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In the Supreme Court of the United States No. 20-101 In the Supreme Court of the United States LLOYD HARRIS, PETITIONER, v. STATE OF MARYLAND ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF SPECIAL APPEALS OF MARYLAND BRIEF OF AMICI CURIAE MAINE, VERMONT, AND WASHINGTON ASSOCIATIONS OF CRIMINAL DEFENSE LAWYERS IN SUPPORT OF PETITIONER ELIE SALAMON R. STANTON JONES ARNOLD & PORTER Counsel of Record KAYE SCHOLER LLP ANTHONY J. FRANZE 250 West 55th Street ALLISON GARDNER New York, NY 10019 ARNOLD & PORTER (212)-836-7360 KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 [email protected] Counsel for Amici Curiae i TABLE OF CONTENTS Page Table of Authorities ............................................................ ii Statement of Interest ..........................................................1 Introduction and Summary of Argument ..........................2 Argument ..............................................................................4 I. The Decision Below Departs from the Longstanding Balancing Standard Employed To Assess Whether Delays in the Criminal Process Are Unconstitutional .....................................4 II. The Improper Prosecutorial Motive Test Impedes a Fair Defense .............................................11 A. Requiring Defendants to Prove Prosecutors’ Improper Subjective Motives Amidst an Ongoing Prosecution Is Profoundly Unfair and Problematic ..........11 B. Extreme Pre-Indictment Delay Can Make It Difficult or Impossible to Mount a Meaningful Defense ......................................14 1. Memories Fade ...........................................14 2. Witnesses Die or Become Unavailable ....17 3. Evidence Is Destroyed or Lost ................18 Conclusion ...........................................................................21 ii TABLE OF AUTHORITIES Page(s) Cases Barker v. Wingo, 407 U.S. 514 (1972) ..................................... 3, 5, 6, 17, 20 Betterman v. Montana, 136 S. Ct. 1609 (2016) ............................................. 5, 6, 8 Commonwealth v. De Rose, 307 A.2d 425 (Pa. Super. Ct. 1973) ............................. 17 Crawford-El v. Britton, 523 U.S. 574 (1998) ....................................................... 12 Dickey v. Florida, 398 U.S. 30 (1970) ......................................................... 15 Harlow v. Fitzgerald, 457 U.S. 800 (1982) ....................................................... 14 Klopfer v. North Carolina, 386 U.S. 213 (1967) ....................................................... 14 Mathews v. Eldridge, 424 U.S. 319 (1976) ............................................... 2, 9, 11 Nieves v. Bartlett, 139 S. Ct. 1715 (2019) ................................................... 14 Rothgery v. Gillespie County, Texas, 554 U.S. 191 (2008) ....................................................... 12 State v. Cote, 118 A.3d 805 (Me. 2015) ................................................. 2 State v. Hales, 152 P.3d 321 (Utah 2007) ....................................... 18, 20 State v. King, 165 A.3d 107 (Vt. 2016) ............................................ 1, 11 iii State v. Knickerbocker, 880 A.2d 419 (N.H. 2005) ............................................. 16 State v. Krizan-Wilson, 354 S.W.3d 808 (Tex. Crim. App. 2011) .......... 13, 17, 19 State v. Lee, 653 S.E.2d 259 (S.C. 2007) ..................................... 18, 19 State v. Luck, 472 N.E.2d 1097 (Ohio 1984) ................................. 18, 20 State v. Oppelt, 257 P.3d 653 (Wash. 2011) (en banc) ................ 1, 12, 16 State v. Whiting, 702 N.E.2d 1199 (Ohio 1998) ................................. 18, 20 Stoner v. Graddick, 751 F.2d 1535 (11th Cir. 1985) .................................... 10 United States v. Atisha, 804 F.2d 920 (6th Cir. 1986) ........................................ 13 United States v. Benson, 846 F.2d 1338 (11th Cir. 1988) .................................... 17 United States v. DeClue, 899 F.2d 1465 (6th Cir. 1990) ...................................... 12 United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555 (1983) ............................................... 4, 7, 10 United States v. Ewell, 383 U.S. 116 (1966) ......................................................... 5 United States v. Greer, 956 F. Supp. 525 (D. Vt. 1997) ..................................... 13 United States v. Irizarry-Colon, 848 F.3d 61 (1st Cir. 2017) ............................................. 2 iv United States v. Jones, 524 F.2d 834 (D.C. Cir. 1975) ...................................... 16 United States v. Leon, 468 U.S. 897 (1984) ....................................................... 12 United States v. Lovasco, 431 U.S. 783 (1977) ................................... 