author: Justice Stevens Chief Justice Burger,

text:
    No. 81-855.
    Anderson, Warden v. Fuller.
   C. A. 6th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.

Opinion of

Justice Stevens

respecting the denial of the petition for writ of certiorari.

Although I believe that Jackson v. Virginia, 443 U. S. 307, was decided incorrectly, it is not at all clear to me that the Court of Appeals in this case misapplied the dicta in the Court’s opinion in Jackson. The Court of Appeals did not purport to resolve any conflict in the evidence. Quite properly it attached no weight to the fact that the defendant did not testify, or to the fact that his mother may have testified falsely in support of an alibi defense. Neither of those facts is affirmative evidence of guilt.

Based on their duty to “review the evidence in the light most favorable to the prosecution,” 662 F. 2d 420, 423 (CA6 1981), a majority of the judges of the Court of Appeals concluded — as had the District Court and two of five justices of the Michigan Supreme Court — that there was insufficient evidence in the record that the respondent had intended to commit a crime. It is quite misleading to describe the slim record in this case as “a classic case of conflicting evidence,” post, at 1031, or to imply that these conscientious federal judges chose “to sit as a jury and set aside the lawful jury’s findings of fact.” Post, at 1033. What the Court of Appeals did conclude was that evidence that the respondent, like several other boys, was present at the scene of the crime was legally insufficient to permit any rational trier of fact to find beyond a reasonable doubt that respondent was a participant in that crime. See 662 F. 2d, at 423. The essence of the Court of Appeals decision is explained in the following few paragraphs:

“The district court correctly concluded that the evidence introduced at petitioner’s trial only showed that on the morning of May 18 Fuller was present at the Turner residence along with Zerious Meadows and the other boys. The evidence showed that Fuller looked around while Meadows started the fires. But as Judge Feikens pointed out:
“‘This suggests, as Jefferey Coleman surmised, that the petitioner may have been acting as a lookout for Meadows. It is reasonable speculation. But could a rational jury find it to be proof beyond a reasonable doubt? No evidence was presented that the petitioner intended to burn the Turner home. The evidence that he knew that Zerious Meadows planned to do [sic] is simply too meager to support conviction.’ (emphasis in original)
“We note that there was no evidence at trial that the ‘Molotov cocktail’ which started the fire was prepared in advance, or, if it was, whether any of the boys other than Zerious Meadows knew that the ‘Molotov cocktail’ existed. There was of course no evidence that any of the boys, except Fuller [sic], participated in the manufacture of the ‘Molotov cocktail’.
“Moreover, there was no direct evidence that the youths approached the Turner house with intent to set the house on fire. Assuming Zerious Meadows had this intent, however, there was no evidence that it was shared by petitioner or the other boys.
“The only direct evidence supporting the State’s contention that Fuller ‘stood guard and acted as a lookout’ for Zerious Meadows was Jefferey Coleman’s testimony that over a period of several minutes Fuller turned his head from side to side ‘more than twice.’ We agree with the district court that this is insufficient to establish beyond a reasonable doubt that Fuller took conscious action to aid Meadows’ commission of arson.” Id., at 424.

In my judgment it would not be an appropriate use of this Court’s scarce resources to grant certiorari and review every record in which a federal court makes a conscientious effort to apply the dictates of Jackson v. Virginia. For that reason, without reaching the question whether I would have decided this case the same way the Court of Appeals did had I been a member of that court, I think this Court wisely denies certiorari.

Chief Justice Burger,

with whom Justice O’Connor joins,

dissenting.

Respondent Fuller was convicted of felony murder in 1970, following a fire in which two children died. The fire occurred on the morning of May 18, 1970. The prosecution’s evidence showed that Fuller served as a lookout while Meadows set the fire. Fuller was 17 years old at the time. A neighbor testified that she saw Fuller, along with a few other boys, standing in front of the Turner house on the morning of the fire. A 14-year-old, Coleman, testified that he saw Fuller and Meadows behind the house. Meadows was on the back porch. As Coleman watched, for 5 or 10 minutes, Meadows stuffed a rag inside a bottle, ignited the rag, and threw the bottle against the house, starting a fire. Meadows then set another fire. Fuller, meanwhile, stood by a gate leading from the backyard to an alley. Coleman testified that Fuller looked up and down the alley while Meadows was setting the fires. Fuller and Meadows then left the yard through the gate and ran down the alley together. Coleman went to the house of a friend, Martin, and reported that the Turner house was on fire.

The defense moved for a directed verdict of acquittal at the close of the State’s evidence. The trial judge ruled that the evidence against Fuller established a prima facie case and denied the motion.

The defense put on one witness, Fuller’s mother. She testified that Fuller was at home asleep until 9 o’clock on the morning of the fire; therefore, he could not have been involved in setting the fires. The defense case was based solely on this alibi and an attempt to discredit Coleman’s testimony. Defense counsel told the jury that the only real issue in the case was whether Fuller or someone else was standing behind the Turner house.

There was no challenge to the trial judge’s instructions on reasonable doubt and the presumption of innocence. This, then, was a classic case of conflicting evidence in which the jury had to pass on the credibility of the witnesses. The jury returned a verdict of guilty. The verdict shows the jury did not believe Fuller’s mother and accept his alibi defense. The jury obviously accepted as true the testimony of Coleman and the testimony of two other witnesses who said that they saw Fuller at the scene on the morning of the fire. The trial judge denied a motion for a new trial, and Fuller received a mandatory life sentence as an accessory to murder by arson. Meadows was convicted of first-degree murder in a separate trial.

Fuller appealed directly to the Michigan Court of Appeals, which unanimously affirmed the conviction. People v. Fuller, 44 Mich. App. 297, 205 N. W. 2d 287 (1973). It held that the evidence was sufficient to convict Fuller because, if the jury believed Coleman, it could reasonably conclude that Fuller acted as a lookout for Meadows. A divided Michigan Supreme Court affirmed. 395 Mich. 451, 236 N. W. 2d 58 (1975). It also noted that evidence was presented, which, if believed by the jury, showed that Fuller acted as a lookout.

In another in a series of cases in which federal courts retry-issues of fact and credibility, the District Court for the Eastern District of Michigan granted Fuller’s application for a writ of habeas corpus under 28 U. S. C. § 2254. The court purported to apply Jackson v. Virginia, 443 U. S. 307 (1979). It noted that Jackson held that habeas relief could only be granted if “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Id., at 324. The District Court then reviewed and reweighed the evidence presented at trial and concluded that the evidence which persuaded 12 jurors, who heard all the evidence and observed the demeanor of all the witnesses, was too meager to support the prosecution’s contention that Fuller acted as a lookout. The District Court relied heavily on the fact that no evidence was presented to show Fuller knew that Meadows planned to bum the Turner home; Fuller, of course, did not take the stand.

A divided Court of Appeals for the Sixth Circuit affirmed. 662 F. 2d 420 (1981). That court again reweighed the evidence which 12 jurors found sufficient under instructions not questioned. Like the District Court, two of the members of the panel concluded that there was insufficient evidence presented to establish that Fuller knew Meadows intended to commit arson.

Dissenting, Judge Weick cogently contended that the federal courts were improperly usurping the function of the state-court jury. If the jury which saw and heard the witnesses chose to believe Coleman’s testimony, it was reasonable to infer that Fuller acted as a lookout for Meadows. The jury clearly chose to believe Coleman, just as it chose to disbelieve Fuller’s alibi.

