OPINION AND ORDER
This cause is before the Court on Petition Under Title28 U.S.C. § 2254 for Writ of Habeas Corpus by Petitioner Byron De LaBeckwith, who is in state court custody under a sentence of lifeimprisonment. Having considered the Petition, Answer, allattachments to each, and supporting and opposing authority, theCourt findsthat the Petition for Habeas Corpus Relief is not well taken andshould be denied.
In the Petition for Writ of Habeas Corpus Relief, Beckwithrequested the Court to conduct an evidentiary hearing, andrequested authorization to conduct additional discovery. In aletter to the Court dated December 7, 1999, counsel for Beckwithwithdrew these requests.1 Therefore, the request for anevidentiary hearing and the request for additional discovery aredenied as moot.
I. Factual Background and Procedural History
This Petition for Habeas Corpus Relief (hereinafter "Petition")arises out of the conviction and subsequent life sentence ofPetitioner Byron De La Beckwith for the murder of civil rightsleader Medgar Evers. Evers was the first Field Secretary for theNational Association for the Advancement of Colored People in theState of Mississippi. Evers was murdered at his home in Jackson,Mississippi on June 12, 1963. Beckwith, a self-avowed whitesupremacist and pro-segregationist, was arrested and charged withthe murder of Evers on June 23, 1963. The Hinds County grand juryindicted Beckwith with Evers' murder during its July, 1963, term.
In 1964, Beckwith stood trial for the murder of Evers on twooccasions. The first trial took place in February, 1964, and thesecond trial occurred in April, 1964. Because of hung juries,both trials resulted in mistrials. Following the second trial,Beckwith was released on $10,000.00 bond. On March 10, 1969, thedistrict attorney in charge of Beckwith's case moved the court toenter a nolle prosequi2 of the indictment. On the same day,the three circuit judges of the Seventh Circuit Court Districtsigned and entered an order granting a nolle prosequi. Noobjection was raised by the defense to entry of the nolleprosequi. Some time after his release from custody, Beckwithmoved from Mississippi to Tennessee.
Although the murder of Medgar Evers received considerableattention over the years, no effort was made by the State ofMississippi to re-initiate criminal proceedings against Beckwithuntil 1990. During the December, 1990, term of the Hinds Countygrand jury, Beckwith was again indicted for the murder of Evers.Following an extradition contest in the Tennessee court system,Beckwith was extradited to Mississippi. Beckwith's request forbail was denied. The circuit court's denial of bail was affirmedby the Mississippi Supreme Court on March 25, 1992.
In April, 1992, Beckwith moved the circuit court for dismissalof the indictment. The motion for dismissal cited threeconstitutional grounds, namely (1) denial of the right to aspeedy trial, (2) denial of due process rights, and (3) doublejeopardy. Beckwith's motion for dismissal was denied on August 4,1992. Beckwith then petitioned the Mississippi Supreme Court foran interlocutory appeal, which was granted on August 26, 1992.Beckwith v. State, 615 So.2d 1134 (Miss. 1992), cert. denied,510 U.S. 884, 114 S.Ct. 232, 126 L.Ed.2d 187 (1993) (hereinafter"Beckwith I"). In Beckwith I, the court dismissed withoutprejudice Beckwith's interlocutory appeal as to his speedy trialand due process claims, holding essentially that those claimswere premature but could be raised again on appeal in the eventof Beckwith's conviction. Additionally, the Mississippi SupremeCourt affirmed the circuit court's denial of Beckwith's doublejeopardy claim. The case proceeded to jury trial in 1994,resulting in Beckwith's conviction for the murder of Evers.Beckwith was sentenced to life imprisonment.
Feeling aggrieved by the jury's verdict, Beckwith againappealed to the Mississippi Supreme Court.3 Byron De LaBeckwith, VI v. State, 707 So.2d 547 (Miss. 1997), cert.denied, 525 U.S. 880, 119 S.Ct. 187, 142 L.Ed.2d 153 (1998)(hereinafter "Beckwith II"). Affirming the trial court'sverdict, the Mississippi Supreme Court held:
1) Beckwith's due process rights were not violated by the 26 year delay between the second mistrial in 1964 and the second indictment in 1990;
2) Racist letters indicating Beckwith's involvement in the Ku Klux Klan were relevant to establish motive;
3) The circuit court's refusal to allow trial testimony from the second 1964 trial to be read into evidence during the 1994 trial did not constitute error;
4) Impeachment of witnesses through use of grand jury testimony did not constitute error;
5) Admission of photographs of Evers' body in its casket did not constitute undue prejudice; and
6) Transfer of venue for jury selection based on racial demographics did not violate Beckwith's right to an impartial jury or right to equal protection.
See Beckwith II, 707 So.2d 547 (Miss. 1997).
Having exhausted all state court remedies, Beckwith petitionedthis Court for habeas corpus relief. The Petition, which seeksrelief from Beckwith's conviction and life sentence, was filed onJune 15, 1999. The following three grounds for habeas corpusrelief are stated in the Petition. The grounds are:
1) Violation of Beckwith's Sixth Amendment right under the United States Constitution to a speedy trial caused by the 26 year delay which began in 1964 and ended with Beckwith's re-indictment in 1990;4
2) Violation of Beckwith's Fifth Amendment due process right under the United States Constitution to a speedy trial because the State waited 26 years to put him to trial.5 The 26 year delay allegedly crippled Beckwith's defense due to the deaths of witnesses, Beckwith's loss of memory and the loss of evidence; and
3) Violation of Beckwith's right to a fair trial and right to due process under the Fifth Amendment, and violation of Beckwith's compulsory process rights under the Sixth Amendment to the United States Constitution.6 These constitutional claims arise from alleged discovery violations relating to five witnesses who either testified in Beckwith's 1994 trial, or were prohibited from testifying by the trial court.
II. Analysis
A. Applicable Law / Standard of Review
Beckwith brings this Petition under 28 U.S.C. § 2254, whichstates in relevant part:
(a) [A] district court shall entertain an application for a writ of habeas corpus . . . pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(d) An application for a writ of habeas corpus . . . pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus . . . pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
28 U.S.C.A. § 2254.
The Antiterrorism and Effective Death Penalty Act of 1996[AEDPA], Pub.L. 104-132, 110 Stat. 12144, amended 28 U.S.C. § 2254to include the contents § 2254(d). AEDPA became effective onApril 26, 1996, the date on which President Clinton signed theact.7 Under AEDPA, pure questions of law and mixed questionsof law and fact are reviewed under subsection (d)(1), whereasquestions of fact are reviewed under subsection (d)(2). Corwinv. Johnson, 150 F.3d 467, 471 (5th Cir. 1998) (citing Drinkardv. Johnson, 97 F.3d 751, 767-68 (5th Cir. 1996), cert. denied,520 U.S. 1107, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997),implicitly overruled on other grounds by Lindh v. Murphy,521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). When reviewinga purely legal question, a federal court may grant habeas relief"only if it determines that a state court's decision rested on alegal determination that was `contrary to . . . clearlyestablished federal law as determined by the Supreme Court.'"Lockhart v. Johnson, 104 F.3d 54, 57 (5th Cir. 1997), cert.denied, 521 U.S. 1123, 117 S.Ct. 2518, 138 L.Ed.2d 1019 (1997)(citing Drinkard, 97 F.3d at 768, implicitly overruled onother grounds by Lindh, 521 U.S. 320, 117 S.Ct. 2059, 138L.Ed.2d 481)).
"Under the AEDPA deference scheme, a federal court will notdisturb a state court's application of law to facts unless thestate court's conclusions involved an `unreasonable application'of clearly established federal law as established by the SupremeCourt." Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998)(citing 28 U.S.C. § 2254(d)(1)) (other citations omitted). For astate court's application of federal law to be "unreasonable," itmust be "so clearly incorrect that it would not be debatableamong reasonable jurists." Nobles v. Johnson, 127 F.3d 409, 418(5th Cir. 1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845,140 L.Ed.2d 1094 (1998) (citing Drinkard, 97 F.3d at 769,implicitly overruled on other grounds by Lindh, 521 U.S. 320,117 S.Ct. 2059, 138 L.Ed.2d 481)). In other words, "anapplication of law to facts is unreasonable only when it can besaid that reasonable jurists considering the question would be ofone view that the state court ruling was incorrect." Drinkard,97 F.3d at 769, implicitly overruled on other grounds by Lindh,521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481; Davis, 158 F.3dat 812 (citations omitted); Corwin, 150 F.3d at 471-72(citation omitted). Unless rebutted by clearand convincing evidence, state court factual findings arepresumed to be correct. Jackson v. Johnson, 150 F.3d 520, 524(5th Cir. 1998), cert. denied, 526 U.S. 1041, 119 S.Ct. 1339,143 L.Ed.2d 503 (1999) (citing 28 U.S.C. § 2254(e)(1)).
Each of Beckwith's three grounds for habeas corpus relief isanalyzed under the constraints of 28 U.S.C. § 2254 and case lawinterpretations of the applicable provisions of § 2254.
Beckwith's three grounds for habeas relief, 1) Sixth Amendmentright to a speedy trial, 2) Fifth Amendment due process right toa speedy trial and 3) Fifth Amendment due process right to a fairtrial and Sixth Amendment right to compulsory process, are allmixed questions of law and fact. Therefore, the Court analyzesthese issue under the standards of 28 U.S.C. § 2254(d)(1). InBeckwith II, the Mississippi Supreme Court rejected all ofBeckwith's Constitutional claims, affirming his conviction andsentence. Beckwith II, 707 So.2d at 604 This Court must upholdthe decision of the Mississippi Supreme Court unless it is foundto be so clearly incorrect that reasonable jurists could notdisagree that the decision was erroneous. See Nobles, 127 F.3dat 418 (citation omitted).
B. Beckwith's Sixth Amendment Right to a Speedy Trial
(1) Time Period Over Which Beckwith's Right to a Speedy Trial Extends
As a preliminary issue, the Court must determine the timeperiod over which Beckwith's Sixth Amendment protection extends.The Commissioner of the Mississippi Department of Corrections andthe Mississippi Attorney General [hereinafter "Respondents"]contend that the protection extends from the time of Beckwith'ssecond mistrial on April 17, 1964, through entry of the nolleprosequi on March 10, 1969, a period of almost five years (1,787days). Beckwith contends that his Sixth Amendment speedy trialprotection extends from the second mistrial on April 17, 1964,until the prosecution re-indicted him in December, 1990, a periodof over twenty-six years.
The general rule regarding the time period utilized incalculating speedy trial violations was set forth by the UnitedStates Supreme Court in United States v. Loud Hawk,474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986). The Court held thatthe Sixth Amendment does not protect a defendant from all effectsflowing from pre-trial delays. Id. at 311, 106 S.Ct. at 654."[W]hen no indictment is outstanding, only the `actual restraintsimposed by arrest and holding to answer a criminal charge . . .engage the particular protections of the speedy trial provisionon the Sixth Amendment.'" Id. at 310, 106 S.Ct. at 653 (citingUnited States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463,30 L.Ed.2d 468 (1971)); see also, United States v. MacDonald,456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982). Underthe general rule set forth in Loud Hawk, the Sixth Amendmentspeedy trial right applies only to time periods when a person iseither under indictment or under arrest.
The United States Supreme Court discussed the intent behind thespeedy trial clause of the Sixth Amendment in United States v.MacDonald. In MacDonald, the Court held:
The Sixth Amendment right to a speedy trial is . . . not primarily intended to prevent prejudice to the defense caused by passage of time. . . . 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.
MacDonald, 456 U.S. at 8, 102 S.Ct. at 1502. The holding inMacDonald supports the general rule set forth in Loud Hawk.
