burden on the prosecution, holding that "the government must come forward and provide its reasons for delay. These reasons are then balanced against the defendant's prejudice to determine whether the defendant has been denied due process." 34 F.3d at 451. The core holding of Sowa is that preindictment due process is determined by a balancing test -- not a rigid standard of fault. It is clear from this language that Sowa never dictated a standard of intentional governmental fault that must be satisfied in all cases; like the Fourth and Ninth Circuits, it implemented a flexible balancing test.
In accordance with this standard, we find that the government's preindictment conduct here reaches a level of recklessness that, balanced against the prejudice to Defendant, violates "fundamental conceptions of justice." Howell, 904 F.2d at 895. We further conclude that, given the extreme prejudice caused by the government's long delay in this case, even negligence on the government's part would violate Defendant's due process rights. The government's explanations for its delay are "impermissible reasons" under the circumstances presented here. Sowa, 34 F.3d at 450 (citing United States v. Marion, 404 U.S. 307, 325, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971)).
Simply put, if this case doesn't present a case of unconstitutional prejudicial preindictment delay, no case will. The circuits that require a showing of intentional bad faith delay to gain a tactical advantage over the defendant seem to set an impossible threshold for criminal defendants. No defendant can get into the mind of a prosecutor to determine why a case was delayed, and certainly no prosecutor will ever admit to such bad faith purposes. Lavasco, at the very least, must be read to allow defendants to prove bad faith circumstantially, by the absence of a legitimate investigatory reason.
The Lavasco Court touched on only two types of delay -- investigative delay and bad faith delay "to gain tactical advantage over the accused." 431 U.S. at 795. The two are fundamentally different and, in this Court's view, mutually exclusive. Consequently, if the prosecution cannot come up with any investigative justification for preindictment delay, Lavasco provides authority for presuming bad faith. Such a circumstantial method of proving bad intent is common to our criminal justice system -- prosecutors frequently rely on it to obtain convictions for intent-based crimes. This interpretation of Lavasco also recognizes the fact that, in our adversarial system of justice, it is highly unlikely that any delay is truly neutral or benign. Marion, 404 U.S. at 321-22 (possible prejudice is inherent in any delay, however short). For these reasons, the Seventh Circuit correctly determined in Sowa that a balancing of prejudice and the reasons for delay, not a direct showing of bad faith, is the standard for finding a due process violation.
We reiterate, consistent with our January 5, 1998 oral ruling, that we do not believe that the Assistant United States Attorney sat back in his office and carefully waited to indict this case until events transpired to turn the case in the government's favor. (See 1/5/98 Tr. pp. 20-21). Still, the absence of any legitimate investigatory reason for the long preindictment delay is strong circumstantial evidence of bad faith under Lavasco's either-or scheme of investigative vs. non-investigative delay.
We reject the government's attempt to heavily rely on the fact that the Seventh Circuit has never found a preindictment delay that violated the Constitution. Each case is different and there is no indication that our Circuit has ever reviewed the granting of a motion to dismiss for prejudicial preindictment delay. Yet various district courts, including one in our district, have dismissed indictments for unconstitutional preindictment delay. See, e.g., United States v. Corral-Chaidez, 1987 U.S. Dist. LEXIS 2975, 1987 WL 9577 (N.D. Ill. 1987) (Marshall, J.); United States v. Sample, 565 F. Supp. 1166 (E.D. Va. 1983); United States v. Alderman, 423 F. Supp. 847 (D. Md. 1976).
The Government's Recklessness In This Case
"Reckless" conduct means acting in a way that is "indifferent to consequences." Black's Law Dictionary 1270 (6th ed. 1990). The Third Circuit has defined reckless prosecution in the double jeopardy context by reference to the Model Penal Code's definition of recklessness: a "conscious disregard" of a "substantial and unjustifiable risk." Government v. Scuito, 623 F.2d 869, 872 n.7 (3d Cir. 1980). The government's preindictment conduct here more than satisfies these definitions.
Over the last few years, the Seventh Circuit and various other courts have warned the United States Attorney's Office that administrative, bureaucratical, non-investigatory problems cannot provide a compelling justification for long delays in returning indictments. See, e.g., United States v. Bell, 1993 U.S. Dist. LEXIS 3920, *6, 1993 WL 95368, at *2 (N.D. Ill. 1993). In 1991, Judge Bauer wrote a concurring opinion that expressed his "strongly held belief that criminal justice, if it is to be effective at all as a detriment, must be administered in hot blood; that is, as close to the criminal act as possible." United States v. Ashford, 924 F.2d 1416, 1426 (7th Cir. 1991) (Bauer, J., concurring) (expressing concern over four years delay in routine indictment; however, no prejudice shown by defendant). In 1992, Judge Flaum referred to Judge Bauer's concurring opinion in warning the United States Attorney's Office that excessive workloads and staff turnover could hardly provide a compelling justification for a long preindictment delay. United States v. Anagnostou, 974 F.2d 939, 943 (7th Cir. 1992) (holding that missing deceased witness did not prejudice the defendant but expressly warning that holding should not be read to condone a five-year indictment delay). Thus, by 1992, the United States Attorney's Office was aware that waiting to indict a case on the eve of the running of the applicable statute of limitations may be pushing the "due process" envelope to the edge.
