poor tribute to Captain Thomson to
deny to this defendant the rights for which Captain
Thomson gave his life."
This indictment charges the most serious offense known to our
law. Its very
gravity demands that the defendant have all possible protection
from the law. The thought of ordering him to trial on this charge
after a lapse of twenty years shocks the imagination and the
conscience. While I have not been informed as to how many of the
witnesses are available to either side, it can almost be
judicially noticed that the passage of that length of time will
have made some of them inaccessible. Even if two decades have
left them alive and within the jurisdiction of this court,
certainly their memories of those long past events are clouded.
They could not be said after that length of time to be testifying
to what they remember; they would be recalling something as in a
dream, a kind of phantasmagoria, rather than an independent
recollection. The human mind is so constructed that remembrance
of even the sharpest experiences dulls with time. Witnesses,
however honest, could not respond with any accuracy to
cross-examination, and another important right would thus be lost
In summary, petitioner has not by mere knowledge (if he had it)
waived his Constitutional right to a speedy trial. The stakes are
too high to imply a waiver without some overt act on his part.
This is particularly true when the charge is murder; to require
a man to beg for a trial on such a charge, with its enormous
penalty, requires too much of human nature. Conversely, to keep
him in suspense as to his fate for twenty years approaches the
inhumane. Further, a waiver will not be implied when the action
required to avoid it is virtually impossible. While it is easy to
say that a man confined to Alcatraz should take active steps in
his own behalf, there are practical obstacles in his path which
make this easier to say than to do. Accordingly, the requirement
of demanding a speedy trial will not be made of one in this
situation, and his failure to take action will not be construed
as a waiver of his rights.
The motion to dismiss the indictment will be granted.
The attorney representing Chase on this occasion, Eugene T.
Devitt, was appointed by the Court at the time this motion was
filed. I wish to thank him for the time, skill, and conscientious
research which he has devoted to the matter.
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