The decision in United States v. Avalos, 541 F.2d 1100 (5thCir. 1976), cert. denied,430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977), represents anexception to the general rule set forth in Loud Hawk. Beckwithasserts that Avalso is controlling under the circ*mstances ofhis case. In Avalos, the defendants were originally arrested inWashington, D.C. Id. at 1108-09. After the defendants werearrested in Washington, the warrants were dismissed before thecase proceeded to trial. Id. at 1109 n. 13. However, afterdismissal of the District of Columbia arrest warrants, thedefendants were arrested and tried for the same crimes inFlorida. Id. at 1108-09. In granting defendants motion todismiss for lack of a speedy trial, the trial court held that thegovernment was forum shopping. Id. at 1105. Analyzing the pointin time at which the right to a speedy trial attaches, the courtheld that the basis for the arrest is critical. Id. at 1109(citation omitted). "[T]he arrest warrants were dismissed [inWashington, D.C.] not because of unrelated charges pending inanother court, but in order to prosecute the same charges inanother court." Id. at 1109 n. 13. Under this fact scenario,the court held that the right to a speedy trial attached at thetime of the original arrest in Washington, D.C. Id. at 1109.
The holding in Avalos is an exception to the general rule setforth in Loud Hawk. However, Avalos applies only undersimilar factual circ*mstances. The case sub judice does notpresent a fact scenario similar to the facts in Avalos.8Beckwith's indictment was not dismissed in 1969 in order toresume the prosecution in another jurisdiction, and thus did notconstitute "forum shopping" as in Avalos. Therefore, thegeneral rule set forth in Loud Hawk, that Sixth Amendmentspeedy trial protection extends only to time periods when thedefendant is under indictment or under arrest, applies toBeckwith's case. The time period in which Beckwith was eitherunder indictment or under arrest covers April 17, 1964, throughMarch 10, 1969. Consequently, this Court finds that the timeperiod over which Beckwith's right to a speedy trial under theSixth Amendment extends is from the time of his second mistrialon April 17, 1964, through entry of the nolle prosequi on March10, 1969.
(2) Analysis: Beckwith's Sixth Amendment Speedy Trial Right
At issue is whether the delay of almost five years (1,787 days)from Beckwith's second mistrial on April 17, 1964, until the datethat the indictment was dismissed on March 10, 1969, constitutesan unreasonable delay in violation of Beckwith's Sixth Amendmentright to a speedy trial. The Sixth Amendment to the United StatesConstitution guarantees all criminal defendants the right to aspeedy trial. In Beckwith II, the Mississippi Supreme Courtheld that Beckwith's Sixth Amendment right was not violated bythe delay. Beckwith II, 707 So.2d at 604. Because the issue wasdecided on the merits by the Mississippi Supreme Court, thisCourt will not disturb the ruling unless "reasonable juristsconsidering the question would be of one view that the statecourt ruling was incorrect." See Drinkard, 97 F.3d at 769,implicitly overruled on other grounds by Lindh, 521 U.S. 320,117 S.Ct. 2059, 138 L.Ed.2d 481; Davis, 158 F.3d at 812(citations omitted); Corwin, 150 F.3d at 471-72 (citationomitted).
A brief factual foundation is repeated for a clearunderstanding of this issue. Beckwith was initially arrested forthe murder of Medgar Evers on June 23, 1963. He was tried forEvers' murder on two occasions in 1964. Both trials ended inmistrial,the first on February 7, 1964, and the second on April 17, 1964.Beckwith was released on $10,000.00 bond after the secondmistrial. The charges against Beckwith were dismissed on March10, 1969, by the entry of the nolle prosequi by the State.
Analysis of whether Beckwith's Sixth Amendment right to aspeedy trial was violated requires application of a four factorbalancing test described by the United States Supreme Court inBarker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101(1972). The United States Court of Appeals for the Fifth Circuitsuccinctly summarized the Barker factors as follows: "(1) thelength of the delay, (2) the reason for the delay, (3) theassertion of the right, and (4) the prejudice to the defendant."Robinson v. Whitley, 2 F.3d 562, 568 (5th Cir. 1993), cert.denied, 510 U.S. 1167, 114 S.Ct. 1197, 127 L.Ed.2d 546 (1994)(citation omitted). The Court will both independently analyzeeach Barker factor and consider whether the Mississippi SupremeCourt analyzed the factors in a reasonable manner.
(a) length of delay
This "length of delay" test serves not only as the initialBarker factor, but also as a triggering mechanism for theremaining three Barker tests. Id. (citation omitted). Inother words, if the length of delay reaches a threshold level atwhich it is regarded as "presumptively prejudicial," thenfindings must be made on the remaining three factors. Id. at568. A delay of one year or more is sufficient to trigger a SixthAmendment speedy trial analysis. Id.
In the case sub judice, almost five years elapsed between thedate of Beckwith's second mistrial on April 17, 1964, and entryof the nolle prosequi on March 10, 1969. In Beckwith II, theMississippi Supreme Court correctly held that the delay waspresumptively prejudicial, requiring analysis and balancing ofthe four Barker factors. See Beckwith II, 707 So.2d at 566.
(b) reason for the delay
In Cowart v. Hargett, 16 F.3d 642, 647 (5th Cir. 1994),cert. denied, 513 U.S. 886, 115 S.Ct. 227, 130 L.Ed.2d 153(1994), the Fifth Circuit considered issues that must be analyzedunder the "reason for delay" Barker factor. The court held:
A deliberate and intentional delay by the prosecution for the purpose of hindering the defense or otherwise gaining a tactical advantage is weighed heavily against the state. An unintentional and inadvertent delay, however, is weighed much less heavily. Where the state advances valid reasons for the delay, or the delay is attributable to acts of the defendant, this factor is weighed in favor of the state.
Id. at 647 (citing Barker, 407 U.S. at 531, 92 S.Ct. at 2192.The Mississippi Supreme Court held that Beckwith was responsiblefor delay in question. Beckwith II, 707 So.2d at 566-67. Underthe deference standard of AEDPA, this Court will not disturb thestate court finding unless it is an unreasonable application oflaw to the facts. Davis, 158 F.3d at 812 (citing28 U.S.C. § 2254(d)(1)) (other citations omitted).
Holding that the "reason for delay" factor weighed againstBeckwith, the Mississippi Supreme Court relied on two bodies ofevidence. Beckwith II, 707 So.2d at 567. First, the courtrelied on a newspaper article published in the December 18, 1990,issue of the Clarion Ledger, the primary newspaper publication inJackson, Mississippi. Id. The article was presented to thetrial court by Beckwith's counsel. Id. Quoting DistrictAttorney Ed Peters, the article states:
Peters said he had been skeptical of the chances of a new prosecution in the Evers case. "The question of a new trial had been raised before, including at the 20th anniversary of Evers' death," Peters said. "It had always been my belief that the law would bar prosecution of this case, and I had always proceeded on this theory." Peters said. . . . "Until the Sovereignty Commission files, I never got past speedy trial, prior jeopardy, missing witnesses, missing evidence, dismissal of the indictment, mistrials. There were just too many things standing in the way," Peters said. The jury tampering question raised by the Sovereignty Commission records made Peters look at the case again. "I don't think what they did was morally right, but it wasn't legally wrong," Peters said of a Sovereignty Commission investigator's attempts to gather evidence about potential jurors. The Jurors themselves were not contacted before the trial. "Once the jury tampering investigation was opened, [Assistant District Attorney Bobby] DeLaughter expressed the opinion that it possibly would be tryable. I got him to look into it. He and two of our investigators have spent just untold days on putting the pieces back together," Peters said. "I would call it more of an evolution into the prosecution than just a headlong leap into, `This is justice.'" Peters said.
Id. at 567 (emphasis added). Based on this newspaper articleand files from the now defunct Mississippi State SovereigntyCommission (hereinafter "Sovereignty Commission")9, a stateagency, the Mississippi Supreme Court concluded that theSovereignty Commission, unbeknownst to the prosecution at thetime, aided Beckwith's defense during the two trials in 1964.Id. at 567.
The second evidentiary factor relied upon by the MississippiSupreme Court in holding that Beckwith caused the delay at issuewas a statement made by Beckwith himself. Id. Mark Reiley was awitness for the State at trial. Id. In a conversation betweenReiley and Beckwith, Beckwith stated "that he had `the power andconnections' in Mississippi to avoid incarceration for `gettingrid of that nigg*r, Medgar Evers.'" Id. The Mississippi SupremeCourt construed Beckwith's statements as "admitted complicity inthwarting the aims of fair and impartial justice." Id.Therefore, the "reason for delay" factor was weighed againstBeckwith. Id.
A central issue in Beckwith's argument that the "reason fordelay" factor weighs in his favor revolves around the question ofwhich party bears the burden of proving the reason for trialdelay. Beckwith alleges that Respondents must provide sufficientreasons for the delay, otherwise the Court is required to weighthis factor in his favor. Beckwith further alleges thatRespondents have not met their burden of proof. In support ofthis proposition, Beckwith cites United States v. Rogers,781 F. Supp. 1181 (S.D.Miss. 1991). In Rogers, the court assignedthe burden of justifying the delay to the government because "thegovernment was clearly responsible for the . . . delay." Id. at1186. In contrast, the Mississippi Supreme Court in Beckwith IIconcluded that Beckwith was responsible for the delay. BeckwithII, 707 So.2d at 567. This Court acknowledges that it would havepreferred for the Mississippi Supreme Court to have given moreextensive reasoning for its decision. However, the deferencescheme of § 2254(d) requires only that the decision of the statecourt is a reasonable application of law to the facts. TheMississippi Supreme Court provided two independent fact basedreasons for its finding that Beckwith was responsible for thedelay. The reasons include the Clarion Ledger newspaper articlereferring to the Sovereignty Commission's involvement in the 1964trials, and incriminating statementsmade by Beckwith himself. The findings of the state court,although brief, do meet the "reasonableness" standard of §2254(d). Therefore, because Beckwith was responsible for thetrial delay, the holding in Rogers does not apply to the casesub judice.
Beckwith further relies on a series of Mississippi state courtcases to support his argument that Respondents carry the burdenof proving that Beckwith caused the trial delay. See Jenkins v.State, 607 So.2d 1137 (Miss. 1992); State v. Ferguson,576 So.2d 1252 (Miss. 1991); Beavers v. State, 498 So.2d 788 (Miss.1986). However, in supporting a Sixth Amendment speedy trialclaim under § 2254, reliance on state court case law ismisguided. Section 2254 states that a writ of habeas corpus willnot be granted unless the underlying state court decision "wascontrary to, or involved an unreasonable application of, clearlyestablished Federal law. . . ." 28 U.S.C. § 2254(d)(1)(emphasis added). Based on the foregoing findings, Beckwith'sargument that Respondents have failed to meet their burden ofproof is not well taken.
Beckwith presents three additional arguments supporting hisproposition that the "reason for delay" factor of the Barkeranalysis favors him. First, the FBI and local prosecutors had aclose working relationship.10 Because of this close workingrelationship, Beckwith reasons that a third trial should havetaken place before entry of the nolle prosequi in 1969. Second,Beckwith contends that neither he nor his counsel caused thedelay.11 Third, after Peters assumed the district attorneyposition in 1972, he acknowledged that the prosecution wasdiscussed several times.12 Therefore, Beckwith alleges thatthe third trial should have occurred at a substantially earlierdate.
As to Beckwith's first two arguments, the Mississippi SupremeCourt found that because of interference by both the SovereigntyCommission and Beckwith himself, efforts to retry Beckwith werethwarted. Neither a close working relationship between state andfederal agencies nor self-serving statements by Beckwith and hisattorney provide sufficient reasoning under the deferencestandard of AEDPA for this Court to disturb the state courtfinding. The third argument concerning statements made byDistrict Attorney Peters is of no consequence because of thetiming of the statement. The time frame covered by this Court'sSixth Amendment speedy trial analysis is from 1964 through 1969.Peters did not take office until 1972, outside of the time framein question. For these reasons, the final three arguments made byBeckwith do not persuade the Court that the "reason for delay"Barker factor should be weighed in his favor.
The Mississippi Supreme Court found that the "reason for delay"Barker factor favored the State. This Court finds that thestate court ruling was a reasonable application of federal law tothe available facts. Therefore, under the deference standard ofAEDPA, the state court ruling will not be disturbed.
(c) assertion of the right
The third factor considered by the Court is whether Beckwithasserted his right to a speedy trial. Prior to the Barkerdecision, most states recognized the "demand rule." Barker, 407U.S. at 524, 92 S.Ct. at 2188.Under the "demand rule," a defendant waives his Fifth Amendmentright to a speedy trial during any period that no demand fortrial is made. Id. at 525, 92 S.Ct. at 2189. In Barker, theUnited States Supreme Court rejected the "demand rule." Id. at528, 92 S.Ct. at 2191. The Court held:
We reject . . . the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.
