PUBLISHED:October 14, 2022

Students in Appellate Litigation Clinic mount successful appeal before 3rd Circuit

Note: This article was originally published on Law.com. Read it online here.

'1,520 Days or Nearly 50 Months' From Arrest to Jury: Duke Law Students Help Overturn Convictions for Speedy Trial Delays

"We are grateful to the students from Duke Law’s Appellate Litigation Clinic and their advisor, Sean E. Andrussier, for accepting the assignment," Judge Richard G. Stearns wrote in the appellate court opinion. "Student Elizabeth Brown superbly represented Kennedy at oral argument."

October 13, 2022 at 11:10 AM

 

Duke University law students successfully argued an appeal before a federal appellate panel on behalf of a criminal defendant who claimed his Sixth Amendment right to a speedy trial was violated when his case took 50 months between his arrest and jury selection.

On Sept. 10, 2021, the U.S. Court of Appeals for the Third Circuit agreed to hear a habeas petition for the defendant, Chal Kennedy, Jr., who was found guilty of a slue of robbery charges and subsequently sentenced in to 10 to 15 years in prison.

After considering the case, the three-judge panel agreed that Kennedy’s speedy rights trial rights were violated and reversed the district court ruling with instructions to grant the habeas petition and order Kennedy’s release.

Students from the school’s Appellate Litigation Clinic, including Brendan Clemente, Lewis Hallowell, Kendall Huennekens and Elizabeth Brown, were appointed as pro bono counsel, with the assistance of their adviser, to represent Kennedy in the matter. Brown argued the case before the court on May 25.

“We are grateful to the students from Duke Law’s Appellate Litigation Clinic and their advisor, Sean E. Andrussier, for accepting the assignment,” Judge Richard G. Stearns wrote in the appellate court opinion. “Student Elizabeth Brown superbly represented Kennedy at oral argument.”

The school directed comment to Andrussier, but he declined to comment for this story. Andrussier recently left the school to return as of counsel to Womble Bond Dickinson’s business litigation group, where he had worked for a decade before his academic career.

Stearns is a U.S. district court judge for the District of Massachusetts, sitting by designation. The appeal was heard by Stearns and circuit Judges Cheryl Ann Krause and Peter J. Phipps.

“We also commend Assistant District Attorney Peter F. Andrews for his skilled and fair-minded representation of the Commonwealth,” Stearns wrote in the opinion.

Kennedy had failed to find relief under the Pennsylvania Post-Conviction Relief Act, and his appeal was rejected by the Pennsylvania Superior Court. On July 18, 2019, Kennedy filed a pro se habeas petition in the Eastern District of Pennsylvania where he argued his right to a speedy trial had been violated. The district court declined to issue a certificate of appeal, and instead accepted the recommendation of the magistrate judge to deny the petition on grounds of procedural default.

In agreeing to hear Kennedy’s case, the Third Circuit identified two issues for appeal: ”whether the District Court erred in finding Kennedy’s Speedy Trial claim procedurally defaulted; and if so, whether Kennedy’s right to a Speedy Trial was violated.”

According to the opinion, Kennedy was arrested on Aug. 17, 2009, by Philadelphia police during an armed home invasion.

At his initial appearance on Aug. 28, 2009, Kennedy’s attorney requested the case be continued until Sept. 23, 2009. There were two more continuances which were not clearly explained in the record, according to the opinion. But the defense asked for pre-trial discovery and filed an omnibus pre-trial motion on Jan. 4, 2010, which raised Kennedy’s speedy trial rights under Pennsylvania’s Prompt Trial Rule, Pa. R. Crim. P. 600. The motion requested dismissal of the case.

The defense requested additional discovery to be provided by the Commonwealth at a conference on Jan. 20, 2010. Then on Feb. 4, 2021, Kennedy’s lawyer initiated a plea-bargain request but Kennedy ultimately rejected the offer.

On March 4, 2010, the trial judge in the case recused himself with no explanation. In a motion filed four days later, Kennedy’s attorney requested he be released from custody and argued that his client “had not been afforded his right to a mandatory prompt trial” and that the “commonwealth had not exercised due diligence,” the opinion said.

At a conference before the newly assigned judge on April 1, 2010, the Commonwealth was granted a postponement due to unavailability of the assistant district attorney. Kennedy, an active-duty marine at the time of his arrest, was released from custody and transferred to his Marine Corps unit.

After rejecting a second plea offer from the Commonwealth, Kennedy’s trial date was scheduled for June 20, 2011. But again, the trial date was continued when his co-defendant asked to substitute new counsel.

“After a flurry of further continuances, attributable entirely to court congestion, a March 11, 2013 trial was aborted when the Commonwealth failed to secure the attendance of a prosecution witness in state custody,” said Stearns. “A subsequent June 3, 2013 trial date was continued for the same reason. Finally, on October 15, 2013, 1,520 days after Kennedy’s arrest, his trial began. It did not go well for Kennedy. He was convicted by the jury of aggravated robbery, burglary, aggravated assault, criminal conspiracy, unlawful restraint, false imprisonment, and various firearms offenses. Kennedy’s lawyer failed to perfect a direct appeal of the convictions.”