The District Court and the Court of Appeals incorrectly applied Jackson. There we held that “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U. S., at 319. It is sheer nonsense to suggest that, on this record, the 12 jurors acted irrationally. With all respect, I suggest that the District Court and the Court of Appeals’ majority forgot that it is the function of the jury to determine who is telling the truth. Judges betray their function when they arrogate themselves over the legal factfinder. Either we accept the jury system with the risk of human fallibility or we ought to change the structure of the system and redefine the standard of review under the habeas corpus statutes. The District Court and the Court of Appeals did not view the evidence in the light most favorable to the prosecution, as the law and their oaths require. If they had, they could not have rationally concluded that the jury could not reasonably reach the result it reached. Instead, the courts reweighed Coleman’s testimony, noting that he was young, that he had been placed in a youth house because he ran away from home, and that he attended a “special school.” Put simply — and bluntly, as this case demands— the federal judges who set aside this state-court judgment acted like jurors, not jurists.

This Court cannot sit as a court of errors to correct every mistake by other courts. But the decision here warrants consideration by this Court because the courts have misapplied Jackson in a way that threatens to lead to reversals of state-court criminal convictions whenever a federal court chooses to sit as a jury and set aside the lawful jury’s findings of fact. There was a flagrant refusal here to review the evidence in the light most favorable to the prosecution, as the law commands. Jackson did not authorize such gross interference with the functioning of state criminal justice systems.

I would grant certiorari and reverse the decision below, with appropriate reminders to my colleagues as to certain fundamental propositions concerning their role. Our heavy docket is an insufficient reason to allow this erroneous judgment to stand.


source: Caselaw Access Project

license: Public Domain

text:
    No. 81-871.
    No. 81-1019.
    American Petroleum Institute et al. v. Gorsuch, Administrator, Environmental Protection Agency, et al.; and City of Houston, Texas v. Gorsuch, Administrator, Environmental Protection Agency, et al.
   C. A. D. C. Cir. Certiorari denied.

Justice White, Justice Powell, and Justice O’Connor took no part in the consideration or decision of these petitions.

Reported below: 214 U. S. App. D. C. 358, 665 F. 2d 1176.


text:
    No. 81-959.
    Saxton, mother and natural guardian of Dennis et al. v. Dennis.
   Sup. Ct. Minn. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 81-1152.
    Standard Oil Company of California v. Wiltshire.
   C. A. 9th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.

Justice O’Connor took no part in the consideration or decision of this motion and this petition.


text:
    No. 81-1341.
    Del Rio Land, Inc., et al. v. City of Phoenix et al.
   Ct. App. Ariz. Certiorari denied.

Justice O’Connor took no part in the consideration or decision of this petition.


text:
    No. 81-1371.
    No. 81-1373.
    Hoopa Valley Tribe of Indians v. Short et al.; and United States v. Short et al.
   Ct. Cl. Motion of Quinault Indian Nation for leave to file a brief as amicus curias in No. 81-1371 granted. Motion of National Congress of American Indians et al. for leave to file a brief as amici curiae granted. Certiorari denied. Reported below: 228 Ct. Cl. 535, 661 F. 2d 150.


text:
    No. 81-1406.
    Greene v. Grievance Committee for the Ninth Judicial District.
   Ct. App. N. Y. Certio-rari denied.

Justice Brennan, Justice White, Justice Blackmun, and Justice Powell would grant certiorari, vacate the judgment, and remand the case for further consideration in light of In re R. M. J., ante, p. 191.


text:
    No. 81-1421.
    Sedelbauer v. Indiana.
   Sup. Ct. Ind. Certiorari denied.

Justice Brennan and Justice Marshall would grant the petition for certiorari and reverse the conviction.


author: Justice Brennan, Justice Marshall,

text:
    No. 81-5908.
    Zeigler v. Florida.
   Sup. Ct. Fla. Cer-tiorari denied.

Justice Brennan,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant certiorari and vacate the death sentence in this case.

Justice Marshall,

dissenting.

Petitioner seeks review of the State Supreme Court’s decision upholding his murder conviction and death sentence. He argues that his conviction and death sentence should be set aside because they were based in part on evidence obtained in flagrant violation of his Fourth Amendment rights. He objects to the State Supreme Court’s holding that, by calling the Chief of Police for assistance, he consented to a broad-ranging 12-day search of his furniture store. Because I believe that this petition raises serious Fourth Amendment claims and offers an opportunity for this Court to clarify the standards for consent to search under Schneckloth v. Bustamonte, 412 U. S. 218 (1973), I dissent from the denial of certiorari.

On December 24, 1975, four persons were killed at a furniture store owned by petitioner. Petitioner’s wife, her parents, and another person had been shot to death, and petitioner had been shot in the abdomen and was seriously wounded. That night, shortly after the shootings, petitioner called the local Police Chief, a personal friend of petitioner, and requested immediate assistance. The Police Chief testified: “He told me that he had been shot. I said, what happened. He said please come help me, hurry.” In response to this call, the police entered the store, found petitioner, who was bleeding badly, and rushed him to the hospital. The police found four bodies, searched for the killer, and secured the building.

Later that night, a local detective arrived to direct the investigation. The store was searched again that night and repeatedly over the next 12 days. No effort was made to obtain a warrant until January 6, 1976. On December 26, police made a warrantless entry into petitioner’s office, which was separated from the area where the victims were found, breaking two locks in the process. They went through petitioner’s personal papers, checkbooks, and corporate records, and seized several documents. In searching through one of petitioner’s desks, police found an insurance policy that petitioner had taken out on his wife’s life. A second policy was seized in a search the next day. The two policies were introduced at trial to support the State’s theory that petitioner had a pecuniary motive for killing his wife. On January 2, police searched the store yet again. They entered a backroom separated from the area in which the victims had been found, searched the inside of a closed storage cabinet, and seized a large amount of damaging evidence that was introduced at trial.

The detective testified that in conducting these warrant-less searches, he relied on a so-called crime scene exception to the warrant requirement. He specifically stated that he did not have petitioner’s consent to all of the searches. The trial court upheld the searches under this crime scene rationale. Although the State Supreme Court recognized that a crime scene exception is inconsistent with Mincey v. Arizona, 437 U. S. 385 (1978), it nevertheless upheld the searches, reasoning that the police were at the store at the “invitation” of petitioner. 402 So. 2d 365, 372 (Fla. 1981).

The decision below stretches the consent exception to the warrant requirement beyond recognition. Particularly when the defendant’s life hangs in the balance, courts should be careful that convictions are not based on illegally obtained evidence. Here, the conclusion that a seriously wounded defendant who requests police aid thereby consents to an unlimited 12-day search of his business premises ignores the relevant context of the consent — the need for immediate medical assistance — and amounts to a rule that a cry for help waives all Fourth Amendment protection. I would set the case for plenary argument.

       Petitioner also objects that his alleged consent to a search of his home was not voluntary. The morning after the crimes, police asked to see petitioner in the hospital, but were refused admission because of his physical and emotional condition. Petitioner had come out of surgery only six hours earlier, was under the influence of anesthesia, arid had recently been given morphine for pain. The officers drafted a consent form and asked two nurses to obtain petitioner’s signature. The nurses awoke petitioner and told him that the police would like to search his home and would like him to sign the form, which they read to him. Although the nurses testified that he was coherent when he signed the form, petitioner stated that he had no recollection of signing.
      As a result of this purported consent, the police searched petitioner’s home and seized numerous items of evidence that were introduced at trial. These circumstances — the extraction of consent from a recuperating and drugged patient in a hospital bed — demand the most careful scrutiny before the consent may be deemed voluntary. If the petition for certiorari were granted, I would address this issue as well.

       Because I continue to believe that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth Amendment, I would also grant the petition for certiorari in this case and vacate the judgment below insofar as it leaves undisturbed the death sentence.

