Youngstown Daily Legal News

Court rules long delay did not violate due process

ANNIE YAMSON
Special to the Legal News
Published: March 3, 2017

The 6th U.S. Circuit Court of Appeals ruled recently that an eight-year delay between and indictment and trial did not violate the due process rights of a defendant.

The decision came after a three-judge appellate panel considered Ohio prisoner James Brenson's appeal from the judgment of the U.S. District Court for the Southern District of Ohio which denied his petition for a writ of habeas corpus.

Brenson was convicted of aggravated murder and related charges for the 2000 killing of Norman Herrell in Delaware. The trial took place in 2008.

"Determination of a due process violation because of delay will necessarily involve a delicate judgment based on the circumstances of each case," Judge Alan Norris wrote on behalf of the 6th Circuit court's appellate panel. "However, the court has noted that the Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment

"Finally, prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt."

The appellate panel noted Brenson's previous appeal in state court, in which he argued that eight years after the murder, witness memories faded and key evidence in the case was likely to have been lost or destroyed.

He also claimed that changed address information for key witnesses made it difficult for him to investigate his case and prejudiced his efforts to explore all possible defenses available to him.

The court of appeals in that proceeding found Brenson's claims to be "too speculative" and held that they "failed to rise to the level of concrete proof."

The court went on to conclude that, even had Brenson shown actual prejudice, he failed to show "an intentional device on the part of the government to gain a decided tactical advantage in its prosecution. ... The lapse between the alleged incidents and the actual indictment was the result of investigative delay and the government's efforts to make out its best case against Brenson."

"As the opinion of the Ohio Court of Appeals recounts at length, the investigation of Mr. Herrell's murder took a number of twists and turns," Norris wrote. "Obviously, it is always preferable that a prosecution - especially one for murder - be brought in as timely a fashion as possible.

"However, to prevail on his due process claim, (Brenson) must show actual prejudice due to the delay in prosecution and strategic use of the delay by the prosecution to gain a tactical advantage."

The appellate panel held that, under the Antiterrorism and Effective Death Penalty Act, it owed deference to the Ohio Court of Appeals decision which concluded that Brenson had failed to establish entitlement to relief.

"And nothing in its reasoning strikes us as either contrary to established federal law or based upon an unreasonable interpretation of the facts," Norris wrote.

Brenson also included in his appeal arguments that his trial should have been severed from that of his codefendant and that the prosecution abused the grand jury process.

The 6th Circuit court held that the law favors the joinder of defendants' trials and that that is a decision that lies squarely within the discretion of the trial court.

It also noted again that the prosecution of Brenson's case "took a number of odd twists and turns over the eight years" between Herrell's murder and the start of trial.

One of them involved Brenson's decision to testify before a grand jury in 2008 by invitation, not subpoena, on the morning that a complaint was filed charging him with aggravated murder and before he knew of any warrant out for his arrest.

That testimony was used against him at trial and Brenson claimed that it was obtained in violation of his right to counsel. He insisted that he was entitled to counsel once a complaint issued.

"No one questions that he was entitled to counsel when testifying before the grand jury," Norris wrote. "However, (Brenson) contends that his waiver of counsel could not have been 'knowing' because he was facing a charged offense that carried the death penalty. Under these unusual circumstances, relying on Miranda warnings ignores the gravity of the situation."

Siding with the district court, the appellate panel characterized the state's actions with regard to the grand jury testimony as "deeply concerning."

Norris noted that the prosecutor knew that a complaint and arrest warrant had issued that morning charging Brenson with aggravated murder.

Nevertheless, the state permitted Brenson to testify without informing him of the development.

"In our view, this decision walks a fine ethical line between technical legality and the spirit of our criminal justice system, and we would urge prosecutors to approach that line with caution to ensure that an accused's rights are sufficiently protected," Norris wrote. "Despite these reservations, the district court agreed that the Ohio Court of Appeals decision was not contrary to clearly established law. We agree."

Given the deference that the 6th Circuit was required to give to the state court of appeals, it held that Brenson was not entitled to relief on his claims.

Judges Julia Gibbons and John Rogers joined Norris to form the majority.

The case is cited Brenson v. Coleman, Case No. 15-4015.

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