Barker, 407 U.S. at 528, 92 S.Ct. at 2191 (internal footnoteomitted). The Court noted that failure to assert the right to aspeedy trial complicates the determination of whether the rightwas violated. Id. at 532, 92 S.Ct. at 2193. However, "courtsshould `indulge every reasonable presumption against waiver'" ofthe right to a speedy trial. Id. at 525, 92 S.Ct. at 2189(citation omitted).
Weighing this factor against Beckwith, the Mississippi SupremeCourt in Beckwith II stated:
There was no assertion of the speedy trial right. Beckwith argues that several newspaper clippings and one document opposing a mental evaluation establish proof that he asserted his right to a speedy trial. All of these clippings, and the document in question, concern the time period prior to Beckwith's earlier trials. No proof of any sort suggests that Beckwith requested or wanted a third trial.
Beckwith II, 707 So.2d at 567. This Court agrees with theholding of the Mississippi Supreme Court.
Beckwith cites eight sources which allegedly indicate that herequested a speedy trial. The first source is the Response ofDefendant to the Suggestion of Insanity and Motion for MentalExamination of the Defendant, which was filed in the CircuitCourt of the First Judicial District of Hinds County,Mississippi, on July 13, 1963. See Petition for Writ of HabeasCorpus, Exhibit "Y." This Motion was filed in relation toBeckwith's first murder trial. Arguing against the Motion forMental Examination, Beckwith's counsel stated "that among hisconstitutional rights which will be violated by such anexamination . . . are his right to a speedy trial." Id.
The second through fifth sources that Beckwith cites supportinghis allegation that a speedy trial request was made are newspaperarticles published in either the Commercial Appeal in Memphis,Tennessee, or the Jackson Daily News in Jackson, Mississippi.See Petition for Writ of Habeas Corpus, Exhibit "Z," Exhibit"AA," Exhibit "BB," and Exhibit "CC." The publication dates ofthe articles range from August 9, 1963, through November 20,1963. Id. All of the articles refer to Beckwith's speedy trialrights. However, all of the articles relate to Beckwith's initialmurder trial. Id. None refer to the possibility of a thirdtrial subsequent to the two mistrials in 1964.
Both Beckwith's Response to the Motion for Mental Examinationand all of the referenced newspaper articles concern Beckwith'srequest for a speedy trial prior to the first two mistrials in1964. No evidence is presented in any of those sources indicatingthat Beckwith sought a speedy trial between the time of thesecond mistrial in 1964, and the time of entry of the nolleprosequi in 1969. Because the time frame at issue in thisPetition for Habeas Corpus Relief begins at the date of thesecond mistrial in April, 1964, none of Beckwith's first fivesources support his proposition that he requested a speedy trialprior to entry of the nolle prosequi in 1969.
The sixth source relied on by Beckwith is a quote from thehearing in which counsel for Beckwith argued for dismissal of the1990 re-indictment. See Petition for Writ of Habeas Corpus,Exhibit "K," Transcript, Denial of Motion to Dismiss Indictment.During the hearing, Beckwith stated that he was "available" fortrial from the time of the second mistrial in 1964, through entryof the nolle prosequi in 1969. Id. at 21-22. Additionally,Beckwith alleges that during that time frame, he asked hisattorneys to seek a third trial or to take steps to "[t]hrow thething out . . . the best way you can. . . ." Id. at 70-74.There is no evidence that his attorneys did anything to try toaccomplish Beckwith's stated objective.
The seventh source cited in support of Beckwith's claim that aspeedy trial was requested is a sworn affidavit by Beckwith. Inthe affidavit, Beckwith stated that both he and his lawyers wereprepared and available for a third trial. See Petition for Writof Habeas Corpus, Exhibit "Q," Affidavit of Byron De La Beckwith.The eighth and final source relied upon by Beckwith is theaffidavit of Hardy Lott. See Petition for Writ of HabeasCorpus, Exhibit "O," Affidavit of Hardy Lott. Lott was one of theattorneys who represented Beckwith at the 1964 murder trials.Id. Referring to the time frame from the second mistrial in1964, through entry of the nolle prosequi in 1969, Lott stated"[d]uring that time I did nothing on Beckwith's behalf to delayor prevent a third trial of the murder case, but was expectingthat a third trial would occur and remained ready for trial."Id.
The sixth through eighth sources relied upon by Beckwith insupport of his allegation that a speedy trial was requested arenot well taken. All of these sources indicate that Beckwith andhis attorneys were ready for trial during the 1964 through 1969time frame, but none prove that either Beckwith or his attorneysrequested a third trial. Being prepared for trial does not meetthe requirement of requesting a trial. Therefore, these sourcesof information cannot support Beckwith's claim that his SixthAmendment right to a speedy trial was violated.
Beckwith has presented no evidence indicating that he requesteda trial from the time of the second mistrial in 1964, throughentry of the nolle prosequi in 1969. For this reason, the Courtwill not disturb the finding of the Mississippi Supreme Courtthat Beckwith failed to request a third trial. The third Barkerfactor weighs in favor of Respondents.
(d) prejudice to the defendant
The fourth and final Barker factor requires the Court toconsider whether a delay in bringing Beckwith to trial prejudicedBeckwith's defense in any way. Analyzing this factor, theMississippi Supreme Court in Beckwith II recognized that "whenthe length of delay is presumptively prejudicial, the burden ofpersuasion is on the state to show that the delay did notprejudice the defendant." Beckwith II, 707 So.2d at 567.However, the defendant must show that the delay actuallyprejudiced his defense in some manner. Id. Otherwise, thisprong of the Barker test must be weighed against the defendant.Id. Refusing to weigh this factor against the State, theMississippi Supreme Court concluded that Beckwith presented noevidence supporting his allegation of prejudice. Id. at 568. Infact, during the five year period in question, the court foundthat all material evidence was preserved. Id. This Court agreeswith the findings of the Mississippi Supreme Court.
Concerning possible prejudice to the defendant resulting from atrial delay, the United States Supreme Court has identified threeinterests to consider.13 Barker, 407 U.S. at 532, 92 S.Ct.at 2193. The interests are: "(i) to prevent oppressive pretrialincarceration; (ii) to minimize anxiety and concern of theaccused; and(iii) to limit the possibility that the defense will beimpaired." Id. (citations omitted).
The first interest identified by Barker, prevention ofoppressive pretrial incarceration, does not apply to the casesub judice. Beckwith was released on bail after the secondmistrial in April, 1964. He remained free on bail until theindictment was dismissed via a nolle prosequi in March, 1969.Therefore, the first interest weighs in favor of neither Beckwithnor the Respondents.
Beckwith argues that the second interest identified inBarker, minimization of anxiety and concern over a pendingtrial, should be weighed in his favor. During arguments beforethe Hinds County Circuit Court concerning Beckwith's motion todismiss the 1990 re-indictment, Beckwith was asked "how did thefact that this matter was hanging over your head affect you, Mr.Beckwith?" See Petition for Writ of Habeas Corpus, Exhibit "K,"Transcript, Denial of Motion to Dismiss Indictment, p. 22.Beckwith answered "it affected me in every way that carrying aburden of murder unjustly on a man's shoulders and his family hadto carry all that, too, so it was double, triple and quadrupleburden. . . ." Id. Beckwith further alleged that he and hisfriends were under a financial burden due to the alleged unjustmurder indictment. Id. at 36.
The United States Court of Appeals for the Fifth Circuitanalyzed the level of anxiety necessary to trigger an effectiveprejudice claim by a defendant. Cowart, 16 F.3d at 647."Anxiety about one's reputation and private life during pretrialdelay . . . will not alone suffice to warrant a reversal of aconviction." Id. (citation omitted). Furthermore, "[a]nxiety ofthe sort `present to some degree in virtually every case' doesnot amount to actual prejudice." Avalos, 541 F.2d at 1115(citations omitted). Applying these standards to Beckwith'sPetition for Habeas Corpus Relief, this Court finds that thelevel of anxiety suffered by Beckwith does not rise to the levelof prejudice. Anxiety about one's personal and/or family life isinadequate to trigger a finding of prejudice. Also, financialstrains imposed by a criminal prosecution are of the type ofanxiety suffered to some degree in all cases. Therefore, thesecond interest set forth in Barker does not weigh in favor ofBeckwith.
The third interest set forth in Barker is an interest inlimiting the possibility that the defense will be impaired. Ofthe three interests, this is the most important. Barker, 407U.S. at 532, 92 S.Ct. at 2193. Fairness of the criminal justicesystem hinges upon this interest. Doggett v. United States,505 U.S. 647, 654, 112 S.Ct. 2686, 2692, 120 L.Ed.2d 520 (1992)(citation omitted).
The concern of this Court in determining whether Beckwith'sdefense was impaired relates to proof of impairment caused by thedelay. "[A]ffirmative proof of particularized prejudice is notessential to every speedy trial claim[,]" because "time's erosionof exculpatory evidence and testimony `can rarely be shown.'"Id. at 655, 112 S.Ct. at 2692-93 (citations omitted). CitingDoggett, the Fifth Circuit summarized three situations in whicha criminal defendant must show varying degrees of prejudice.Robinson, 2 F.3d at 570 (citing Doggett, 505 U.S. at 656-57,112 S.Ct. at 2693). The degree of proof that a defendant mustprovide in each of the three situations varies inversely with theamount of fault assigned to the government for the delay.Robinson, 2 F.3d at 570 (citation omitted). In the firstsituation, if the government was reasonably diligent in bringingthe defendant to trial, then the defendant must show "specificprejudice to his defense." Id. (citation omitted). At theopposite end of the spectrum, if the government inexcusablycaused the delay, then the delay presents "an overwhelming casefor dismissal." Id. (citation omitted). The middle ground isreferred to as "official negligence." Id. (citation omitted).If the government's conduct falls into neither of theaforementioned categories, then the court must "determine whatportion of the delay is attributableto the Government's negligence and whether this negligent delayis of such a duration that prejudice to the defendant should bepresumed." Id. at 570 (citation omitted).
With these tests in mind, this Court considers whether Beckwithwas prejudiced by the delay beginning with his second mistrial inApril, 1964, and ending with entry of the nolle prosequi inMarch, 1969. As analyzed above, this Court concluded thatBeckwith himself was responsible for the delay. See supra,section II.B.(2)(b) of this Opinion and Order. Therefore, underthe standards set forth in Robinson, Beckwith must come forwardwith specific prejudice to his defense.
Beckwith recites twenty-four elements in support of hisallegation of prejudice caused by the delay. See MemorandumBrief in Support of Petitioner Byron De La Beckwith, VI'sPetition for Habeas Corpus, pp. 23-30. Of the twenty-fourelements cited by Beckwith, only one falls within the time framebetween 1964 and 1969. All other elements concern prejudice toBeckwith at his third trial in 1994. As found by this Courtabove, the time frame covered by Beckwith's Sixth Amendment rightto a speedy trial is from the date of his second mistrial inApril, 1994 through entry of the nolle prosequi in March, 1969.See supra, section II.B.(1) of this Opinion and Order.Therefore, only the one event which occurred between 1964 and1969 is considered.
The only prejudicial occurrence cited by Beckwith between 1964and 1969 was the death of Sam Warren, who was a defense witnessin Beckwith's second trial in 1964. See Memorandum Brief inSupport of Petitioner Byron De La Beckwith, VI's Petition forHabeas Corpus, p. 24. At Beckwith's first trial, prosecutionwitness Lee Swilley testified that he could positively identifyBeckwith. Id. During Beckwith's second trial, Warren impeachedSwilley. Id. Warren testified that Swilley lied about hiscapability to identify Beckwith. Id. Warren died on November14, 1968. Therefore he could not have testified had the Statedecided to proceed with a third trial between the date of hisdeath in 1968, and the date of entry of the nolle prosequi in1969.