       The State contends that petitioner shot himself and called the police as part of a deliberate scheme to pin the blame on another. This contention is irrelevant to the scope of petitioner’s consent. Whether or not the call for help was self-serving, the question remains whether it can reasonably be construed as a consent to a search unlimited in time and location.


author: Justice Brennan and Justice Marshall,

text:
    No. 81-6082.
    No. 81-6131.
    No. 81-6143.
    No. 81-6151.
    Ruffin v. Austin, Warden, Georgia State Prison. Evans v. Virginia. Rook v. North Carolina. Cunningham v. Georgia.
   Super. Ct. Ga., Tatnall County;

Sup. Ct. Va.;

Sup. Ct. N. C.; and

Sup. Ct. Ga. Certiorari denied. Reported below: No. 81-6131, 222 Va. 766, 284 S. E. 2d 816; No. 81-6143, 304 N. C. 201, 283 S. E. 2d 732; No. 81-6151, 248 Ga. 558, 284 S. E. 2d 390.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 80-6843.
    No. 81-23.
    No. 81-1013.
    No. 81-1078.
    No. 81-5566.
    No. 81-5801.
    No. 81-5831.
    No. 81-5841.
    High v. Georgia, Hutto, Director, Virginia State Department of Corrections, et al. v. Davis, Johnson v. Superior Court of California, City and County of San Francisco (Bank of America et al., Real Parties in Interest), Geller v. Merit Systems Protection Board et al., Denardo v. Murphy, Wallace v. Georgia, Leuschner v. Maryland, Sabir v. Rainier National Bank,
   ante, p. 927;

454 U. S. 370;

ante, p. 921;

ante, p. 901;

454 U. S. 1096;

ante, p. 927;

ante, p. 951; and

454 U. S. 1157. Petitions for rehearing denied.


text:
    No. 81-5621.
    Johnson v. Aetna Casualty & Surety Company of Hartford, Connecticut, et al.,
   454 U. S. 1118. Petition for rehearing denied.

Justice O’Connor took no part in the consideration or decision of this petition.


text:
    March 23, 1982
    No. 81-1724.
    Upham et al. v. Seamon et al.
   D. C. E. D. Tex. Motion of appellants to expedite is granted insofar as the appellees are directed to file motions to dismiss or affirm on or before Monday, March 29, 1982.


author: Justice Rehnquist, Circuit Justice.

text:
    REPUBLICAN NATIONAL COMMITTEE et al. v. BURTON et al.
    No. A-768 (81-1641).
    Decided March 11, 1982
   Justice Rehnquist, Circuit Justice.

Applicants ask that I stay, pending their appeal therefrom, the judgment of the Supreme Court of California entered on January 28, 1982, in mandate proceeding S. F. No. 24354. That proceeding concerns certain redistricting statutes enacted by the California Legislature in response to the 1980 decennial census which allotted California two additional congressional seats, the effect upon such statutes of a petition calling for their review in a statewide referendum, and the congressional districts to be used by the State in the interim. The California Supreme Court held that the referendum petition effectively suspended the operation of the redistricting statutes, but that the June 8,1982, primary election nonetheless should be conducted in accordance with the district boundaries set forth in those statutes. Assembly of State of California v. Deukmejian, 30 Cal. 3d 638, 639 P. 2d 939 (1982).

Applicants argue that the June election should be conducted according to district boundaries in effect prior to the 1980 census, with the two new seats to be filled by at-large elections. They contend that the California Supreme Court erred when it held that 2 U. S. C. § 2c, which requires that each Representative be elected from a separate district, superseded 2 U. S. C. § 2a(c)(2), which requires that newly allotted seats be filled by at-large elections if the State has not completed redistricting. Applicants assert that this holding merits review by this Court, and they present such arguments in a jurisdictional statement filed simultaneously with this application.

Even if the applicants are correct in their contention that the California Supreme Court wrongly interpreted the effect of § 2c — a question on which I express no opinion — I think it is highly unlikely that this Court will give plenary consideration to their appeal. In addition to construing provisions of the United States Code, the decision of the California Supreme Court recites several state-law reasons for its holding that the boundaries of the new redistricting scheme should be followed in the June election. Thus, the judgment appears to be based on adequate and independent state grounds. Of course, this Court has no jurisdiction to review decisions based on adequate, nonfederal grounds. Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 568 (1977); Cramp v. Board of Public Instruction, 368 U. S. 278, 281 (1961). Accordingly, the application for a stay of the judgment is denied, and the application for expedited oral argument is referred to the full Court.

      It does not appear that a contrary holding on the federal statutory question would alter the validity of the state grounds, for 2 U. S. C. § 2a(c)(2) by its terms applies only “[u]ntil a State is redistricted in the manner provided by the law thereof.” (Emphasis added.)


author: Justice Brennan, Circuit Justice.

text:
    KARCHER, SPEAKER, NEW JERSEY ASSEMBLY, et al. v. DAGGETT et al.
    No. A-783 (81-2057).
    Decided March 15, 1982
   Justice Brennan, Circuit Justice.

Applicants, the Speaker of the New Jersey Assembly, the President of the New Jersey Senate, and eight Members of the United States House of Representatives from New Jersey, have applied to me for a stay pending this Court’s review on appeal of the judgment of a three-judge District Court for the District of New Jersey entered March 3, 1982. Daggett v. Kimmelman, 535 F. Supp. 978. The judgment declared unconstitutional 1982 N. J. Laws, ch. 1, which creates districts for the election of the United States Representatives from New Jersey, and enjoined the defendant state officers from conducting primary or general congressional elections under the terms of that statute.

On the basis of the 1980 decennial census, the number of United States Representatives to which New Jersey is entitled has been decreased from 15 to 14. Consequently the New Jersey Legislature was required to apportion 14 congressional districts. Chapter 1 is the product of the state legislature’s effort to meet that requirement. The District Court found that in drafting ch. 1 the legislature was concerned not only with drawing districts of equal population as an “aspirational” goal but also with recognizing such factors as the preservation of the cores of pre-existing districts, the preservation of municipal boundary lines, and the preservation of the districts of incumbent Democratic Congressmen. Chapter 1 creates 14 congressional districts with an overall absolute range of deviation of 3,674 people and an overall relative range of deviation of 0.6984% from the “ideal” map of 14 districts of 526,059 persons each. There were, however, several other proposals brought before the legislature that yielded total deviations of less than 0.6984%. The opinion for the majority of the District Court says of these:

“For example, the Roeck plan contained a total deviation of .3250%, and only .2960% after it was amended. The DiFrancesco plan . . . had a total deviation of .1253%. The Hardwick plan . . . contained a total deviation of .4515%. The Bennett plan . . . and the Kavanaugh plan . . . contain total deviations of .1369% and .0293%, respectively.” 535 F. Supp., at 982.

. All three judges of the District Court agreed that the constitutionality of 1982 N. J. Laws, ch. 1, was to be determined under the standard announced in Kirkpatrick v. Preisler, 394 U. S. 526 (1969), and its progeny, e. g., White v. Weiser, 412 U. S. 783 (1973). But the judges divided 2 to 1 on what that standard is. The majority read Kirkpatrick as holding that, even if 0.6984% was to be regarded as a de minimis variance,

“P. L. 1982, c. 1 can withstand constitutional attack only if the population variances ‘are unavoidable despite a good-faith effort to achieve absolute equality . . . .’ Kirkpatrick, 394 U. S. at 531 .... It is clear that the .6984% population deviation of P. L. 1982, c. 1 is not unavoidable. The legislature had the option of choosing from several other plans with a lower total deviation than .6984%.” 535 F. Supp., at 982.

