2016 VT 131
By Andrew Delaney
Does a three-year-plus delay in bringing charges after an investigation concludes violate due process under the U.S. or Vermont Constitutions? As always, it depends, but the short answer is no.
Back in ’08, the Department for Children and Families (DCF) started a sexual assault investigation, which DCF sent over to a detective. The detective interviewed the complainant, sent the case to the State’s Attorney’s office, and interviewed a couple more witnesses. From what I can gather, the complainant and her friend (one of the witnesses) were teenagers in 2008-09 and the alleged acts occurred in the early 2000s. And then the case kinda sat around from 2009 until 2012.
In the meantime, DCF sent a substantiation letter to Mr. King. Though Mr. King never appealed the substantiation, he did ask for it to be expunged. The DCF Commissioner denied the request.
In August 2012, the complainant’s mom called the State’s Attorney’s office to ask about the case. This led to a review of the dormant file by a new prosecutor (the old one had left the office). The prosecutor checked back in with mom to make sure the complainant wanted to go forward with the case, noting an email exchange in the file didn’t give a definitive answer. Mom said complainant did want to go forward. And two felony charges—aggravated sexual assault on a child under ten and lewd and lascivious conduct with a child—were filed against Mr. King at the end of the month. No substantive evidence was gathered after early 2009.
Before trial, Mr. King moved to dismiss, arguing that the three-plus-year gap between the conclusion of the initial investigation and the charges being filed violated his due process rights under the Vermont Constitution. The trial court had a hearing and concluded that the analysis under the Vermont Constitution is the same as under the federal. According to the trial court, this meant that Mr. King had to prove that he was substantially prejudiced by the delay and that the State delayed on purpose to gain an advantage. Because Mr. King had proved neither, the motion was denied.
At trial, the State’s case was based on the complainant’s and her friend’s testimony. Defendant attacked the inconsistencies between prior statements, deposition testimony, and trial testimony. There were a few.
In closing argument, “the State acknowledged that the complainant’s memory of the events was inconsistent.” But then the State referred to the five-year delay between the initial report and trial, and opined that the inconsistencies were a sign of honesty because the complainant didn’t include every detail she could have if she wanted to get somebody in trouble. I’d bet at that point, the defense wanted to make a My Cousin Vinnie opening-statement style response. Well, that’s what I’d want to do anyway.
The jury hung.
Mr. King filed another motion to dismiss. The trial court denied it on largely the same grounds as the pretrial motion to dismiss. Anticipating a retrial, the trial court, with the parties’ consent, sent the when-does-a-preaccusation-delay-violate-due-process question to the SCOV.
The SCOV begins by noting that what matters are the prejudice to the accused and the reasons for the delay. A defendant always has to “demonstrate actual substantial prejudice” to meet the first part of the test. There’s a split on the reasons-for-the-delay front, however. In a majority, the defendant has to show improper prosecutorial motive, while a small minority view it as a balancing test between the prejudice to the defendant and the government’s justification for the delay.
There’s a quick jurisprudential history lesson (involving this case and this case if you want to nerd out). The basic idea is that the SCOTUS has held that mere delay isn’t improper—it’s when the prosecutor’s motivation is improper combined with real prejudice to the defendant that the due-process clause might require dismissal. With that precedent, many courts have treated preaccusation delays as requiring dismissal only when coupled with actual prosecutorial misconduct.
And so, the SCOV concludes that it had actually “previously adopted the majority standard, albeit without extensive analysis of the second prong” in this conveniently hyperlinked case. Things are not looking so good for Mr. King’s motion to dismiss. If he doesn’t have prejudice and impermissible purpose, his motion doesn’t have legs.
The SCOV does throw a bone to the defense bar. It notes that the “intent to gain a tactical advantage” isn’t the only way a defendant can show improper motive. The SCOV doesn’t exactly say what else would show improper motive, but it’s a foothold for a future argument.
And so, the SCOV holds that in order to establish a due-process violation, a defendant has to show: (1) “actual substantial prejudice”; and (2) “prosecutorial misconduct intended to gain a tactical advantage or to advance some other impermissible purpose that violates ‘fundamental conceptions of justice’ or ‘the community’s sense of fair play and decency.’”
Mr. King makes a valiant effort to convince the SCOV to adopt the minority view. The SCOV spends a few paragraphs explaining that it has already adopted the majority view and that the minority view doesn’t make sense.
The SCOV then turns to the Vermont Constitution. Here, the SCOV spends a fair amount of time analyzing the issue only to conclude that the same due-process standard applies.
And then we get to Mr. King’s case. The SCOV concludes that Mr. King didn’t hit the prejudice or improper motive elements and so the motion fails. The SCOV reasons that the kind of prejudice Mr. King has to show is enough to make it an unfair trial. There was no lost evidence or a disappeared key witness. The inconsistencies actually are a bit of an advantage to Mr. King according to both the trial court and the SCOV.
The SCOV also reasons that there’s no evidence of an impermissible purpose. Here, there was the question of whether the complainant wanted to go forward with the case, and the State didn’t get confirmation of that until the mom-prosecutor exchange years after the initial investigation.
So that’s our standard in Vermont and it looks like Mr. King is facing another trial.
Justice Robinson concurs in the result, but advocates for a different test under the Vermont Constitution.
Remember that case cited by the majority (the conveniently hyperlinked case) for the idea that the SCOV has adopted the majority test? Justice Robinson ain’t buying it. In fact, in her view, the case does not preclude prosecutorial negligence from making out a due-process violation. The conveniently hyperlinked case was a “lost evidence” case and it acknowledges that negligently lost evidence can impact a defendant just as much as maliciously lost evidence.
Because the core question here is whether the delay violates “fundamental conceptions of justice” and “the community’s sense of fair play,” Justice Robinson reasons that one shouldn’t just look at prosecutorial motivation, but the prejudice and the prosecutor’s actions should be balanced against one another. In some cases, actual prejudice might be caused by negligent prosecutorial conduct, so Justice Robinson doesn’t want to close the door that the majority seemingly has.
Because Mr. King hasn’t shown actual substantial prejudice, Justice Robinson concurs in the result.