This Court must determine whether the death of Warrenprejudiced the defense of Beckwith. A diligent "search forprejudice" reveals none. Beckwith was not retried in 1969; thecharges against him were dismissed via a nolle prosequi. InDoggett, the Court stated that "excessive delay presumptivelycompromises the reliability of a trial . . ." Doggett, 505U.S. at 655, 112 S.Ct. at 2693 (emphasis added). Because no trialoccurred during the time frame in question, Beckwith could nothave been prejudiced by Warren's death. There was no need forWarren's testimony because no trial took place; the chargeagainst Beckwith was dismissed. For this reason, the thirdinterest set forth in Barker cannot be weighed in favor ofBeckwith.
As found by the Mississippi Supreme Court in Beckwith II,none of the three interests detailed in Barker support ashowing of prejudice resulting from the delay beginning atBeckwith's second mistrial in April, 1964, and ending when theindictment was dismissed in March, 1969. Therefore, the fourthand final Barker factor, prejudice to the defendant, is weighedin favor of the Respondents.
(3) Conclusion, Beckwith's Sixth Amendment Speedy Trial Right
Finding that Beckwith's Sixth Amendment right to a speedy trialwas not violated, the Mississippi State Supreme Court inBeckwith II held:
Our balancing of the Barker factors for this five-year period weighs in favor of the State. Even though the amount of time is counted against the State, the defendant's complicity with the Sovereignty Commission's involvement in the prior trials contributed to the delay; the defendant did not assert his right to a trial during this period; and no prejudice resulted from a nolle prosequi of all counts against Beckwith, since all material evidence had been preserved from prior proceedings.
Beckwith II, 707 So.2d at 568. Under the deference scheme ofAEDPA, this Court will not disturb the ruling of the MississippiSupreme Court unless the conclusions of the court involve anunreasonable application of clearly established federal law. SeeDavis, 158 F.3d at 812 (citations omitted). No unreasonableapplication of federal law is found in the decision of theMississippi Supreme Court. Therefore, Beckwith's prayer forhabeas corpus relief based on his Sixth Amendment speedy trialright should be denied.
Although a finding that the holding of the state court was inaccord with federal law is sufficient to comply with thedeference standard of AEDPA, this Court analyzed the Barkerfactors independently. Based on this Court's own analysis of theBarker factors, an independent conclusion is made thatBeckwith's Sixth Amendment right to a speedy trial was notviolated. The Court particularly emphasizes Barker factor four,prejudice to the defendant. Beckwith was not retried in 1969; theindictment against him was dismissed. Because the charge againstBeckwith was dismissed rather than retried, it is clear thatBeckwith was not prejudiced. For this reason and all of theforegoing reasons, the Court finds that Beckwith's SixthAmendment speedy trial right was not violated. Habeas corpusrelief cannot be granted based on the alleged violation ofBeckwith's Sixth Amendment right to a speedy trial.
A. Beckwith's Fifth Amendment Due Process Right to a Speedy Trial
At issue is whether Beckwith's Fifth Amendment due processright was violated by the delay in re-indicting him until 1990. Abrief review of the facts is necessary for a clear understandingof this issue. Beckwith was tried for the murder of Evers on twooccasions in 1964. Both trials ended in mistrial because of hungjuries. In 1969, the indictment against Beckwith was dismissedupon entry of a nolle prosequi. In 1990, after the SovereigntyCommission files which revealed the Sovereignty Commission hadassisted Beckwith with his jury selection were released to thepublic, the State re-indicted Beckwith for the murder of Evers.The State alleges that the re-indictment was based on newinformation contained in the Sovereignty Commission files. Thenew information allegedly indicated that both Beckwith and theSovereignty Commission participated in obstructing theprosecution of Beckwith during the two trials in 1964. Beckwithwas retried for Evers' murder in 1994. The trial resulted inBeckwith's conviction and a sentence of life imprisonment.Beckwith alleges that from the time of the second mistrial in1964, until the re-indictment in 1990, defense witnesses died orbecame unavailable; witnesses, including Beckwith himself, losttheir ability to remember key facts and events; and criticalexculpatory evidence was lost. As a result, Beckwith furtheralleges that he was denied his Fifth Amendment due process rightbecause of the pre-indictment delay.14
The issue of whether Beckwith's Fifth Amendment due processright was violated by the delay in his re-indictment was fullylitigated before the Mississippi Supreme Court. Based on thedeference scheme of AEDPA, this Court will not disturb theholding of the Mississippi Supreme Court unless "reasonablejurists considering the question would be of one view that thestate court ruling was incorrect." See Drinkard, 97 F.3d at769, implicitly overruled on other grounds by Lindh,521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481; Davis, 158 F.3d at 812(citations omitted); Corwin, 150 F.3d at 471-72 (citationomitted). Furthermore, unless the application of law to the factsby the Mississippi Supreme Court is an unreasonable applicationof federal law, the state court findings will not be overturned.See Davis, 158 F.3d at 812. Based on these standards, the Courtconsiders applicable federal law regarding due process violationsresulting from pre-indictment delay.
Potential prejudice to a defendant caused by pre-indictmentdelay is analyzed under the due process clause of the FifthAmendment to the United States Constitution. United States v.Byrd, 31 F.3d 1329, 1339 (5th Cir. 1994) (citing United Statesv. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)(other citations omitted). "[T]he Speedy Trial Clause [of theSixth Amendment] has no application after the Government, actingin good faith, formally drops charges. Any undue delay aftercharges are dismissed, like any delay before charges are filed,must be scrutinized under the Due Process Clause, not the SpeedyTrial Clause." MacDonald, 456 U.S. at 7, 102 S.Ct. at 1501.Based on the holdings in Byrd and MacDonald, the Courtanalyzes the delay in re-indicting Beckwith under the due processclause of the Fifth Amendment.
With regard to pre-indictment delay, statutes of limitationsprovide a defendant's primary protection and "the Due ProcessClause has a limited role to play in protecting againstoppressive delay." United States v. Lovasco, 431 U.S. 783, 789,97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977) (citations omitted)(emphasis added). The Mississippi statute of limitationsgoverning criminal charges does not impose a limitation period onthe crime of murder. Miss.Code Ann. § 99-1-5 (1999). Therefore,Beckwith's only protection against pre-indictment delay is thedue process clause of the Fifth Amendment.
To successfully assert a Fifth Amendment due process violationfor pre-indictment delay, the defendant must satisfy a two factortest. United States v. Willis, 583 F.2d 203, 207 (5th Cir.1978) (citations omitted). First, the defendant must show thatthe prosecuting authority intentionally delayed the indictmentwith the intent to gain a tactical advantage. United States v.Beszborn, 21 F.3d 62, 65-66 (5th Cir. 1994) (citation omitted),cert. denied, 513 U.S. 934, 115 S.Ct. 330, 130 L.Ed.2d 288(1994); Willis, 583 at 207 (citations omitted) Second, thedefendant must prove actual prejudice resulting from the delay.Beszborn, 21 F.3d at 66 (citation omitted); Willis, 583 F.2dat 207 (citations omitted). The burden of proving these twofactors lies with the defendant. Willis, 583 F.2d at 207. "Thecourt derived this two-pronged test from a construction of theSupreme Court's holding in United States v. Marion,404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)." Id. Following is ananalysis of the two-pronged test as applied to Beckwith's case.
(1) Factor # 1: Whether the State Intentionally Delayed the Re-indictment of Beckwith in Order to Gain a Tactical Advantage
Two distinctive sub-issues fall under this topic. The first iswhether the State intentionally delayed Beckwith's re-indictmentto gain a tactical advantage. The second is whether Beckwith canclaim a due process violation in the absence of provenintentional delay by the State. In other words, the Court mustdecide whether the two-prong test described above is an "and"test, requiring satisfaction of both the intentional delayelement and the prejudice to the defendant element tosuccessfully assert a due process violation, or whether the testis an "or" test, requiring a balancing of the two factors.
(a) Whether the State Intentionally Delayed the Re-indictment of Beckwith
"To prove that pre-indictment delay violated his due processrights, a defendant must demonstrate' that the prosecutorintentionally delayed the indictment to gain a tacticaladvantage. . . ." Byrd, 31 F.3d at 1339 (citations omitted)(emphasis added). The mere passage of time is insufficient tosupport a due process claim, even if the time lapse prejudicedthe defense.Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir. 1991)(citations omitted), cert. denied, 502 U.S. 875, 112 S.Ct. 214,116 L.Ed.2d 172 (1991). The United States Court of Appeals forthe Eleventh Circuit correlates an "intentional delay" with adelay motivated by "bad faith." See United States v. Foxman,87 F.3d 1220, 1223 n. 2 (11th Cir. 1996). The Eleventh Circuitdefines a "bad faith" government motive as follows:
[T]he words "bad faith" . . . mean that the government acted to delay an indictment, hoping that the delay — in and of itself — would prejudice the defense. In "bad faith" cases, the government intentionally acts to delay; and the tactical advantage sought is the prejudice to the defendant which the government anticipates will flow from the delay.
But, bad faith in this sense or in the sense of a subjective sinister motive is not critical to a due process violation for pre-indictment delay. The critical element is that the government makes a judgment about how it can best proceed with litigation to gain an advantage over the defendant and, as a result of that judgment, an indictment is delayed.
Id. (emphasis added). In the context of a due process violationresulting from pre-indictment delay, the Court adopts thedefinition of the Eleventh Circuit for the term "intentionaldelay."
Analyzing the issue of whether the State intentionally delayedthe re-indictment of Beckwith, the Mississippi Supreme Court inBeckwith II held:
The question of whether the State intentionally delayed re-indictment of Beckwith is . . . answered by newspaper articles cited by Beckwith. In an August 17, 1987 article in The Clarion Ledger, District Attorney Ed Peters was quoted as follows: "There is no way under any stretch of the law that this case could be tried again. Anyone having the first class in law school ought to know that." As is further clarified by Mr. Peters' later statements in the previously mentioned December 18, 1990 article, the State never anticipated bringing new charges against Beckwith until the earlier involvement of the State Sovereignty Commission in Beckwith's defense was discovered. These statements establish satisfactorily that the State never intentionally delayed prosecution to gain tactical advantage.
Beckwith II, 707 So.2d at 570. This Court agrees with thefindings of the Mississippi Supreme Court. Nothing in the recordindicates that the State of Mississippi intentionally delayedre-indictment of Beckwith until 1990 in order to gain a tacticaladvantage.
Supporting the proposition that the State intentionally delayedhis re-indictment, Beckwith relies on a quote from the State'sbrief filed with the Mississippi Supreme Court. See MemorandumBrief in Support of Petitioner Byron De La Beckwith, VI'sPetition for Habeas Corpus, Exhibit "X." Describing the reasonfor the delay in Beckwith's re-indictment, the brief states"[t]he reason for the delay is simple; the district attorney hadbrought Beckwith to trial twice and, with the political andemotional climate of the time, was justified in assuming that athird trial, with an all-white jury, would reach the sameconclusion." Id. Beckwith argues that this quote provides proofthat the State delayed re-indictment until a more favorableracial climate for prosecution developed. Beckwith's argument isnot well taken. The quote proves nothing more than the obvious;because of the racial climate in Mississippi in the 1960's, athird prosecution of Beckwith would have been fruitless and awaste of state resources. Nothing in the quote proves that theState intended to re-indict Beckwith at a later date. To thecontrary, statements made by the Mississippi District Attorney in1987 indicate that Mississippi had no intention of re-indictingBeckwith in the mid-1980's. The State did not re-indict Beckwithuntil 1990, after release of the Sovereignty Commission filesrevealed that Beckwith's 1964trial defenses were aided by the Sovereignty Commission. Forthese reasons, this Court finds that the State of Mississippi didnot intentionally delay re-indictment of Beckwith in order togain a tactical advantage.
(b) Whether Beckwith's Due Process Claim is Viable in the Absence of Proof of an Intentional Delay by the State
This issue compels the Court to decide whether Beckwith cansuccessfully assert a due process violation claim in the absenceof proven intentional delay by the State. The question facing theCourt is whether the two-prong test for a due process violationresulting from pre-indictment delay is an "and" test, or an "or"test. If the test is an "and" test, then satisfaction of both theintentional delay element and the prejudice to the defendantelement is necessary to successfully assert a claim of dueprocess violation. If the test is an "or" test, then both factorsmust be considered and balanced.