The dissenting judge, on the other hand, read Kirkpatrick to suggest:

“[Variances may be justified which do not achieve statistically significant dilutions of the relative representation of voters in larger districts when compared with that of voters in smaller districts. . . . [Kirkpatrick is to be read to announce] a prohibition against toleration of de minimis dilutions of relative representation rather than as a prohibition against toleration of dc minimis population variances which have no statistically relevant effect on relative representation. A plus-minus deviation of 0.6984% falls within the latter category.” 535 F. Supp., at 982.

The appeal would thus appear to present the important question whether Kirkpatrick v. Preisler requires adoption of the plan that achieves the most precise mathematical exactitude, or whether Kirkpatrick left some latitude for the New Jersey Legislature to recognize the considerations taken into account by it as a basis for choosing among several plans, each with arguably “statistically insignificant” variances from the constitutional ideal of absolute precision.

The principles that control my determination as Circuit Justice of this in-chambers application were stated in Rostker v. Goldberg, 448 U. S. 1306 (1980) (BRENNAN, J., in chambers):

“Relief from a single Justice is appropriate only in those extraordinary cases where the applicant is able to rebut the presumption that the decisions below — both on the merits and on the proper interim disposition of the case — are correct. In a case like the present one, this can be accomplished only if a four-part showing is made. First, it must be established that there is a ‘reasonable probability* that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction. Second, the applicant must persuade [the Circuit Justice] that there is a fair prospect that a majority of the Court will conclude that the decision below was erroneous. While related to the first inquiry, this question may involve somewhat different considerations, especially in cases presented on direct appeal. Third, there must be a demonstration that irreparable harm is likely to result from the denial of a stay. And fourth, in a close case it may be appropriate to ‘balance the equities’ — to explore the relative harms to applicant and respondent, as well as the interests of the public at large.” Id., at 1308 (citations omitted).

The importance of a definitive answer from this Court as to the proper interpretation of the Kirkpatrick standard is self-evident: Doubtless all 50 States would be assisted by that answer in any review of the apportionment of congressional seats in consequence of the 1980 census. My task is not to adjudicate this application on my own view of the merits of that question, but rather to determine whether there is a “reasonable probability” that four Justices will consider the issue sufficiently 'meritorious to note probable jurisdiction of this appeal, and, if so, whether there is a fair prospect that a majority of the Court will conclude that the decision below was erroneous. Neither event can be predicted with anything approaching certainty, but nonetheless it does seem to me that there is a reasonable probability that jurisdiction of the appeal will be noted, and that there is a fair prospect of reversal.

As to the third Rostker requirement, I conclude that applicants would plainly suffer irreparable harm were the stay not granted. Under the District Court order the legislature must either adopt an alternative redistricting plan before March 22 next or face the prospect that the District Court will implement its own redistricting plan. With respect to the balance of the equities, this Court has repeatedly emphasized that legislative apportionment plans created by the legislature are to be preferred to judicially constructed plans.

Accordingly, I am today entering an order granting the application for a stay pending the filing of a jurisdictional statement and, if probable jurisdiction is noted, final disposition of the appeal.


author:
Chief Justice Burger Justice Stevens,
      Justice Marshall,

text:
    UNITED STATES v. MacDONALD
    No. 80-1582.
    Argued December 7, 1981
    Decided March 31, 1982

      Burger, C. J., delivered the opinion of the Court, in which White, Powell, Rehnquist, and O’Connor, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, post, p. 11. Marshall, J., filed a dissenting opinion, in which Brennan and Blackmun, JJ., joined, post, p. 12.

      Alan I. Horowitz argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey, John Fichter DePue, and Brian M. Murtagh.

      Ralph S. Spritzer argued the cause for respondent. With him on the brief were Bernard L. Segal and Michael J. Malley.

   Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to decide whether the time between dismissal of military charges and a subsequent indictment on civilian criminal charges should be considered in determining whether the delay in bringing respondent to trial for the murder of his wife and two children violated his rights under the Speedy Trial Clause of the Sixth Amendment.

HH

The facts in this case are not in issue; a jury heard and saw all the witnesses and saw the tangible evidence. The only point raised here by petitioner involves a legal issue under the Speedy Trial Clause of the Sixth Amendment. Accordingly, only a brief summary of the facts is called for. In the early morning of February 17, 1970, respondent’s pregnant wife and his two daughters, aged 2 and 5, were brutally murdered in their home on the Fort Bragg, N. C., military reservation. At the time, MacDonald, a physician, was a captain in the Army Medical Corps stationed at Fort Bragg. When the military police arrived at the scene following a call from MacDonald, they found the three victims dead and MacDonald unconscious from multiple stab wounds, most of them superficial, but one a life-threatening chest wound which caused a lung to collapse.

At the time and in subsequent interviews, MacDonald told of a bizarre and ritualistic murder. He stated that he was asleep on the couch when he was awakened by his wife’s screams. He said he saw a woman with blond hair wearing a floppy hat, white boots, and a short skirt carrying a lighted candle and chanting “acid is groovy; kill the pigs.” He claimed that three men standing near the couch attacked him, tearing his pajama top, stabbing him, and clubbing him into unconsciousness. When he awoke, he found his wife and two daughters dead. After trying to revive them and covering his wife’s body with his pajama top, MacDonald called the military police. He lost consciousness again before the police arrived.

Physical evidence at the scene contradicted MacDonald’s account and gave rise to the suspicion that MacDonald himself may have committed the crime. On April 6, 1970, the Army Criminal Investigation Division (CID) advised MacDonald that he was a suspect in the case and confined him to quarters. The Army formally charged MacDonald with the three murders on May 1, 1970. In accordance with Article 32 of the Uniform Code of Military Justice, 10 U. S. C. § 832, the Commanding General of MacDonald’s unit appointed an officer to investigate the charges. After hearing a total of 56 witnesses, the investigating officer submitted a report recommending that the charges and specifications against MacDonald be dismissed. The Commanding General dismissed the military charges on October 23, 1970. On December 5, 1970, the Army granted MacDonald’s request for an honorable discharge based on hardship.

At the request of the Justice Department, however, the CID continued its investigation. In June 1972, the CID forwarded a 13-volume report to the Justice Department recommending further investigation. Additional reports were submitted during November 1972 and August 1973. Following evaluation of those reports, in August 1974, the Justice Department presented the matter to a grand jury. On January 24, 1975, the grand jury returned an indictment charging MacDonald with the three murders.

Prior to his trial in Federal District Court, MacDonald moved to dismiss the indictment, in part on the grounds that the delay in bringing him to trial violated his Sixth Amendment right to a speedy trial. The District Court denied the motion, but the Court of Appeals allowed an interlocutory appeal and reversed, holding that the delay between the June 1972 submission of the CID report to the Justice Department and the August 1974 convening of the grand jury violated MacDonald’s constitutional right to a speedy trial. MacDonald v. United States, 531 F. 2d 196 (CA4 1976). We granted certiorari and reversed, holding that a criminal defendant could not appeal the denial of a motion to dismiss on Speedy Trial Clause grounds until after the trial had been completed. United States v. MacDonald, 435 U. S. 850 (1978).

MacDonald was then tried and convicted on two counts of second-degree murder and one count of first-degree murder. He was sentenced to three consecutive terms of life imprisonment. On appeal, a divided panel of the Fourth Circuit again held that the indictment violated MacDonald’s Sixth Amendment right to a speedy trial and dismissed the indictment. 632 F. 2d 258 (1980). The court denied rehearing en banc by an evenly divided vote. 635 F. 2d 1115 (1980).

We granted certiorari, 451 U. S. 1016 (1981), and we reverse.

II

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . .” A literal reading of the Amendment suggests that this right attaches only when a formal criminal charge is instituted and a criminal prosecution begins.

In United States v. Marion, 404 U. S. 307, 313 (1971), we held that the Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused:

“On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him.”