Stearns stated that it has been a long-standing rule that a federal court will not consider a federal-law challenge to a state court decision that was not “addressed by or properly presented to the state court that rendered the decision.” But to satisfy the presentment requirement, Stearns said, “a petitioner need not resort to any ‘particular form of words or phrases’ so long as the state court receives fair and timely notice that a federal claim is being made.”

According to the opinion, the Commonwealth first argued that Kennedy’s appeal was based almost exclusively on the prompt trial guarantee of Pennsylvania’s Rule 600 and that he failed to properly alert the state courts to his Sixth Amendment claim. The district court, by adopting the magistrate judge’s report and recommendation, “agreed that Kennedy had failed to exhaust his federal constitutional claim by limiting his state court postconviction proceedings to a challenge of his trial counsel’s alleged ineffectiveness ‘for failing to raise a violation of Rule 600, the Pennsylvania speedy-trial rule.’”

“The Commonwealth has since reconsidered,” stated Stearns. “It now concedes that Kennedy’s Sixth Amendment claim has in fact been exhausted.”

“As we believe the Commonwealth’s concession to be a product of careful consideration, we accept it as a waiver made expressly through counsel,” stated Stearns.

The Third Circuit applied a four-factor test to assess the speedy trial violation claim including: “‘length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’”

In Barker v. Wingo, the U.S. Supreme Court cited another decisions, Klopfer v. North Carolina, and stated, “the right to a speedy trial is ‘fundamental’ and imposed by the Due Process Clause of the Fourteenth Amendment on the States.”

In weighing the first factor—length of delay—Stearns found “no difficulty” concluding that 1,520 days from arrest to commencement of jury selection “was sufficiently long to trigger a Barker analysis.” Stearns held that if this threshold is met, and the defendant proves that the delay was due to “negligence over a sufficiently long period,” then the burden shifts to the Commonwealth to justify the delay, the opinion said.

The second factor—the reason for the delay—”determines whether the government or the criminal defendant is more to blame for that delay.” Kennedy argued that the only delay attributable to him is his unsuccessful attempt to negotiate a plea bargain and his agreement to grant a continuance to his co-defendant to secure new counsel. According to the opinion, the Commonwealth accepted responsibility for 40 months of the delay which it attributed to court congestion.

“We have done our own review of the docket, and we agree largely with the parties’ forty-month/ten-month apportionment of the delay between the Commonwealth and Kennedy,” stated Stearns. “We also agree with the Commonwealth that the bulk of the delay falls within Barker’s second, more neutral category of delay caused by negligence and court congestion.”

Stearns concluded that the second factor, too, weighs in Kennedy’s favor.

As to the third factor—the degree to which a defendant asserted his right to a speedy trial—Stearns found in favor of the Commonwealth. Kennedy asserted his right to a speedy trial twice: once in a pre-trial motion four months after his arrest, and a second time when he moved to be released from pre-trial detention six months after his arrest, according to the opinion.

“During the nearly forty-four months that followed, Kennedy did not again invoke his right to a speedy trial, suggesting that his appetite for proceeding to trial had been dulled by his release from detention,” stated Stearns.

The fourth factor—prejudice to the defendant—is the most important factor, according to the opinion. The U.S. Supreme Court has identified three types of harm which accrue from unreasonable delay: “(1) ‘oppressive pretrial incarceration,’ (2) ‘anxiety and concern of the accused,’ and (3) ‘the possibility that the defense will be impaired by dimming memories and loss of exculpatory evidence.’”

“On balance, we find that the fourth Barker factor weighs against the Commonwealth,” Stearns wrote about the present case. “In sum, the first Barker factor weighs heavily against the Commonwealth, as a fifty-month delay is exceptional. The second factor weighs against the Commonwealth as well, though not as heavily as the first, as not all the delay is attributable to the Commonwealth’s negligence. The third factor weighs in favor of the Commonwealth, because while Kennedy invoked his speedy trial rights twice early in the case, he did not renew the invocation after he was released from detention. Finally, the fourth factor weighs against the Commonwealth, as it has not overcome the presumptive prejudice of a four-year delay, despite the strength of its case at trial.

“And here, Kennedy has pointed to prejudice above and beyond presumptive prejudice—including prejudice stemming from loss of employment, anxiety, and incarceration,” Stearns continued. “That evidence, when weighed alongside presumptive prejudice, tips this factor in Kennedy’s favor.”

Krause and Phipps joined Stearns in concluding Kennedy’s procedural default was excused, granted his petition, and ordered his release.

Andrews, the assistant district attorney assigned to the case, could not be immediately reached for comment.