This issue was addressed by both the United States SupremeCourt and the Fifth Circuit Court of Appeals. In Lovasco, theUnited States Supreme Court held "Marion makes clear that proofof prejudice is generally a necessary but not sufficient elementof a due process claim, and that the due process inquiry mustconsider the reasons for the delay as well as prejudice to theaccused." Lovasco, 431 U.S. at 790, 97 S.Ct. at 2048-49 (citingMarion, 404 U.S. at 324-25, 92 S.Ct. at 465). The holdings inLovasco and Marion were analyzed by the Fifth Circuit inUnited States v. Crouch, 84 F.3d 1497 (5th Cir. 1996), cert.denied, 519 U.S. 1076, 117 S.Ct. 736, 136 L.Ed.2d 676 (1997).Recognizing that neither Lovasco nor Marion are definitive onthe issue of whether proof of both intentional delay by thegovernment and prejudice to the defendant are required for asuccessful due process claim, the Fifth Circuit in Crouch held"we believe that the better reading of these opinions is that theSupreme Court, in instances where the statute of limitations hasnot run, has refused to recognize a claim of pre-indictment delayabsent some bad faith or improper purpose on the part of theprosecution." Id. at 1510 (citation omitted). Crouchestablishes the test in the Fifth Circuit: a Defendant must proveprejudice to his case resulting from pre-indictment delay andthat the government intentionally delayed the indictment processto gain a tactical advantage.15 A majority of circuits followthe same rule, including the District of Columbia Circuit, theFirst Circuit, the Second Circuit, the Third Circuit, the SixthCircuit, the Seventh Circuit, the Tenth Circuit and the EleventhCircuit. Id. at 1511-12 (citations omitted).
Based on the holdings in Lovasco, Marion and Crouch, thisCourt finds that Beckwith must prove not only prejudice to hisdefense but also that the government intentionally delayed hisindictment in order to gain a tactical advantage. BecauseBeckwith failed to prove that the State intentionally delayed hisre-indictment until 1990 to gain a tactical advantage, his FifthAmendment due process claim fails. For this reason, the Courtneed not consider whether Beckwith's defense wasprejudiced by the pre-indictment delay. However, in the eventthat this Court is in error in regard to the indictment delayissue, the Court will, in the alternative, analyze whether theruling of the Mississippi Supreme Court on the issue of prejudicewas in accord with established federal law.
(2) Factor # 2: Whether Beckwith Was Prejudiced by the Delay in His Re-indictment
The Fifth Circuit has set forth several guidelines to determinewhether a defendant is prejudiced by a pre-indictment delay. Themere passage of time is insufficient to prove prejudice to thedefendant. United States v. Butts, 524 F.2d 975, 977 (5th Cir.1975). To establish a due process claim based on pre-indictmentdelay, the defendant must prove actual prejudice; presumedprejudice is insufficient. Beszborn, 21 F.3d at 66. A dueprocess claim is merely speculative without proof of actualprejudice. Id. "Vague assertions of lost witnesses, fadedmemories, or misplaced documents are insufficient to establish adue process violation from pre-indictment delay." Id. at 67(citations omitted). To support a due process claim throughallegations of lost or unavailable witnesses, the defendant mustshow that "their testimony `would have actually aided thedefense.'" Crouch, 84 F.3d at 1515 (citations omitted). Basedon these guidelines, this Court will determine whether theholding of the Mississippi Supreme Court on the issue ofprejudice to Beckwith's defense was in accordance with federallaw.
Holding that Beckwith did not prove prejudice to his defenseresulting from the pre-indictment delay, the Mississippi SupremeCourt in Beckwith II relied primarily on Beszborn. The courtstated:
Beszborn had shown nothing that the deceased witnesses would say which would have affected the case, nor did he show anything that could be proved by any missing or misplaced documents. Beckwith is in the same position. Witnesses for both the state and the defense had died in the interim between the trials, but testimony from previous trials was available and was read to the jury. Beckwith did not put into the record any facts he could have proved by these deceased witnesses that did not go to the jury through their prior testimony. Nor does his claim of memory loss fare any better.
Beckwith II, 707 So.2d at 570. In the Petition for HabeasCorpus Relief, Beckwith details twenty-four separate elementsthat he claims prejudiced his defense. See Memorandum Brief inSupport of Petitioner Byron De La Beckwith, VI's Petition forHabeas Corpus, pp. 23-30. Because Beckwith failed to prove thatthe State intentionally delayed his re-indictment for tacticalreasons, which results in failure of his speedy trial due processclaim, each of these elements will not be individually analyzed.However, this Court recognizes that the elements which allegedlyconstitute prejudice were considered and rejected by theMississippi Supreme Court in Beckwith II. See Beckwith II, 707So.2d at 568-71. The holding of the Mississippi Supreme Court didnot violate clearly established federal law. To the contrary, thecourt relied primarily on federal case law in its analysis.Therefore, the finding of the Mississippi Supreme Court will notbe disturbed by this Court.
(3) Conclusion: Beckwith's Fifth Amendment Due Process Right to a Speedy Trial
The Mississippi Supreme Court found that Beckwith proved no dueprocess violation which justified overturning the jury's verdict.Beckwith II, 707 So.2d at 570. Under the deference scheme ofAEDPA, this Court will not disturb the ruling of the MississippiState Supreme Court unless its conclusions involve anunreasonable application of clearly established federal law. SeeDavis, 158 F.3d at 812 (citations omitted). The decision of theMississippi Supreme Court does not violate clearly establishedfederal law. Under the deference standard of AEDPA, a findingthat thestate court's holding was in accord with federal law issufficient to deny habeas corpus relief. However, in the interestof justice, this Court independently analyzed the "intentionaldelay" prong of the due process test and found that the State didnot intentionally delay re-indictment of Beckwith. Alternatively,this Court independently analyzed the "prejudice" prong and foundno prejudice to Beckwith. Based on this Court's own analysis andthe findings of the Mississippi Supreme Court, this Court holdsthat Beckwith's Fifth Amendment due process right to a speedytrial was not violated. Beckwith cannot be granted habeas corpusrelief based on alleged violations of his Fifth Amendment dueprocess right to a speedy trial.
D. Alleged Discovery Violations as They Relate to Beckwith's Fifth Amendment Due Process Rights and Fair Trial Rights, and Beckwith' Sixth Amendment Compulsory Process Rights
Beckwith alleges that his Fifth Amendment due process rightsand fair trial rights were infringed by a number of discoveryviolations. The alleged violations concern five witnesses whoeither testified at his 1994 trial, or were prohibited fromtestifying by the trial court. In Beckwith II, the MississippiSupreme Court held that Beckwith's constitutional rights were notviolated by admission or exclusion of the testimony in question.Beckwith II, 707 So.2d at 571-78. Based on the deferencestandards of AEDPA, this Court will not overturn the decisions ofthe Mississippi Supreme Court unless they are found to be soclearly incorrect that reasonable jurists would agree that thedecisions were erroneous. See Nobles, 127 F.3d at 418 (citationomitted). Each of the alleged violations is considered in theorder in which they are raised in Beckwith's Memorandum Brief.
(1) Martha Jean O'Brien, Defense Witness
Background information concerning defense witness Martha JeanO'Brien is relatively detailed. In Beckwith II, the MississippiSupreme Court summarized as succinctly as possible O'Brien's rolein the proceeding, as it relates to Beckwith's Fifth Amendmentdue process and fair trial claim. The Mississippi Supreme Courtstated:
Martha Jean O'Brien was an employee of Joe's Drive-In who was on duty the night of Medgar Evers' murder. Soon after the murder, Ms. O'Brien gave a statement to police that she had seen a man in a white Plymouth Valiant pull into the drive-in on the night of the murder. She described the man as in his early twenties, slender, tall, and with dark curly hair and a full mustache covering his lip, which description did not match that of Byron De La Beckwith. Because there were no discovery rules in place at the time, the defense was unaware of this statement during Beckwith's 1964 trials. In her testimony during the first trial, Ms. O'Brien described the man she saw as being in his early twenties, very good looking and about six feet four inches tall.
Pursuant to discovery requests prior to the 1994 trial, the prosecution provided defense counsel with a copy of Ms. O'Brien's police statement and a transcript of her 1964 testimony. Being unable to locate Ms. O'Brien through all available means, including searches by investigators appointed by the trial court, the defense moved to have her 1964 testimony read to the jury. The prosecution stipulated that Ms. O'Brien could not be found, and her testimony was read to the jury. The trial judge denied defense counsel's request to read Ms. O'Brien's police statement to the jury.
On February 3, 1994, after the defense had rested and on the evening before closing arguments were to begin, defense counsel received a telephone call from Ms. O'Brien. She apparently called Mr. Kitchens because she had seen on television that the trial was almost over. Ms. O'Brien told Mr. Kitchens that she had gone to the District Attorney's office on August 11, 1993, at which time she was given an outstanding subpoena. She said the District Attorney's office never called her back, so she called and spoke to Mr. DeLaughter the night before the trial started. According to Ms. O'Brien, Mr. DeLaughter told her that Mr. Crisco would contact her when she was needed. When she saw on television that the trial was almost over, she decided to call Mr. Kitchens. Apparently, however, her address and telephone number had changed, for she told Mr. Kitchens that the District Attorney's office did not know where she was. She said that on the two occasions when she spoke to prosecutors, she had contacted them, and they did not have her address or telephone number. When Mr. Kitchens asked her if she still went by the name Martha Jean O'Brien, she said she did not and hung up without giving her name, address or telephone number. This conversation was recorded by Mr. Kitchens.
The following morning, defense counsel moved to call Mr. DeLaughter and Mr. Crisco to testify, outside the presence of the jury, regarding these troubling incidents. The trial judge ruled that defense counsel could present this matter after closing arguments. When called to testify after closing arguments, Mr. DeLaughter admitted that he had spoken to Ms. O'Brien on the two occasions which she described to Mr. Kitchens. He testified that when defense counsel informed him that the defense intended to have Ms. O'Brien's prior testimony read to the jury because she could not be found, Mr. DeLaughter went to his office to call the telephone number he had for Ms. O'Brien to see if he could find her. Upon calling the number, he reached a business, American General Finance, and so he returned to the courtroom and stipulated to Ms. O'Brien's transcript testimony being introduced because she could not be found. Mr. DeLaughter testified that the first indication he had that the defense was looking for Ms. O'Brien was when defense counsel sought to introduce her prior testimony, and that prior to that, "[a]bsolutely it was not mentioned."
The defense then called Charlie Crisco, an investigator with the District Attorney's office, who testified that he had had Ms. O'Brien's address and telephone number since August of 1992, which was the last time he spoke with her. The record is unclear whether this address and phone number were current as of the time of trial.
The defense then called defense attorney Merrida Coxwell, who testified that on August 3, 1992, when the trial court heard Beckwith's motion to dismiss the case as a violation of his speedy trial right, Mr. Coxwell argued to the court that the defense was prejudiced by its inability to locate Martha Jean O'Brien. Mr. Coxwell testified that Mr. DeLaughter and District Attorney Peters were both present in the courtroom that day. At the close of this testimony, the defense moved for a mistrial, which motion the trial court took under advisem*nt until after the jury completed its deliberations, at which time the judge overruled the motion. Defense counsel subsequently located Ms. O'Brien, and submitted with Beckwith's post-trial motions an affidavit by her detailing her aforementioned contact with the District Attorney's office.
Beckwith II, 707 So.2d at 571-72.
Beckwith contends that the trial court erred in two respects.First, the trial court erred by refusing to hear the O'Brienmatter before closing arguments were made. Beckwith argues thatif the trial court had heard the matter before closing arguments,the defense could have moved to re-open the case. Second, thetrial court erred in overruling Beckwith's motion for a mistrial.Beckwith further contends that the Mississippi Supreme Courterred by upholding the decisions of the trial court.