8, 9, 10, 11, 21 United States v. MacDonald, 456 U.S. 1 (1982) ............................................................. 6 United States v. Marion, 404 U.S. 307 (1971) ....................................... 8, 14, 16, 17 United States v. Rogers, 118 F.3d 466 (6th Cir. 1997) .................................. 12, 13 United States v. Taylor, 487 U.S. 326 (1988) ......................................................... 6 United States v. Thomas, 404 F. App’x 958 (6th Cir. 2010) ................................. 13 United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) ....................................................... 19 Statutes Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq., ................................................. 6 Other Authorities 7 Jones on Evidence § 61:4 (7th ed.) ................................ 15 Brendan Koerner, How Long Do Cops Keep Evidence?, Slate, Aug. 27, 2004, https://slate.com/news-and-politics/2004/08/ how-long-do-cops-hang-onto-evidence.html .............. 19 Darren Allen, The Constitutional Floor Doctrine and the Right to a Speedy Trial, 26 Campbell L. Rev. 101 (2004) ...................... 14, 15, 16 v Deanna D. Caputo & David Dunning, Distinguishing Accurate Eyewitness Identification from Erroneous Ones: Post-Dictive Indicators of Eyewitness Accuracy ....................................................................... 15 Frank B. Ulmer, Using DNA Profiles to Obtain “John Doe” Arrest Warrants and Indictments, 58 Wash. & Lee L. Rev. 1585 (2001) .......................... 15 Phyllis Goldfarb, When Judges Abandon Analogy: The Problem of Delay in Commencing Criminal Prosecutions, 31 Wm. & Mary L. Rev. 607 (1990) .......................................................... 9, 16 Preservation of Evidence, Innocence Project, https://www.innocenceproject.org/preservation- of-evidence (last visited Oct. 1, 2020) ......................... 19 Psychological and Scientific Evidence in Criminal Trials § 12:14 ................................................................. 15 Shapiro et al., Supreme Court Practice § 4.5 (11th ed.) ........................................................................ 11 1 STATEMENT OF INTEREST1 Amici are the Maine, Vermont, and Washington affiliates of the National Association of Criminal Defense Lawyers. The organizations’ primary roles are to promote high quality, constitutionally sound, professional legal representation to individuals accused of a criminal offense; to provide quality training and continuing legal education seminars, programs, and materials to lawyers and other participants in the criminal justice system; and to foster the development of fair and constitutional state and federal criminal laws and procedures. Amici have a significant interest in this case because their members face disparate standards for determining whether pre-indictment delay violates due process, underscoring the need for this Court’s review. For instance, amicus the Vermont Association of Criminal Defense Lawyers includes members who represent criminal defendants in the State of Vermont, which, like the decision below, applies the “improper prosecutorial motives” test to evaluate whether pre-indictment delay violates due process. State v. King, 165 A.3d 107, 113-14 (Vt. 2016). By contrast, amicus the Washington Association of Criminal Defense Lawyers includes members who represent criminal defendants in the State of Washington, which has rejected the improper prosecutorial motives test as too “formalistic and rigid,” and instead employs a “more nuanced” case-by-case balancing test. State v. Oppelt, 257 P.3d 653, 658 (Wash. 2011) (en banc). 1 Pursuant to Rule 37.6, amici affirm that no counsel for a party authored this brief in whole or in part and that no person other than amici, their members, or their counsel made a monetary contribution to its preparation or submission. Counsel of record for both parties received notice at least 10 days prior to the due date of the intention of amici to file this brief and consented to its filing. 2 Amicus the Maine Association of Criminal Defense Lawyers includes members who represent criminal defendants in the State of Maine, where the state courts apply the nuanced balancing test, but the federal courts follow the rigid improper prosecutorial motives standard. Compare State v. Cote, 118 A.3d 805, 811 (Me. 2015), with United States v. Irizarry-Colon, 848 F.3d 61, 70 (1st Cir. 2017). Review is needed to resolve the conflict because due process should not depend on the state where a defendant is charged or whether the delay involved state versus federal indictments. Further, review is needed to correct the manifest error below and in other jurisdictions that adopt the improper prosecutorial motives standard. That test is out of step
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