In addition to the period after indictment, the period between arrest and indictment must be considered in evaluating a Speedy Trial Clause claim. Dillingham v. United States, 423 U. S. 64 (1975). Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U. S. 783, 788-789 (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending.

Similarly, the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.

The Court identified the interests served by the Speedy Trial Clause in United States v. Marion, supra, at 320:

“Inordinate delay between arrest, indictment, and trial may impair a defendant’s ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.”

See also Barker v. Wingo, 407 U. S. 514, 532-533 (1972).

The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.

Once charges are dismissed, the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. This is true whether or not charges have been filed and then dismissed. This was true in Marion, where the defendants had been subjected to a lengthy investigation which received considerable press attention. But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, “a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer.” United States v. Marion, 404 U. S., at 321. Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation.

I — I I — I

The Court of Appeals held, in essence, that criminal charges were pending against MacDonald during the entire period between his military arrest and his later indictment on civilian charges. We disagree. In this case, the homicide charges initiated by the Army were terminated less than a year after the crimes were committed; after that, there was no criminal prosecution pending on which MacDonald could have been tried until the grand jury, in January 1975, returned the indictment on which he was tried and convicted. During the intervening period, MacDonald was not under arrest, not in custody, and not subject to any “criminal prosecution.” Inevitably, there were undesirable consequences flowing from the initial accusation by the Army and the continuing investigation after the Army charges were dismissed. Indeed, even had there been no charges lodged by the Army, the ongoing comprehensive investigation would have subjected MacDonald to stress and other adverse consequences. However, once the charges instituted by the Army were dismissed, MacDonald was legally and constitutionally in the same posture as though no charges had been made. He was free to go about his affairs, to practice his profession, and to continue with his life.

The Court of Appeals acknowledged, and MacDonald concedes, that the delay between the civilian indictment and trial was caused primarily by MacDonald’s own legal manue-vers and, in any event, was not sufficient to violate the Speedy Trial Clause. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

Justice Stevens,

concurring in the judgment.

For the reasons stated by Justice Marshall in Part II of his opinion, I also conclude that MacDonald’s constitutional right to a speedy trial was not suspended during the period between the Army’s dismissal of its charges in 1970 and the return of the civilian indictment in 1975. Justice Marshall also is clearly correct in stating that the question whether the delay was constitutionally unacceptable is “close.” Post, at 21. Since his opinion fairly identifies the countervailing factors, I need only state that the interest in allowing the Government to proceed cautiously and deliberately before making a final decision to prosecute for such a serious offense is of decisive importance for me in this case. I therefore concur in the Court’s judgment.

Justice Marshall,

with whom Justice Brennan and Justice Blackmun join, dissenting.

On February 17, 1970, in the early morning, Dr. Jeffrey R. MacDonald called military police and requested help. When police arrived at the family quarters, they found him unconscious and suffering from multiple stab wounds, including one that threatened his life. His wife and two young children had been murdered. On May 1, 1970, the Army formally charged him with the murders. The Army dropped those charges on October 23, 1970, but reopened the investigation at the request of the Justice Department and handed over a comprehensive report in June 1972. The Justice Department did not convene a grand jury until August 1974, more than two years later. The Court of Appeals charged this delay to Government “indifference, negligence, or ineptitude.” United States v. MacDonald, 531 F. 2d 196, 207 (CA4 1976) (MacDonald I). On January 24, 1975, MacDonald was indicted by a civilian grand jury on three counts of murder, the same charges that the military authorities had dropped. Trial commenced in the summer of 1979.

Confronted with these facts, the majority reaches the facile conclusion that the speedy trial right is not implicated at all when the same sovereign initiates, drops, and then reiniti-ates criminal charges. That conclusion is not justified by the language of the Speedy Trial Clause or the teachings of our cases, and it is hopelessly at odds with any sensible understanding of speedy trial policies. I must dissent.

hH

Because the majority scants the relevant facts in this case, I review them in somewhat more detail. The initial investigation of the murders in this case was conducted by the Army’s Criminal Investigation Division (CID) and the Federal Bureau of Investigation, as well as the local police. On May 1, 1970, the Army formally charged MacDonald with three specifications of murder, in violation of Article 118 of the Uniform Code of Military Justice, 10 U. S. C. § 918. The Army conducted a lengthy hearing during which 56 witnesses testified. MacDonald himself testified and was extensively cross-examined. At the conclusion of the hearing, the investigating officer filed an exhaustive report recommending that the charges against MacDonald be dismissed “because the matters set forth in all charges and specifications are not true.” See MacDonald I, supra, at 200. He also recommended that the civilian authorities investigate Helena Stoeckley, who had told several persons that she was involved in the crime. On October 23, 1970, the Commanding General of MacDonald’s unit accepted the recommendation and dismissed the charges. In December, MacDonald received an honorable discharge.

The prosecution did not, however, terminate on that date. Within a month of MacDonald’s discharge, at the specific request of the Justice Department, the CID continued its investigation. The renewed investigation was extensive and wide-ranging. The CID conducted 699 interviews and, at the request of the Department, sent the weapons and the victims’ clothing to the FBI laboratory in July 1971. In December 1971, the CID completed its investigation, and in June 1972, the CID submitted a 13-volume report to the Justice Department. Although supplemental reports were transmitted in November 1972 and August 1973, the Court of Appeals found that “no significant new investigation was undertaken during this period, and none was pursued from August 1973 until the grand jury was convened a year later.” MacDonald I, supra, at 206. Indeed, the United States Attorney for the Eastern District of North Carolina recommended that the matter be submitted to a grand jury within six months of June 1972, and in 1973, the CID suggested the convening of a grand jury before it conducted further investigation.

MacDonald was fully aware of these investigations. After his honorable discharge, MacDonald moved to California and resumed the practice of medicine. In 1971, the CID again interviewed him. From January 1972 to January 1974, he repeatedly requested the Government to complete its investigation, and offered to submit to further interviews. The Justice Department declined to question him or to advise him when the investigation would terminate. In January 1974, the Department wrote that “this case is under active investigation and will remain under consideration for the foreseeable future.” MacDonald I, supra, at 201, n. 6. There was no further correspondence.

The Government did not present the case to a civilian grand jury until August 1974. MacDonald waived his right to remain silent and testified before the grand jury for a total of more than five days. Numerous other witnesses testified, the bodies of the victims were exhumed, and the FBI re-investigated certain aspects of the crime. An indictment was returned on January 24, 1975. The indictment charged MacDonald with three counts of first-degree murder.

The Government offered no legitimate reason — not even docket congestion — for the delay between the submission of the June 1972 report and the presentation to the grand jury in August 1974. The Court of Appeals explained:

“The leisurely pace from June 1972 until the indictment was returned in January 1975 appears to have been primarily for the government’s convenience. The Assistant United States Attorney for the Eastern District of North Carolina, who is familiar with the case, expressed an even harsher assessment of the delay. He told the magistrate at the bail hearing that the tangible evidence had been known to the government since the initial investigation in 1970 but that it had not been fully analyzed by the F.B.I. until the latter part of 1974. He explained that the F.B.I. analysis was tardy ‘because of government bureaucracy.’” MacDonald I, supra, at 206 (footnotes omitted).

The FBI’s failure to complete its analysis until 1974 is the only Government justification for the delay that the District Court mentioned in its initial decision denying MacDonald’s motion to dismiss on speedy trial grounds. 1 App. for Appellant in No. 79-5253 (CA4), p. 46. In its post-trial decision, the District Court again denied the motion, but stated its belief that “the case could have been put before the grand jury at a much earlier date than it was.” 485 F. Supp. 1087, 1089 (EDNC 1979).