The rules of discovery in Mississippi require that "upondefense request, the prosecution [must] disclose the names andaddresses of all material witnesses. The rule extends towitnesses who may not be called at trial, where the witness maybe reasonably expected to be helpful to the defense." Gowdy v.State, 592 So.2d 29, 34 (Miss. 1991) (citing Rule 4.06(a)(6),Miss. Unif.Crim.R.Cir.Ct.Prac. (1979, as amended); United Statesv. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985))(other citation omitted). As this Court interprets the languageof Beckwith II, the Mississippi Supreme Court found that theState was under an obligation to provide the last known addressand telephone number of O'Brien to the defense. Beckwith II,707 So.2d at 572. This Court concurs; under both Brady v.Maryland16 and the Mississippi Uniform Criminal Rules ofCircuit Court Practice which were in effect at the time thatBeckwith II was tried, the prosecution had an obligation toturn over the last known address and telephone number of O'Briento the defense. However, the failure to provide this informationdoes not necessarily rise to the level of a Fifth Amendment dueprocess or fair trial violation.
The Mississippi Supreme Court considered whether the Stateviolated Beckwith's Fifth Amendment due process and fair trialrights by failing to provide O'Brien's last known address andtelephone number. Quoting Brady, 373 U.S. at 87, 83 S.Ct. at1197, the Beckwith II court held that a Fifth Amendmentviolation occurred only if "the evidence is material either toguilt or to punishment, irrespective of the good faith or badfaith of the prosecution." Beckwith II, 707 So.2d at 572(citation omitted). Applying this test to the facts of the casesub judice, the Beckwith II court proceeded to define thephrase "materiality of evidence not disclosed to the defense" asfollows: "The evidence is material only if there is a reasonableprobability that, had the evidence been disclosed to the defense,the result of the proceeding would have been different. A`reasonable probability' is a probability sufficient to undermineconfidence in the outcome." Beckwith II, 707 So.2d at 572(quoting United States v. Bagley, 473 U.S. 667, 681, 105 S.Ct.3375, 3383, 87 L.Ed.2d 481 (1985)) (other citation omitted). Thelegal standards set forth by the Mississippi Supreme Court areadopted by this Court.
Having concluded that the prosecution had an obligation toprovide O'Brien's last known address and telephone number to thedefense, two separate but related questions are analyzed. First,this Court will analyze the decisions of the Mississippi SupremeCourt under the deference standards of AEDPA. In summary, thisCourt will not overturn the decisions of the Mississippi SupremeCourt unless they are found to be so clearly incorrect thatreasonable jurists would agree that the decisions were erroneous.See Nobles, 127 F.3d at 418 (citation omitted). Second,although not required by AEDPA, the Court will independentlyanalyze the issue of whether Beckwith's Fifth Amendment dueprocess and fair trial rights were infringed upon by thediscovery violation.
Applying the legal standard set forth above to the facts ofBeckwith's case, the Mississippi Supreme Court concluded thatBeckwith's Fifth Amendment due process and fair trial rights werenot violated. Beckwith II, 707 So.2d at 573. In so finding, thecourt relied on the fact that the transcript of O'Brien'stestimony from the first trial of Beckwith in 1964 was read tothe jury. Id. at 572. The transcript testimony included adescription of the man alleged to be Beckwith at Joe's Drive-In.Id. The description did not match Beckwith's physicalcharacteristics. Id. Because the jury was exposed to thistestimony, the court found that if O'Brien hadbeen available for live testimony, her testimony would not havebeen "sufficient to undermine confidence in the outcome of thetrial." Id. at 573. Additionally, the Mississippi Supreme Courtsupported its position by emphasizing that if O'Brien had beenavailable to testify live, the prosecution could have impeachedO'Brien on her inaccurate description of the man alleged to beBeckwith. Id. Because the prosecution was unable to impeachO'Brien, her absence may have benefitted the defense. Id. Basedon the deference standards of AEDPA, this Court finds that theholding of the Mississippi Supreme Court in Beckwith II was notso clearly incorrect that reasonable jurists would agree that thedecision was erroneous. Therefore, the finding of the MississippiSupreme Court will not be overturned.
This Court now proceeds with an independent analysis of thealleged Fifth Amendment due process and fair trial claim, as itrelates to defense witness O'Brien. In a police report dated June12, 1963, O'Brien described the man at Joe's Drive-In, who wasalleged to be Beckwith, as a dark complected white male with darkhair and a mustache. See Memorandum Brief in Support ofPetitioner Byron De La Beckwith, VI's Petition for Habeas Corpus,Exhibit "KK," p. 2. O'Brien further described the man as aboutsix feet to six feet two inches in height, slim build, with abody weight of about one hundred and sixty pounds. Id. Thetrial court did not allow the contents of the police report to beread to the jury in Beckwith II. However, the transcript ofO'Brien's testimony from Beckwith's first trial in 1964 was readto the Beckwith II jury. In the portions of the transcript readin Beckwith II, O'Brien described the man at Joe's Drive-In as"very tall" and in his early twenties. (R. at 2855). She furtherdescribed the man as approximately six feet four inches tall. (R.at 2857-58). In the 1964 trial, O'Brien described the height ofthe man alleged to be Beckwith by comparing him to another manwhose height was known to be six feet one inch tall. (R. at2858). She stated that the man alleged to be Beckwith was two tothree inches taller than the known subject of comparison, who wassix feet one inch tall. Id. Finally, O'Brien again describedthe man alleged to be Beckwith as six feet and four inches tall.(R. at 2861).
Under the standards of Brady and Bagley set forth above,the failure of the prosecution to give the last known address ofO'Brien to the defense is a Fifth Amendment due process and fairtrial violation only if there is a reasonable probability thatthe result of the trial would have been different had O'Brientestified live. The obvious value of O'Brien's testimony to thedefense was her errant physical description of the man alleged tobe Beckwith. Her description was at odds with Beckwith's actualheight and age. Beckwith's actual height was about five feeteight inches and he was significantly older than his "earlytwenties" in 1963. The potential value of live testimony byO'Brien is diminished by the fact that the Beckwith II jury wasread O'Brien's transcript from Beckwith's 1964 trial, whichcontained four erroneous descriptions of Beckwith's height andone erroneous description of his age. In fact, in the 1963 policereport that the defense moved to be read to the jury, O'Briendescribed Beckwith's height as "about 6 ft to 6 ft 2 inchestall," a description that more closely matched Beckwith's actualheight than the jury was exposed to via O'Brien's transcripttestimony. See Memorandum Brief in Support of Petitioner ByronDe La Beckwith, VI's Petition for Habeas Corpus, Exhibit "KK," p.2. Therefore, neither the lack of live testimony by O'Brien northe failure of the trial court to allow the police report to beread to the jury constitutes a Fifth Amendment due process orfair trial violation.
The Court finds that the failure of the State to provideO'Brien's last known address and telephone number was not aviolation of Beckwith's Fifth Amendment due process right orBeckwith's right to a fair trial. Failure to provide the locationof O'Brien to the defense did not underminethe confidence in the outcome of Beckwith's trial. Therefore, thetrial court did not err by refusing to hear the matter beforeclosing arguments were made or in overruling Beckwith's motionfor a mistrial. For these reasons, habeas corpus relief cannot begranted based upon the unavailability of defense witness MarthaJean O'Brien.
(2) James Hobby, Defense Witness
In Beckwith II, the Mississippi Supreme Court succinctlysummarized the role of defense witness James Hobby. This Courtincorporates the following summary from Beckwith II.
James Hobby was a defense witness who was prepared to testify that he owned a white Plymouth Valiant matching the description of the car seen at Joe's Drive-In on the night of Evers' murder. According to Mr. Hobby, he parked his car at the drive-in on the night of the murder, and his was the only white Valiant parked at the drive-in. He was prepared to testify also that he heard a gunshot coming from the nearby woods at the time of the murder.
When the defense called Mr. Hobby to testify, the prosecution objected and moved to exclude his testimony on the grounds that defense counsel had not provided Mr. Hobby's name as a witness until mid-way through the trial when the State had rested its case in chief. The trial court adjourned for the day and ordered that the prosecution be allowed to interview the witness.
When the court reconvened the next day, the prosecution, having interviewed Mr. Hobby the previous evening, renewed its objection. The prosecutor stated that Mr. Hobby's name was not on the list of witnesses provided by defense counsel prior to trial, and pointed out that when the State read this list to the jury during voir dire, defense counsel did not point out the omission of Mr. Hobby's name. The prosecutor argued that the State had absolutely no notice until the defense began putting on evidence that Mr. Hobby would be called to testify. The prosecutor pointed out that one of the State's witnesses, Barbara Holder, had worked at the drive-in and knew Mr. Hobby well. [[FN 1] The prosecution had become appraised of this information the previous evening.] Had the prosecution known of Mr. Hobby's identity as a witness and the substance of his testimony, the prosecutor argued, the State would have called Ms. Holder to rebut Mr. Hobby's testimony. As it stood, however, Ms. Holder had been excused after testifying and had returned to Texas.
Defense counsel responded that he had discussed with Mr. DeLaughter the names of all defense witnesses and "I had no reason to hide Mr. Hobby's name." Mr. DeLaughter countered that he had never been furnished with Mr. Hobby's name.
Beckwith II, 707 So.2d at 573; see also (R. at 2833-47).
Based on arguments by counsel, the Mississippi Supreme Courtexplained that it had to "rely on the representations of theattorneys," which were at odds with one another. Beckwith II,707 So.2d at 573; see also (R. at 2843-44). Therefore, thecourt was forced to "fall back upon the strict letter of the law.. . ." Id. The court denied Hobby the opportunity to testifybecause applicable law required both the prosecution and thedefense to provide the names of all witnesses to the opposingparty in writing, and Hobby's name was not so provided to theprosecution. Beckwith II, 707 So.2d at 573; see also (R. at2844).
Beckwith argues that under Box v. State, 437 So.2d 19 (Miss.1983), and Houston v. State, 531 So.2d 598 (Miss. 1988), thetrial court should have allowed the prosecution time toinvestigate Hobby's proffered testimony rather than excluding himas a defense witness. Under the AEDPA deference scheme, thiscourt will not overturn the ruling of the Mississippi SupremeCourt unless the ruling involves "an unreasonable application ofclearly establishedfederal law. . . ." Davis, 158 F.3d at 812 (citing28 U.S.C. § 2254(d)(1)) (other citations omitted) (emphasis added). Basedupon the language of § 2254 and the holding in Davis, thisCourt looks to federal law rather than Mississippi law todetermine whether Beckwith's constitutional rights were violatedby the trial court's bar of Hobby's testimony.
As a preliminary matter, the Court clarifies the legalcategorization of this issue. In Beckwith's Petition, all allegeddiscovery violations are categorized as "Mr. Beckwith's Right toa Fair Trial and Due Process Under the Fifth Amendment. . . ."See Memorandum Brief in Support of Petitioner Byron De LaBeckwith, VI's Petition for Habeas Corpus, p. 44 (emphasisadded). A leading federal case on the issue of witness exclusionis Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d798 (1988). In Taylor, the United States Supreme Court analyzedthe issue of witness exclusion under the Compulsory ProcessClause of the Sixth Amendment. Id. at 402, 108 S.Ct. at 649.Therefore, this Court will consider the witness exclusion issueas it relates to defense witness Hobby under the CompulsoryProcess Clause of the Sixth Amendment.
The Taylor Court held that sanctions other than preclusion ofthe testimony of an undisclosed witness are appropriate in mostcases. Id. at 413, 108 S.Ct. at 655. However, the Courtqualified its statement by finding that lesser sanctions canperpetuate rather than limit prejudice in some instances. Id.Additionally, lesser sanctions, such as granting a continuance,can harm the adversary process. Id. One of the reasons forrequiring the disclosure of witnesses is prevention of fabricatedtestimony. Id. Considering the possibility of fabricatedevidence when witnesses are not timely disclosed, the TaylorCourt stated:
It is . . . reasonable to presume that there is something suspect about a defense witness who is not identified until after the 11th hour has passed. If a pattern of discovery violations is explicable only on the assumption that the violations were designed to conceal a plan to present fabricated testimony, it would be entirely appropriate to exclude the tainted evidence regardless of whether other sanctions would also be merited.
Taylor, 484 U.S. at 414, 108 S.Ct. at 655. If willfulmisconduct is involved on the part of the nondisclosing party,then an appropriate sanction is preclusion of the nondisclosedwitness' testimony. Id. at 417, 108 S.Ct. at 657. Furthermore,if the omission is based on a desire to obtain a tacticaladvantage at trial, then "it would be entirely consistent withthe purpose of the Compulsory Process Clause simply to excludethe witness' testimony." Id. at 415, 108 S.Ct. at 656.