Despite this knowledge, the government remained indifferent to the severe consequences of delaying Defendant's indictment. The government had, by its own admission, fully completed its criminal investigation of Defendant by December 1992. It was aware that its case was a circumstantial arson case and that Defendant's main alibi witness, his father, was 78 years old. The government was also well aware that circumstantial arson cases are not easier to defend as they get older. The government's case relies mainly on financial motive evidence -- evidence that never fades and remains documented in financial and insurance records. In contrast, Defendant's ability to mount a defense suffers from the fatal combination of diminished memories, flawed government reports, lost evidence and unavailable witnesses.
While the government also prejudiced itself somewhat by delaying its prosecution of this case, the prejudice is overwhelmingly felt by Defendant in this type of circumstantial arson-for-profit case. This fact was confirmed at the New Year's Eve evidentiary hearing in which Special Agent Mirocha confirmed that he wrote down only important incriminating information when he arrived on the scene. He had no independent recollection of any potential exculpatory statements made to him by the only three persons at the site of the fire in 1991, which included Defendant and his now-deceased father. How can ordinary, untrained lay-persons be expected to remember the important events over six years later when a trained criminal investigator cannot remember key conversations on which the government is attempting to base a conviction? In this case, the Court personally saw and tested the actual prejudice that faded memories visited on the Defendant.
In spite of its knowledge about the circumstances surrounding the investigation, ill-prepared reports, elderly and sick key witnesses, a case agent who passed away, faded memories of the government's own investigative agents, and missing physical evidence, the government consciously delayed seeking an indictment in 1993, 1994, 1995 and 1996. This prosecutorial behavior was at the very least reckless, and, under the circumstances presented by this case, violated the Due Process Clause.
This has been a very difficult opinion for this Court to issue. The Court's difficulty was not because of the factual and legal issues presented by this opinion. Instead, after much contemplation, the Court realizes that its difficulty lies in the fact that it is a true believer in our country's adversarial system of justice. In this case, the Court has had to step out of its traditional role of presiding over an adversarial trial that would have determined whether Defendant was guilty or not guilty, and instead issued an order that pulls this case away from the adversarial process.
Yet, as one legal commentator has profoundly noted: "time is not a neutral feature with respect to the quality of adversarial trials." Phyllis Goldfarb, When Judges Abandon Analogy: The Problem of Delay in Commencing Criminal Prosecutions, 31 WM. & MARY L. REV. 607, 607 (1990). The requirement of prompt and fair justice has been part of the common law tradition since the Magna Carta. This right was recognized in the early state constitutions even before it was embodied in the Sixth Amendment to the United States Constitution. See United States v. Lovasco, 431 U.S. 783, 799, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (Stevens, J., dissenting). The reason this fundamental constitutional right was recognized so early on in our nation's history is the well-established fact that a trial conducted years after the alleged commission of an offense inevitably suffers from impaired fact finding.
It is truly unfortunate that the unexplained delay by the United States Attorney's Office caused foreseeable prejudice under the unique circumstances presented in this case. This blame must be squarely shouldered by the entire United States Attorney's Office and not just the randomly assigned Assistant United States Attorney working on this case. This case does not diminish the high regard that this Court feels for the United States Attorney's Office of this district and its difficult and complex task in managing its resources and establishing its prosecutorial priorities.
Yet, the Office would do well to heed the prior admonition of Judge Bauer to prosecute cases in "hot blood". The office should continue to adhere to its high standards of winning or losing its cases on fair, if not equal, footing with the defendants it chooses to prosecute.
In this case, an unfortunate, yet foreseeable, combination of circumstances came together to cause great prejudice to Defendant. The United States Attorney's Office probably will very seldom confront the type of unique circumstances presented in this case, yet it would do well to implement and adhere to a standard preindictment monitoring system to ensure that the timing of its charging decisions does not unnecessarily raise serious constitutional issues. This monitoring system may be especially needed in circumstantial arson cases given Congress' express desire to lengthen the applicable statute of limitations.
Ultimately, this Court needed to decide whether compelling Defendant to stand trial after the government delayed the indictment in a recklessly prejudicial fashion, with no legitimate investigative purpose, violates those fundamental conceptions of justice that define our community's sense of fair play and decency. The Court's answer to this question is an unequivocal "yes". Thus, the indictment must be dismissed with prejudice.
United States District Judge
DATED: January 12, 1998