II

The majority’s analysis is simple: the Speedy Trial Clause offers absolutely no protection to a criminal defendant during the period that a charge is not technically pending. But simplicity has its price. The price, in this case, is disrespect for the language of the Clause, important precedents of this Court, and speedy trial policies.

“In all criminal prosecutions,” the Sixth Amendment recites, “the accused shall enjoy the right to a speedy and public trial.” On its face, the Sixth Amendment would seem to apply to one who has been publicly accused, has obtained dismissal of those charges, and has then been charged once again with the same crime by the same sovereign. Nothing in the language suggests that a defendant must be continuously under indictment in order to obtain the benefits of the speedy trial right. Rather, a natural reading of the language is that the Speedy Trial Clause continues to protect one who has been accused of a crime until the government has completed its attempts to try him for that crime.

Our cases, to the extent they address the issue, contradict the majority’s view. In Klopfer v. North Carolina, 386 U. S. 213 (1967), the prosecutor entered a “nolle prosequi with leave” after the first trial ended in a mistrial. Under that procedure, the defendant was discharged from custody and subject to no obligation to report to the court, but the prosecutor could reinstate the indictment at any time upon application to the court. This Court held that the indefinite postponement of the prosecution, over the defendant’s objection, “clearly” denied the defendant the right to a speedy trial. Id., at 222. The Court reasoned that the defendant “may be denied an opportunity to exonerate himself in the discretion of the solicitor and held subject to trial, over his objection, throughout the unlimited period in which the solicitor may restore the case to the calendar. During that period, there is no means by which he can obtain a dismissal or have the case restored to the calendar for trial.” Id., at 216. In that case, of course, the indictment technically had not been dismissed when the defendant was discharged from custody. However, the prosecutor was required to take affirmative steps to reinstate the prosecution; no charges were actively pending against Klopfer. The Court nevertheless held that the speedy trial right applied.

Klopfer teaches that the anxiety suffered by an accused person, even after the initial prosecution has terminated and after he has been discharged from custody, warrants application of the speedy trial protection. The analysis in United States v. Marion, 404 U. S. 307 (1971), relied on by the majority, is entirely consistent with this teaching. The Court in Marion held that the Speedy Trial Clause does not apply to the period before a defendant is first indicted, arrested, or otherwise officially accused. However, the Court hardly suggested that after the first official accusation has been made, the dropping of charges prior to a second official accusation wipes the slate clean.

The Court explained its holding by stating that “the indictment was the first official act designating appellees as accused individuals.” Id., at 324 (emphasis added). Sixth Amendment provisions “would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time.” Id., at 313 (emphasis added). Prior to the time of arrest or indictment, an accused may suffer anxiety, but he does not suffer the special form of anxiety engendered by public accusation. “Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” Id., at 320. The Court did not address the question whether, after a public accusation has been made but charges have technically been dropped, the defendant is in precisely the same constitutional situation as if no accusation had ever been made.

Marion also adverts to a serious procedural impediment to extending the speedy trial right prior to a first arrest or indictment: inquiry into when the police could have made an arrest or when the prosecutor could have brought charges would raise difficult problems of proof. Id., at 321, n. 13; see id., at 313. But in a case of successive prosecutions on the same charge, these difficulties do not exist: the speedy trial right should attach from the date of the initial accusation, a date which is simple to determine. In short, the majority’s decision to suspend application of the speedy trial right is not required by, and may be inconsistent with, our prior cases.

The majority also plainly ignores fundamental speedy trial policies. The special anxiety that a defendant suffers because of a public accusation does not disappear simply because the initial charges are temporarily dismissed. Especially when the defendant and the public are aware of an ongoing government investigation of the same charges, the defendant’s interest in final resolution of the charges remains acute. After all, the government has revealed the seriousness of its threat of prosecution by initially bringing charges. The majority thus paints an entirely unrealistic portrait when it suggests that such a defendant “is, at most, in the same position as any other subject of a criminal investigation.” Ante, at 8-9.

MacDonald was painfully aware of the ongoing Army and Justice Department investigations. He was interviewed again by military authorities soon after his honorable discharge. He repeatedly inquired about the progress of the investigations. He even proposed to submit to further interviews in order to speed final resolution of his case. MacDonald “realized that the favorable conclusion of the [military] proceedings was not the end of the government’s efforts to convict him. Prudence obliged him to retain attorneys at his own expense for his continuing defense. He remained under suspicion and was subjected to the anxiety of the threat of another prosecution.” MacDonald I, 531 F. 2d, at 204 (footnote omitted). It is simply absurd to suggest that he has suffered no greater anxiety, disruption of employment, financial strain, or public obloquy than if the military charges had never been brought.

The majority’s insistence that the dismissal of an indictment eliminates speedy trial protections is not only inconsistent with the language and policies of the Speedy Trial Clause and with this Court’s decisions. It is also senseless. Any legitimate government reason for delay during the period between prosecutions can, indeed must, be weighed when a court determines whether the defendant’s speedy trial right has been violated. No purpose is served by simply ignoring that period for speedy trial purposes. In Barker v. Wingo, 407 U. S. 514 (1972), this Court rejected an inflexible approach to the right to a speedy trial in favor of “a difficult and sensitive balancing process.” Id., at 533 (footnote omitted). Lower court opinions indicate that this responsibility can be faithfully discharged in the special circumstances of successive prosecutions.

It is no answer that the Due Process Clause protects against purposeful or tactical delay that causes the accused actual prejudice at trial. The due process constraint is limited, and does not protect against delay which is not for a tactical reason but which serves no legitimate prosecutorial purpose. See United States v. Lovasco, 431 U. S. 783 (1977). According only limited protection is appropriate prior to the first arrest or indictment because the state has a substantial interest in conducting a relatively unrestricted pre-accusation investigation, see id., at 790-795, and because a person not yet accused has a lesser interest in a speedy prosecution. But when a government has already investigated and accused a defendant, it is in a much better position, and properly shoulders a greater responsibility, to reinvestigate and re-prosecute the defendant with reasonable promptness. Moreover, as explained above, delay between public accusation, dismissal of charges, and renewed indictment causes peculiar anxiety to the accused, as well as the other consequences of arrest described in Marion. Thus, the government must affirmatively demonstrate a legitimate reason, other than neglect or indifference, for such a delay.

The majority’s approach denigrates speedy trial policies and presents a serious potential for abuse. Under that approach, the government could indefinitely delay a second prosecution for no reason, or even in bad faith, if the defendant is unable to show actual prejudice at trial. The Court of Appeals in this very case suggested that the Government may have proceeded on the assumption that pre-indictment delay would be of no speedy trial consequence. MacDonald I, supra, at 206, n. 17. I fear that, as a consequence of today’s decision, unreasonable and unjustifiable delay between prosecutions may become commonplace.

I — I I — i HH

I conclude that application of the speedy trial right was not suspended during the period between the Army’s dismissal of murder charges against MacDonald in October 1970 and the return of a civilian indictment on the same charges in January 1975. The question remains whether the delay violated his speedy trial right. I find the question close. However, after examining the four speedy trial right factors enunciated in Barker v. Wingo, supra—length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant — I agree with the Court of Appeals that MacDonald’s speedy trial rights were violated.

The proper focus for this analysis is the 26-month period between June 1972 and the convening of a grand jury in August 1974. Neither the District Court nor the Court of Appeals found any legitimate reason for this delay. As the Court of Appeals’ second panel concluded: “The primary reason for the two-year delay was either a disagreement between two groups in the Justice Department as to whether the case should be prosecuted, or just simple government bureaucracy (the contention of the involved Assistant U. S. Attorney).” 632 F. 2d 258, 262 (CA4 1980) (MacDonald II). Although the FBI did conduct further tests and investigation after the grand jury was convened, the Government has not demonstrated that it could not have pursued those leads earlier.