Applying the standards of Taylor to the nondisclosure ofdefense witness Hobby, the Mississippi Supreme Court justifiedexclusion of Hobby's testimony for several reasons. The defensewas aware that Hobby would be used as a witness some time priorto trial. Beckwith II, 707 So.2d at 575. Not only did thedefense fail to produce in writing Hobby's name as a potentialwitness prior to trial, but also the defense did not point outthe omission of his name when the list of defense witnesses wasread to the jury during voir dire. Id. Furthermore, the defensewas aware of the relationship between Barbara Holder and Hobbywhen the State called Holder as a witness. Id. After Holder wasexcused by the court and returned to Texas, and after theprosecution rested its case, the defense finally produced Hobby'sname as a witness. Id. For these reasons, the MississippiSupreme Court concluded that the willful conduct of defensecounsel was motivated by a desire to gain a tactical advantage attrial. Id. The Mississippi Supreme Court held that noconstitutional violation resulted from the trial court's bar ofHobby's testimony. Id. at 576. This Court concurs.
In support of his position, Beckwith's Memorandum Brief states"Mr. Beckwith's counsel were not aware that Ms. Holder knew Mr.Hobby or that she could rebuthis testimony. Mr. Beckwith's counsel were unaware of any allegedconnection between Hobby and Holder, so there could have been nomotivation on their part to obtain a tactical advantage." SeeMemorandum Brief in Support of Petitioner Byron De La Beckwith,VI's Petition for Habeas Corpus, p. 56. This argument is squarelycontradicted by the record. In Beckwith's trial in 1994, counselfor Beckwith was allowed to proffer the testimony of Hobbyoutside the presence of the jury. The proffered testimonyincluded the following statement: "He [Hobby] knew the waitressor car hop who's been referred to, Barbara Holder, but she wasnot there." (R. at 2845). At a minimum, the defense was awarethat Holder's testimony was in conflict with the proposedtestimony of Hobby. The proffered testimony of Hobby providesadditional support for the decision of the Mississippi SupremeCourt.
One additional quote from Taylor bears consideration by thisCourt. "In order to reject petitioner's argument that preclusionis never a permissible sanction for a discovery violation it isneither necessary nor appropriate for us to attempt to draft acomprehensive set of standards to guide the exercise ofdiscretion in every possible case." Taylor, 484 U.S. at 414,108 S.Ct. at 656. The language in Taylor indicates thatpreclusion of a witness based on discovery violations is aflexible decision based on the particular circ*mstances of eachcase. Based on the defense's knowledge of the contents of Hobby'spotential testimony and the failure of the defense to provideHobby's name to the prosecution in a timely manner, this Court isconvinced that preclusion of his testimony was proper.
Beckwith's final argument is that the trial court enforceddiscovery rules in a discriminatory manner. Beckwith supportsthis argument with the fact that defense witness Hobby was notallowed to testify while prosecution witnesses who were thesubjects of alleged discovery violations were allowed to testify.This argument is not well taken. State witness Bowen Johnson wasexcluded from testifying for the same reason that Hobby wasexcluded; his name was not provided to the defense in a timelymanner. Beckwith II, 707 So.2d at 575-76. This fact negatesBeckwith's claim of discriminatory treatment.
The Court finds that exclusion of James Hobby as a defensewitness by the trial court was not a violation of Beckwith'sSixth Amendment compulsory process rights. Therefore, theupholding of the trial court's decision by the MississippiSupreme Court will not be overturned and habeas corpus reliefcannot be granted on this ground.
(3) State Witness Mark Reiley, State Witness Tom Van Riper, State Witness Mary Ann Adams
Mark Reiley, Tom Van Riper and Mary Ann Adams were all allowedto testify as State witnesses in Beckwith's 1994 trial. Thedefense objected to the testimony of all three of these witnessesduring the trial. Beckwith's Petition for Habeas Corpus Reliefcites as error the trial court's admission of their testimony.However, the objections in the Petition rely on no "clearlyestablished federal law," which is required under AEDPA beforethis Court can review the state court rulings. See Davis, 158F.3d at 812 (citing 28 U.S.C. § 2254(d)(1)) (other citationsomitted). Therefore, this Court must determine the authorityunder which the state court evidentiary rulings concerningReiley, Van Riper and Adams may be reviewed.
In a number of cases the Fifth Circuit has considered the roleof federal courts in reviewing state court evidentiary rulings."[E]rrors of state law, including evidentiary errors, are notcognizable in habeas corpus as such." Derden v. McNeel,978 F.2d 1453 (5th Cir. 1992), cert. denied, 508 U.S. 960, 113S.Ct. 2928, 124 L.Ed.2d 679 (1993) (citing Estelle v. McGuire,502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991))(other citation omitted). A constitutional violation arises outof errors in state law only if the error "so infused thetrial with unfairness as to deny due process of law." Derden,978 F.2d at 1458 (citing Lisenba v. California, 314 U.S. 219,228, 62 S.Ct. 280, 286, 86 L.Ed. 166 (1941)) (other citationomitted). Additionally, an erroneous state court evidentiaryruling rises to a constitutional level if it renders thepetitioner's trial fundamentally unfair. Gochicoa v. Johnson,118 F.3d 440, 446 (5th Cir. 1997) (citing Cupit v. Whitley,28 F.3d 532, 536 (5th Cir. 1994), cert. denied, 513 U.S. 1163, 115S.Ct. 1128, 130 L.Ed.2d 1091 (1995)). The Fifth Circuit definesan "unfair trial" as "one that has been `largely robbed ofdignity due a rational process.'" Johnson v. Blackburn,778 F.2d 1044, 1050 (5th Cir. 1985) (quoting Houston v. Estelle,569 F.2d 372, 383 (5th Cir. 1984)) (other citation omitted).
Interpretation of the aforementioned cases imposes a two-phaseobligation on this Court. First, the Court must consider whetherthe admission of the testimony of Reiley, Van Riper and Adams wasa violation of Mississippi state law. If admission of thetestimony was a violation of state law, then the Court mustproceed to phase two of the analysis. The second factor toconsider is whether the effect of the testimony rose to the levelof a due process violation, resulting in a fundamentally unfairtrial. Each of the three witnesses in question is consideredunder this two-phase analysis.
(a) Mark Reiley, State Witness
In Beckwith II, the Mississippi Supreme Court summarized allrelevant background information concerning State witness MarkReiley. This Court adopts the following summary set forth by theBeckwith II court.
During the trial, on Friday, January 28, 1994, the District Attorney's office received a telephone call from Mark Reiley, who was calling from Chicago, Illinois, and who said he had seen news coverage of the Beckwith case on CNN. Mr. Reiley's name was not reflected in the records of either party. He told the prosecutors that while he was guarding Byron De La Beckwith at Angola State Penitentiary in Louisiana in 1979, Beckwith confessed to killing Medgar Evers. [[FN2] Beckwith was convicted in New Orleans in 1973 of knowingly transporting a bomb without a license or permit, and was sentenced in 1975 to five years incarceration in the Louisiana Department of Corrections. His appeal of this conviction was affirmed. State v. de la Beckwith, 344 So.2d 360 (La. 1977). The conviction was later vacated by the Criminal District Court of Orleans Parish, Louisiana on August 3, 1992.] The prosecution immediately related this information to the trial court and defense counsel, and informed defense counsel that Mr. Reiley would be flying into Jackson the next day and would be available for questioning. On Sunday, January 30, District Attorney Peters notified defense counsel that Mr. Reiley had arrived and would be available for questioning the next day. Defense counsel was able to interview Mr. Reiley during lunch on Monday, January 31.
When the State called Mr. Reiley to testify, defense counsel objected on the grounds that the defense had had no opportunity to investigate Mr. Reiley's testimony. Defense counsel argued that more time was needed in order to retrieve records from Angola State Penitentiary and question other guards. The trial judge overruled the objection and allowed Mr. Reiley to testify.
Beckwith II, 707 So.2d at 576.
In Overstreet v. State, 369 So.2d 275, 277 (Miss. 1979), theMississippi Supreme Court analyzed the effect of erroneousadmission of evidence when the evidence in question is merelycumulative in nature. The Overstreet court emphasized that thepurpose of witness disclosure is to minimize the element ofsurprise to the opposing party. Id. If the evidence presentedby the witness in question is merely cumulative to evidencepresented by other sources, then the element of surprise isminimized. Id. Furthermore, admission of evidence is largelywithin the discretion ofthe trial court. Id. (citing Armstrong v. State,214 So.2d 589 (Miss. 1968), cert. denied, 395 U.S. 965, 89 S.Ct. 2109, 23L.Ed.2d 750 (1969)).
Applying the holding in Overstreet to Beckwith's case, theMississippi Supreme Court ruled that because the testimony ofReiley was cumulative to the testimony of other witnesses, anyerror by the trial court was harmless. Beckwith II, 707 So.2dat 576. The court stated "Reiley was by no means the only witnessto testify that Beckwith had bragged about killing Medgar Evers."Id. This Court agrees with the holding of the MississippiSupreme Court that Reiley's testimony was merely cumulative.
The record reflects that four other witnesses testified thatBeckwith made self-incriminating statements about the murder ofEvers. The following quote is from the trial testimony of Statewitness Mary Ann Adams, wherein Adams describes a conversationbetween herself and Beckwith in 1966: "Said he [Beckwith] had notkilled a man, but a damn chicken-stealing dog, and you know whatyou have to do with a dog — after it's tasted blood." (R. at2437-38). Next, State witness Daniel R. Prince testified thatBeckwith bragged about the murder of Evers to him. Princetestified that during the 1986 to 1987 time frame, Beckwith toldhim "I had a job to do and I did it. . . ." (R. at 2449). The"job" referred to the killing of Evers. (R. at 2450). The thirdwitness to testify about self-incriminating statements made byBeckwith was State witness Peggy Morgan. Morgan testified thatBeckwith stated "he killed Medgar Evers, a nigg*r, and . . . ifthis ever got out, that he wasn't scared to kill again." (R. at2520). The fourth and final witness who testified aboutself-incriminating statements made by Beckwith was Delmar Dennis.At a 1965 Ku Klux Klan meeting attended by Dennis, Beckwithstated "[k]illing that nigg*r didn't cause me any more physicalharm than your wives have to have a baby for you." (R. at 2547).
Assuming arguendo that the trial court erred by allowingReiley to testify, the admission of his testimony was cumulativeto the testimony of four other witnesses. Because Reiley'stestimony was cumulative, any error in its admission did not riseto the level of a due process violation. Therefore, the holdingof the Mississippi Supreme Court will not be disturbed. Habeascorpus relief cannot be granted on the basis of admission of thetestimony of Mark Reiley.
(b) Tom Van Riper, State Witness
The Mississippi Supreme Court in Beckwith II accuratelysummarized the role of Van Riper in Beckwith's 1994 trial. ThisCourt adopts the following quote from Beckwith II:
Delmar Dennis, an ex-FBI informant and former member of the Ku Klux Klan, testified for the State regarding an incriminating statement made by Byron De La Beckwith at a Klan meeting in 1965. Mr. Dennis testified that he related this statement to the FBI agent he worked with, although he could not remember at trial which agent it was. On cross-examination, defense counsel established that the statement attributed to Beckwith by Mr. Dennis was not recorded in the FBI files containing information reported by Mr. Dennis. The State then called ex-FBI agent Tom Van Riper to testify that Mr. Dennis had related Beckwith's statement to him. Defense counsel objected to the calling of Van Riper because Van Riper's name as a witness had not been provided to the defense until the first day of trial.
The prosecution apparently did not become aware that Van Riper was the recipient of this information from Mr. Dennis until the day before testimony began when, on his way back from jury selection in Batesville, Mr. DeLaughter read a book about Beckwith written by Reed Massengill. The next day, Mr. DeLaughter provided defense counsel with Van Riper's name and telephone number, together with a photocopy of the passages in the book about which Van Riper would be questioned at trial.
