Now comes the Defendant and moves that this Honorable Court dismiss the complaint in this case because the defendant was entitled, pursuant to Mass.R.Crim.P. Rule 36 to a speedy trial. The defendant has thereby been denied his rights to Due Process of Law under the Sixth Amendment to the United States Constitution and Articles XI and XII of the Massachusetts Declaration of Rights.
In support of this motion, Defendant attaches a copy of the docket sheet through 6 April 1993 and states the following facts:
A supporting memorandum and
herewith this motion.
I hereby depose and say on information, belief, and/or personal knowledge and under the pains and penalties of perjury that:
The facts are those you wrote in your motion: facts of
Signed under the pains and penalties
The offense, rape of child, for which the Defendant is being charged allegedly occurred between 19__ and _____ 19__.
Since ________ 19__, when the Defendant first learned that he was to be charged with Rape of Child, __ months have passed. Since _______ 19__, when the Defendant was first charged in District Court with Rape of Child, ___ months have passed. Since _______ 9__, when the Defendant was indicted with Rape of Child, ___ months have passed. Since the Defendant was arraigned in Superior Court on the charge of Rape of Child, 14 more months have passed -- even after deducting the 18-day delay caused by defense counsel during midsummer 1992.
During the 14 months since Defendant's indictment, the prosecution has not been prepared to serve and file oppositions, has not been prepared for arguing motions, has procrastinated in filing discovery motions, has not appeared in Court on scheduled dates, has lost documents produced by the Defendant, necessitating Defendant to re-serve as much as three times the same documents, and has twice not been prepared for trial.
The defendant has been caused considerable concern and anxiety because of the unjustifiable delay throughout the lengthy proceedings. The child has been continually prepared over the four-year period to testify for trial by a social worker who has worked in cooperation with the District Attorney's office (as of January 19__, the child had had over 100 visits with the social worker). Thus during those four years, the Defendant has been significantly prejudiced by the delay of trial and will be further prejudiced by even further delay of trial.
Therefore, the Defendant asserts his right to a speedy trial pursuant to Rule 36.
By not being afforded a speedy trial on the charges in this case, the Defendant has been denied his constitutional rights under both the state and Federal constitutions as well as under M.R.Crim.P. Rule 36.
Under Rule 36, when the defendant is not brought to trial within the prescribed time period, he is automatically entitled to a dismissal when he (a) has not acquiesced to the delay, (b) is not responsible for the delay, and (c) and does not benefit from the delay. Commonwealth v. Look, 402 N.E.2d 470 (1980). In such a case, the burden shifts to the prosecutor to justify the delay.
That prejudice is addressed by M.R.Crim.P. Rules 36(c)(1) and (2), which require that the defendant establish that the delay he has suffered is unreasonable, that it was caused by the prosecution, and that he has been prejudiced by the delay, e.g., his anxiety and concern of the defendant. Barker v. Wingo, 407 U.S. 514 (1972).
In this case, the delay has been caused repeatedly by the unpreparedness and procrastination of the Commonwealth.
Significantly, the key Commonwealth witnesses have gained substantial training and education during the four years, so that they will appear to the jury to be considerably more knowledgeable than they actually were at the time the child was first interviewed and at the time the child's memory and perception of events was first distorted or contaminated.
The child herself has gone through different stages of development.
As a result of the unjustifiable delay by the Commonwealth in bringing the charge forward first in District Court and then, when it appeared that John Doe was going to get custody of the child in Probate Court, in indicting and arraigning him in Superior Court, John Doe has been caused considerable concern and anxiety. Thus the defendant has been significantly prejudiced by the delay of trial thus far and will be further prejudiced by even further delay of trial.
Therefore, the Defendant asserts his right to a speedy trial pursuant to Rule 36 and thereby is entitled to dismissal with prejudice.
For the above reasons, a dismissal
of the charge against the defendant is the only appropriate remedy.