MacDonald undeniably asserted his right to a speedy trial vigorously and often, beginning in January 1972. Although the Government’s delay in pressing formal civilian charges prevented MacDonald from filing a formal motion to dismiss on speedy trial grounds, he invoked his right in the only meaningful way open to him. Indeed, the strength of his efforts is a powerful indication that he has suffered serious personal prejudice. See Barker v. Wingo, 407 U. S., at 531.

The last speedy trial factor, and the most difficult to evaluate on this record, is prejudice to the accused. Proof of actual prejudice to the defense at trial is not, of course, necessary to demonstrate a speedy trial violation. Moore v. Arizona, 414 U. S. 25 (1973) (per curiam). In Moore, this Court held that a defendant’s speedy trial claim should not have been dismissed without further hearing, where the defendant was tried three years after he was first charged and 28 months after he demanded a speedy trial. In this case, the period of unjustified delay is at least two years, and MacDonald demanded an early disposition prior to that period. Because of this delay, a speedy trial violation could be found in this case, even without proof of actual prejudice at trial. The record is clear that the delay caused MacDonald to suffer other forms of substantial prejudice, including continuing anxiety, intrusive publicity, legal expense, and disruption of a new civilian career.

The proof of actual prejudice at trial in this case, although somewhat speculative, does buttress MacDonald’s speedy trial claim. It is possible that Stoeckley’s trial testimony would have been less confused and more helpful to MacDonald at an earlier date. This testimony was critical to MacDonald, whose principal defense was that she was one of a group of intruders who committed the murders. Although Stoeckley was hardly a reliable witness, she did testify at trial that she had no memory of the events that night, in contradiction to some of her earlier out-of-court statements. See MacDonald II, 632 F. 2d, at 264-265. Her claim of loss of memory obviously became more credible with the passage of time. It is likewise possible that the inevitable “coaching” of Government witnesses prior to their testimony would have had lesser adverse impact on the defense, and could have been minimized more effectively by cross-examination, had the trial occurred earlier. See id., at 263-264. The unusual facts of this case, recited by the majority, suggest that slight differences in trial testimony may well have influenced the verdict.

Balancing these factors, I conclude that the Court of Appeals was correct in finding a speedy trial right violation. The Government undoubtedly has an interest in renewing the investigation of a charge that has been dismissed, in evaluating carefully whether a second prosecution should be brought, and in avoiding undue haste, especially when the charge is murder. By the same token, when such a serious charge has already been brought, and when the defendant is suffering the consequences of that public charge and of a renewed investigation, the Government must not delay its decision for reasons of indifference or neglect. The Government’s interest in reaching an informed decision whether to prosecute is certainly legitimate; but vague, unexplained references to internal disagreement about prosecution cannot justify more than two years of indecision. Because the record in this case reveals no legitimate reason for a substantial period of pretrial delay, and because MacDonald may have suffered prejudice at trial and clearly suffered other forms of prejudice, I would affirm the Court of Appeals’ ruling that his speedy trial right was violated.

> HH

The majority s opinion m this case is a disappointing exercise in strained logic and judicial illusion. Suspending application of the speedy trial right in the period between successive prosecutions ignores the real impact of the initial charge on a criminal defendant and serves absolutely no governmental interest. This Court has warned before against “allowing doctrinaire concepts ... to submerge the practical demands of the constitutional right to a speedy trial.” Smith v. Hooey, 393 U. S. 374, 381 (1969). The majority fails to heed that advice.

For the foregoing reasons, I dissent.

       A woman generally within this description was apparently seen by the military police as they rushed to answer respondent’s call. During the course of this case, considerable suspicion has been focused upon Helena Stoeckley. Stoeckley was 19 at the time and a heavy user of heroin, opium, mescaline, LSD, marihuana, and other drugs; within days after the crime she began telling people that she was involved in the murder or that she at least had accompanied the murderers and watched them commit the crimes. She also wore mourning dress and displayed a funeral wreath on the day of the victims’ funeral. The investigation confirmed that she had been seen returning to her apartment at 4:30 on the morning following the killings in the company of men also generally fitting the descriptions given by MacDonald. Stoeckley testified at trial that she had no memory of the night in question because she was “stoned” that night. She did, however, admit that at the time of the crime she owned and frequently wore a blond wig and a pair of white boots and that she destroyed them within a few days after the crime because they might connect her with the episode.

       Threads from MacDonald’s pajama top, supposedly torn in the living room, were found in the master bedroom, some under his wife’s body, and in the children’s bedroom, but not in the living room. There were 48 puncture holes in the top, yet MacDonald had far fewer wounds. The police were able to identify the bloodstains of each victim, and their location did not support MacDonald’s story. Blood matching the type of MacDonald’s children was found on MacDonald’s glasses and pajama top. Fragments of surgical gloves were found near the bodies of the victims; the gloves from which those fragments came were found under a sink in the house.

       MacDonald’s discharge barred any further military proceedings against him. United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955).

       The District Court had jurisdiction because the crimes were committed on military property. 18 U. S. C. §§7(3), 1111.

       In addition to the Speedy Trial Clause issue, MacDonald raised a number of issues involving the conduct of the trial and rulings of the trial judge. He also claimed that the delay in bringing him to trial resulted in a denial of his Fifth Amendment due process rights. The Court of Appeals declined to reach those issues. Accordingly, we do not decide those issues, instead leaving them for the Court of Appeals on remand.

       Our analysis of the speedy trial claim is not to be influenced by consideration of the evidentiary basis of the jury verdict. The jury that heard all of the witnesses and saw the evidence unanimously decided that respondent murdered his wife and children. .Respondent does not challenge the jury verdict itself.

       Our holding agrees with the determination made by Congress in enacting the Speedy Trial Act of 1974, 18 U. S. C. § 3161 et seq. The Act, intended “to give effect to the sixth amendment right to a speedy trial. . . ,” S. Rep. No. 93-1021, p. 1 (1974), provides that if charges are initially dismissed and later reinstated, the period between the dismissal and the reinstatement is not to be included in computing the time within which a trial must commence. 18 U. S. C. §§ 3161(d), 3161(h)(6).
      Most of the Courts of Appeals considering this issue have also reached the conclusion that the period after dismissal of initial charges is not included in determining whether the Speedy Trial Clause has been violated. See, e. g., United States v. Hillegas, 578 F. 2d 453, 457-458 (CA2 1978);
        Arnold v. McCarthy, 566 F. 2d 1377, 1383 (CA9 1978); United States v. Martin, 543 F. 2d 577 (CA6 1976), cert. denied, 429 U. S. 1050 (1977); United States v. Bishton, 150 U. S. App. D. C. 51, 55, 463 F. 2d. 887, 891 (1972). The Fifth Circuit reached a seemingly contrary result in United States v. Avalos, 541 F. 2d 1100 (1976), cert. denied, 430 U. S. 970 (1977). However in that case the court relied on unusual facts; the Government dismissed charges pending in one district in order to prosecute the defendants on those same charges in another district.
      In none of the cases cited in the dissenting opinion, post, at 17-18, n. 2, from the First, Seventh, or Tenth Circuits did the Court of Appeals consider or discuss the issue before us.

         Klopfer v. North Carolina, 386 U. S. 213 (1967), is not to the contrary. There, under an unusual state procedure, a prosecutor was able to suspend proceedings on an indictment indefinitely. The prosecutor could activate the charges at any time and have the case restored for trial, “without further order” of the court. Id., at 214. The charges against the defendant were thus never dismissed or discharged in any real sense so the speedy trial guarantee continued to apply.

       The Marion defendants were charged with operating a fraudulent home improvement business. The Court noted that the Washington Post ran a series of articles about the ongoing investigation of the business, and reported that the local United States Attorney predicted that indictments would be forthcoming. United States v. Marion, 404 U. S., at 309.