Upon defense counsel's objection to the calling of Van Riper, the trial court called a recess to grant defense counsel's request for an opportunity to question the witness. When the court reconvened, defense counsel renewed his objection to any testimony by Van Riper as improper bolstering and a discovery violation. Defense counsel argued he had no opportunity "in the throes of the trial" to conduct any investigation of Van Riper's possible testimony. The trial court overruled the objection and allowed Van Riper to testify.
Beckwith II, 707 So.2d at 576-77.
Beckwith's claim that the admission of Van Riper's testimonywas a violation of his due process or fair trial rights is flawedfor two reasons. First, counsel for Beckwith did not ask for acontinuance in the trial in order to prepare for the testimony ofVan Riper. Second, Van Riper's testimony was cumulative to thetestimony of four other witnesses; therefore, any error by thetrial court in admitting his testimony was harmless error.
At the time of Beckwith's trial in 1994, Uniform Criminal Ruleof Circuit Court Practice 4.06 was in effect.17 Rule 4.06states that a party who is surprised by evidence which is nottimely disclosed must request either a continuance or a mistrial.Miss.Unif.Crim.R.Cir.Ct.Prac. 4.06 (1979, as amended). Beckwithrequested neither. Therefore, any post-trial objection to VanRiper's testimony is deemed to be waived.
The second reason that Beckwith's constitutional claim arisingout of Van Riper's testimony must fail is because the substanceof Van Riper's testimony was cumulative to the testimony of fourother witnesses. The purpose of Van Riper's testimony was tocorroborate the testimony of State witness Delmar Dennis. Dennistestified to self-incriminating statements made by Beckwith. Asanalyzed above, other witnesses testified as toself-incriminating statements made by Beckwith. See supra,section II.D.(3)(a) of this Opinion and Order. As found by theMississippi Supreme Court, if the admission of Van Riper'stestimony was in error, the cumulative nature of the evidencerenders the error harmless. Beckwith II, 707 So.2d at 577. Forthese reasons, this Court will not overturn the holding of theMississippi Supreme Court and habeas corpus relief cannot begranted on this ground.
(c) Mary Ann Adams, State Witness
With regard to foundation information concerning State witnessMary Ann Adams, this Court adopts the findings of the MississippiSupreme Court in Beckwith II.
Mary Ann Adams, called by the State, testified that in September of 1966, she met Byron De La Beckwith in a restaurant outside Greenwood, Mississippi. She testified that Beckwith was introduced to her as "the man who killed Medgar Evers." Ms. Adams testified that when so introduced, Beckwith stuck out his hand to shake hers and was smiling and nodding. She testified that she told Beckwith he was a murderer and refused to shake his hand. Ms. Adams then testified that Beckwith became angry and told her "he had not killed a man, but a damn chicken-stealing dog, and you know what you have to do with a dog when — after it's tasted blood." This testimony about what Beckwith told Ms. Adams was not included in her recorded statement taken by the prosecution and provided to defense counsel during discovery.
On cross examination, defense counsel questioned Ms. Adams about this alleged statement by Beckwith. She testified that she did not mention this comment when the prosecution took her taped statement on November 26, 1990, but that she told the prosecution of this comment in a second interview some months later. She could not remember whether anyone took her statement during the second interview. Ms. Adams admitted that in her first interview, she stated that she did not remember what Beckwith said to her when she met him.
After cross-examination and outside the presence of the jury, defense counsel moved for a mistrial due to the prosecution's discovery violation in failing to supplement Ms. Adams' statement with this additional information. Assistant District Attorney DeLaughter responded that he had provided defense counsel with the only statement he had taken from Ms. Adams and that, although he had spoken with her several times, he did not keep notes and dates every time someone came to talk to him about the case. The trial court cautioned both sides to timely supplement their discovery disclosures as required by the rules, and overruled the motion for a mistrial.
Beckwith II, 707 So.2d at 577.
This Court must first determine whether the prosecution wasunder a discovery obligation to turn over oral statements madeby witnesses. If Adams' oral statement was discoverable, then theCourt must determine whether failure to disclose the statementwas reversible error. In Moore v. State, the MississippiSupreme Court held that oral statements are discoverable. Moorev. State, 508 So.2d 666, 668 (Miss. 1987) (citing Franklin v.State, 460 So.2d 104, 106 (Miss. 1984)). However, the Moorecourt further held that failure to disclose an oral statement isnot necessarily reversible error. Moore, 508 So.2d at 668. Ifan oral statement is "sufficiently innocuous," it does not riseto the level of reversible error. Id. Under the standards ofMoore, the prosecution was required to divulge oral statementsmade by Adams to the defense. However, as found by theMississippi Supreme Court, the error in failing to divulge Adams'statements to the defense was harmless error for two reasons.Beckwith II, 707 So.2d at 577-78. First, rather than objectingto Adams' testimony during her direct examination, the defensechose to cross-examine her. Id. Dissatisfied with the responseselicited on cross-examination, the defense did not object toAdams' testimony until after cross was complete. Id. at 577,see also, (R. at 2437-39). Second, the cross-examination ofAdams cast a disparaging light on her credibility. Beckwith II,707 So.2d at 578. During cross-examination, Adams admitted thatwhen she made her first recorded statement to the prosecution in1990, she did not remember what Beckwith said to her at therestaurant when they met. Id., see also, (R. at 2442-44).Because Adams was discredited on cross-examination with regard tothe oral statement in question, the statement was "sufficientlyinnocuous" under the standard of Moore. Therefore, failure ofthe prosecution to divulge the statement in a timely manner doesnot rise to the level of reversible error.
The Mississippi Supreme Court upheld the trial court'sallowance of Adams' testimony because the defense waited untilafter cross-examination of Adams to move for mistrial, andbecause the defense was able to discredit Adams' allegedlytainted testimony on cross-examination. Beckwith II, 707 So.2dat 578. For these reasons, if the trial court wrongly admittedAdams' testimony, the error in its admission was harmless.
This Court agrees with the holding of the Mississippi SupremeCourt. The admission of Adams' testimony neither rose to thelevel of a due process violation nor rendered Beckwith's trialfundamentally unfair. Habeas corpus relief cannot be grantedbased on the prosecution's failure to timely divulge Mary AnnAdams' oral statements to the defense.
III. Conclusion
The legal system is challenged with protection of theconstitutional rights of all citizens of this country. Theprotection ofindividual rights must be administered by applying establishedlaw to the facts of each case. Based on application of the law tothe facts of the case sub judice, this Court finds that thelegal process by which Beckwith was convicted and sentenced tolife imprisonment was not a violation of his Fifth or SixthAmendment constitutional rights. Therefore, for all of thereasons analyzed by the Court, the Petition for Habeas CorpusRelief of Byron De La Beckwith is not well taken and should bedenied.
IT IS THEREFORE ORDERED that Byron De La Beckwith's Petitionfor Habeas Corpus Relief [1-1] is hereby denied.
1. On February 18, 2000, the Court delivered that letter tothe Clerk of the Court with the directions that it be filed as awithdrawal of Beckwith's request for an evidentiary hearing andfor authorization to conduct additional discovery.
2. Under Mississippi law, the entry of a nolle prosequiunconditionally dismisses a criminal indictment, but withoutprejudice to the state to seek re-indictment. Beckwith v.State, 707 So.2d 547, 569 (Miss. 1997).
3. A detailed recitation of the facts of the case sub judiceis included in Beckwith II, 707 So.2d at 554-65.
4. The Speedy Trial Clause of the Sixth Amendment to theUnited States Constitution states: "In all criminal prosecutions,the accused shall enjoy the right to a speedy and public trial. .. ."
5. The Due Process Clause of the Fifth Amendment to the UnitedStates Constitution states:
"No person shall . . . be deprived of life, liberty, or property,without due process of the law. . . ."
6. The Sixth Amendment to the United States Constitutionstates in relevant part: "In all criminal prosecutions, theaccused shall enjoy the right . . . to have compulsory processfor obtaining witnesses in his favor. . . ."
7. Whether AEDPA applies hinges upon the date that thepetition for habeas corpus is filed, rather than the date of theunderlying conviction. See Miller v. Johnson, 200 F.3d 274, 280(5th Cir. 2000) (citing Lindh v. Murphy, 521 U.S. 320, 336, 117S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997)). AEDPA is applicable toall federal habeas corpus petitions filed after April 26, 1996.Id. Beckwith's petition for habeas corpus was filed on June 15,1999; therefore, the standards of AEDPA apply to his petition.
8. Although Beckwith's Petition argues for application ofAvalos to his case, counsel for Beckwith admitted in oralargument before the Mississippi Supreme Court that under a SixthAmendment to the United States Constitution speedy trialanalysis, only the time period from Beckwith's second mistrial in1964, to entry of the nolle prosequi in 1969, is considered.See Answer, Exhibit "A," Memorandum of Authorities in Supportof Respondent's Answer, Exhibit "2," Supreme Court Oral Argument,p. 2, lines 23-27.
9. The Sovereignty Commission was legislatively created in1956, by Miss.Code Ann. § 3-1-11. As an agency of the State ofMississippi, it was created ostensibly to "protect thesovereignty of the State of Mississippi, and her sister states"from interference by the federal government. American CivilLiberties Union of Mississippi v. Fordice, 969 F. Supp. 403, 405(S.D.Miss. 1994). However, the understood purpose of theSovereignty Commission was to "maintain racial segregation in theSouth despite orders to the contrary by the United States SupremeCourt." Id. (citations omitted). The Sovereignty Commission wasabolished by act of the Mississippi legislature in 1977.
10. Supporting evidence includes a "Memorandum to all Agents"in which the FBI, in 1963, informed all agents in the region toassist in the Evers investigation in any way possible. SeeMemorandum Brief in Support of Petitioner Byron De La Beckwith,VI's Petition for Habeas Corpus, Exhibit "T."
11. Beckwith supports this argument with his own testimony inBeckwith I (see Memorandum Brief in Support of PetitionerByron De La Beckwith, VI's Petition for Habeas Corpus, Exhibit"K," pp. 55, 71-74), the affidavit testimony of one of his trialattorneys in 1964 (Id. at Exhibit "O"), and his own affidavittestimony (Id. at Exhibit "Q").
12. Supporting evidence includes a newspaper article in theClarion Ledger dated December 18, 1990. See Memorandum Brief inSupport of Petitioner Byron De La Beckwith, VI's Petition forHabeas Corpus, Exhibit "W."
13. For clarification purposes, the Court distinguishesbetween "Barker factors" and "Barker interests." "Barkerfactors" are the four factors that the Court must weigh todetermine whether Beckwith's Sixth Amendment speedy trial rightwas violated. Barker factor four covers prejudice to thedefendant resulting from a trial delay. The "Barker interests"are three sub-elements that must be analyzed under Barkerfactor four.
14. The time period from Beckwith's second mistrial in 1964,to the re-indictment in 1990, was about twenty-six years. Thetime period from dismissal of Beckwith's indictment in 1969 tohis re-indictment in 1990 was about twenty-one years.
15. In a Fifth Circuit case decided prior to Crouch, dueprocess violations resulting from pre-indictment delay wereanalyzed in a different manner. See United States v. Townley,665 F.2d 579 (5th Cir. 1982), cert. denied, 456 U.S. 1010, 102S.Ct. 2305, 73 L.Ed.2d 1307 (1982). In Townley, the court heldthat a defendant must first prove prejudice resulting from apre-indictment delay. Id. at 581-82 (citation omitted). Afterthis threshold requirement is met, the court balances theprejudice to the defendant against the government's need for aninvestigative delay. Id. at 582 (citation omitted). UnderTownley, Beckwith's due process claim could possibly surviveabsent a showing of intentional delay on the part of the State.However, Crouch specifically rejected the Townley balancingtest, holding that intentional delay by the government is anessential element for a due process claim arising out ofpre-indictment delay. Crouch, 84 F.3d at 1514. Therefore, theTownley balancing test does not apply to Beckwith's due processclaim.
16. Upon request by the defendant, the prosecution mustprovide evidence favorable to the defense. Brady v. Maryland,373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963).Respondents do not dispute the fact that the defense made a Rule4.06 discovery request, which covers exculpatory evidence.
17. The provisions of Rule 4.06 are now contained inMississippi Uniform Circuit and County Court Practice Rule 9.04.