       The original Court of Appeals decision concluded “that MacDonald’s military arrest was the functional equivalent of a civilian arrest” for Speedy Trial Clause purposes. United States v. MacDonald, 531 F. 2d 196, 204 (CA4 1976). Judge Craven, dissenting, disagreed with that con-elusion, stating that the military proceedings were equivalent to a grand jury investigation followed by a failure to file an indictment. Id., at 209. In its petition for certiorari, the Government expressly declined to raise the issue of whether the military investigation triggered MacDonald’s Sixth Amendment rights; we therefore do not express any opinion on that issue.

       The initial Court of Appeals panel held that the prosecution by the Army and that by the Justice Department were conducted “by the government in its single sovereign capacity . . . .” Id., at 204. Of course, an arrest or indictment by one sovereign would not cause the speedy trial guarantees to become engaged as to possible subsequent indictments by another sovereign.

       There is no allegation here that the Army acted in bad faith in dismissing the charges. This is not a case where the Government dismissed and later reinstituted charges to evade the speedy trial guarantee. The Army clearly dismissed its charges because the Commanding General of MacDonald’s unit, following the recommendation of the Article 32 investigating officer, concluded that they were untrue.
      There is nothing to suggest that the Justice Department acted in bad faith in not securing an indictment until January 1975. After the Army dismissed its charges, it continued its investigation at the request of the Justice Department; the Army’s initial 13-volume report was not submitted to the Justice Department until June 1972, and supplemental reports were filed as late as August 1973. Within a year, the Justice Department completed its review of the massive evidence thus accumulated and submitted the evidence to a grand jury. The grand jury returned the indictment five months later.
      Plainly the indictment of an accused — perhaps even more so the indictment of a physician — for the heinous and brutal murder of his pregnant wife and two small children is not a matter to be hastily arrived at either by the prosecution authorities or by a grand jury. The devastating consequences to an accused person from the very fact of such an indictment is a matter which responsible prosecutors must weigh carefully. The care obviously given the matter by the Justice Department is certainly not any indication of bad faith or deliberate delay.

         Marion also notes that the statute of limitations will serve as protection in cases of pre-indictment delay. But no such protection exists here, since there is no statute of limitations for murder.

       Contrary to the majority’s suggestion, most of the Courts of Appeals considering the issue have concluded that the period after dismissal of initial charges is included for speedy trial purposes. The First, Fifth, Seventh, and Tenth Circuits have all reached this conclusion. See United

        States v. Cabral, 475 F. 2d 715 (CA1 1973); United States v. Nixon, 634 F. 2d 306, 308-309 (CA5), cert. denied, 454 U. S. 828 (1981); United States v. Avalos, 541 F. 2d 1100, 1108, n. 13 (CA5 1976); United States v. McKim, 509 F. 2d 769, 773 (CA5 1975); Jones v. Morris, 590 F. 2d 684 (CA7) (per curiam), cert. denied, 440 U. S. 965 (1979); United States v. DeTienne, 468 F. 2d 151, 155 (CA7 1972), cert. denied, 410 U. S. 911 (1973); United States v. Merrick, 464 F. 2d 1087, 1090 (CA10), cert. denied, 409 U. S. 1023 (1972). See also United States v. Small, 345 F. Supp. 1246, 1248-1250 (ED Pa. 1972) (holding that right attaches from initial military arrest through civilian trial, although in fact civilian indictment immediately followed dismissal of military charges). But see United States v. Davis, 487 F. 2d 112, 116 (CA5 1973), cert. denied, 415 U. S. 981 (1974).
      Even the Circuits whose opinions the majority cites as support have issued somewhat contradictory signals on this question. See United States v. Lai Ming Tanu, 589 F. 2d 82, 88-89 (CA2 1978) (leaving open question whether speedy trial right may ever apply continuously to successive state and federal prosecutions for the same transaction); United States v. Roberts, 548 F. 2d 665 (CA6), cert. denied sub nom. Williams v. United States, 431 U. S. 920 (1977) (considering time between dismissal and indictment for speedy trial purposes without discussing contrary opinion in United States v. Martin, 543 F. 2d 577 (CA6 1976), cert. denied, 429 U. S. 1050 (1977)); United States v. Henry, 615 F. 2d 1223, 1233, n. 13 (CA9 1980) (leaving question open, and limiting Arnold v. McCarthy, 566 F. 2d 1377 (CA9 1978), to the case of a dismissal following a mistrial); United States v. Lara, 172 U. S. App. D. C. 60, 63-65, 520 F. 2d 460, 463-465 (1975) (considering tactical Government delay between dismissal and indictment for speedy trial purposes).

       The Government argues that considering the time between dismissal and reinstitution of charges for speedy trial purposes will have untoward consequences: it will discourage prosecutors from dismissing charges that were obtained improperly or prematurely, or that appear unwarranted in light of new evidence, and it will dissuade prosecutors from reopening dismissed charges in light of changed circumstances. The argument is specious, since a court will consider the Government’s reasons for delay in ruling on the speedy trial issue. If the Government has dismissed charges in good faith and reopens the case based on material new evidence, then the delay should not count against the Government. In this case, the Court of Appeals sensitively evaluated the Government’s reasons for delay and only counted a portion of that time against the Government. See n. 7, infra.

       See, e. g., United States v. Henry, supra (assuming that time between indictments is considered in speedy trial calculus but finding no violation, where part of one-year delay was due to renewed investigation, part was due to negligence, and prejudice was not shown); United States v. Roberts,

        supra (considering time between dismissal of initial charges and return of indictment but finding no violation, where two of codefendants were involved in other court proceedings, evidence was co.mplex, witnesses changed their stories, prosecution needed to judge whether to use confidential informants, and defendant showed no actual prejudice); Jones v. Morris, supra (considering time between dismissal of first indictment and reinstitution of proceedings but finding no violation, where defendant did not assert speedy trial right until after second indictment was brought, on the eve of trial; where delay, although unexplained, was not in bad faith; and where defendant proved no special anxiety or actual prejudice); United States v. McKim, supra (considering time between first indictment and trial on third indictment but finding no violation, where delay was only one year and defendant did not prove actual prejudice).

       Whether the delay in this case falls within that category is unclear. The Court of Appeals did not reach the due process issue, and this Court therefore properly leaves it open on remand.

       The majority’s statement that the delay in this case was not in bad faith, ante, at 10-11, n. 12, is puzzling. Under the majority’s constricted view of the Sixth Amendment, the good or bad faith of the government in the period between successive prosecutions is entirely irrelevant to whether the defendant’s speedy trial right has been violated, since the defendant is not continually under formal accusation during that period.

       Although the total period of delay between initial prosecution and trial is more than nine years, the period prior to dismissal of military charges is not chargeable to the Government because those charges were promptly resolved. The Court of Appeals properly also gave little weight to the period between the CID’s initial reinvestigation and the submission of its report to the Justice Department in June 1972, since the prior dismissal for insufficient evidence warranted a more extensive investigation. The period subsequent to the civilian indictment was mainly consumed by judicial proceedings to evaluate MacDonald’s speedy trial claims.

       For example, a babysitter who had testified in 1970 that she had not seen an ice pick in MacDonald’s home had changed her story by the time of trial. Cross-examination by the defense did not cause her to reaffirm her earlier story. Tr. 3559-3560, 3567-3572.

       I therefore disagree with the majority that the speedy trial analysis should not be influenced by the evidentiary basis for the jury verdict. Ante, at 6, n. 6. Moreover it is obvious that respondent “does not challenge the jury verdict itself,” ibid., only because that issue is not directly presented on this petition.