POHNPEI STATE SUPREME COURT
TRIAL DIVISION
Cite as Pohnpei v. Weilbacher,
5 FSM Intrm. 431 (Pon. S. Ct. Tr. 1992)

[5 FSM Intrm. 431]

POHNPEI STATE,
Plaintiff,

v.

CURDIS WEILBACHER
and JERRY MALAKAI,
Defendants.

PKD NO. 384-91

OPINION
 
Edwel H. Santos
Chief Justice
Pohnpei State Supreme Court
Entered:  December 4, 1992

APPEARANCES:
For the Prosecution:     Dickson H. Santos
                                        Trial Counselor
                                        State Attorney General's Office                                        
                                        Pohnpei State
                                        Kolonia, Pohnpei  FM 96941

For the Defendant:        Panda Santos
(Weilbacher)                  Trial Counselor
                                        FSM Public Defender's Office                                        
                                        Kolonia, Pohnpei  FM 96941

For the Defendant:        Shirley Paiz, Esq.
(Malakai)                        FSM Public Defender's Office
                                        Kolonia, Pohnpei  FM 96941

*    *    *    *

HEADNOTES
Constitutional Law - Pohnpei - Interpretation
    In considering an issue of constitutional interpretation of an accused's right to a speedy trial in the light of Pohnpei's experience, manner and usage, and the concept of justice of the peoples of Pohnpei, it is helpful to review the application and the development of the constitutional right to a speedy trial in other parts of the world.  Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 435 (Pon. S. Ct. Tr. 1992).

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Custom and Tradition - Pohnpei
    The Pohnpei court system has to be extra cautious in applying the foreignly developed concepts of criminal justice into its own, so that in adopting or applying such concepts it does so without doing injustice to Pohnpeian culture and traditional values.  Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 449 (Pon. S. Ct. Tr. 1992).

Constitutional Law - Pohnpei - Interpretation
    Differences in procedure, history, customs and practice do not require similar construction and application of the rights to a speedy trial in Pohnpei as the clause is construed and applied in other jurisdictions.  Pohnpei v. Weilbacher, 5 FSM Intrm. 449-50 (Pon. S. Ct. Tr. 1992).

Criminal Law and Procedure - Speedy Trial; Custom and Tradition - Pohnpei
     The Pohnpeian customary practice of quickly resolving conflict resulting from the commission of an act is closely related to, if not the counterpart of the western concept of speedy trial.  Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 450 (Pon. S. Ct. Tr. 1992).

Criminal Law and Procedure - Speedy Trial
    Under the Pohnpei Constitution an accused's right to a speedy trial is not violated if the delay was necessary to afford the accused the opportunity (if he chooses to exercise the customary practice) of pacifying hostilities arising from the criminal conduct between the defendant and his victims; or if the delay was necessary for the prosecutor to prepare for trial, given the complexity and other circumstances of the case; or if the delay was the result of certain excusable neglect by any agency involved in the criminal process.  It is a violation of an accused's right to a speedy trial if the delay was employed by the prosecution to subject the accused to undue oppression.  Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 450-51 (Pon. S. Ct. Tr. 1992).

Criminal Law and Procedure - Speedy Trial
    The right to a speedy public and impartial trial attaches either when an information or complaint has been filed with the court and service of that information or complaint has been effected upon the one named as the accused; or when an accused has been arrested by means of an arrest warrant or other process issued by a judicial officer.  "Other process" includes summons, writ, warrant, mandate or other process issuing from or by authority of the court to have the defendant named therein appear before it at the appointed time.  It does not refer to warrantless arrest.  Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 451-53 (Pon. S. Ct. Tr. 1992).

Criminal Law and Procedure - Speedy Trial; Statute of Limitations
     The Statute of Limitations begins to run from the commission of an offense, or when the crime is complete.  Once prosecution has been commenced the statute of limitations period is no longer available to the prosecution who must then face the task of bringing the defendants to a prompt trial.Pohnpei v. Weilbacher, 5 FSM Intrm. 454-55 (Pon. S. Ct. Tr. 1992).

Criminal Law and Procedure - Speedy Trial
    A delay in bringing the trial caused by a "subsisting agreement" between

[5 FSM Intrm. 433]

the government and the Public Defender's Office that was not clear as to how service of criminal process was to be effected on defendants was excusable neglect and thus not a violation of the right to a speedy trial.  Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 455 (Pon. S. Ct. Tr. 1992).

Criminal Law and Procedure - Speedy Trial
    The Pohnpeian concept of justice and Pon. Crim. R. 48 both allow the Court to dismiss a criminal case for delay even when the defendant's constitutional right to a speedy trial has not been violated.Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 456 (Pon. S. Ct. Tr. 1992).

*    *    *    *

COURT'S OPINION
EDWEL H. SANTOS, Chief Justice:
    Following the entry by this court of its ruling dated May 12, 1992, denying the defendants' joint motion orally presented to the court on the arraignment date, April 28, 1992, to dismiss the charge of disturbing the peace against them for alleged violation of their constitutional right to a speedy trial, the defendants on May 26, 1992, filed another motion entitled "Motion for Reconsideration of Court's Denial of Defendants' Motion for Dismissal."  They styled the ground of their motion as follows:

    (1)  The Court's ruling addressed issues not raised by defense counsel at the hearing on the oral motion for dismissal.

     a)  The Court analysis was based on the issue:
    "Whether the particular delay between 9/15/91 and 4/28/92 in bringing defendants to trial was unreasonable or prejudicial to their defenses, thus warranting a dismissal of the charges against them."

     b)  The issue raised by the defense in Court was:
    "Whether or not defendants' constitutional right to a speedy trial was violated by the the (sic) lengthy delay between 9/15/91 and 4/28/92, thereby warranting a dismissal of the complaint."

    While the defendants' motion for reconsideration appears to be one of semantic1, I feel justice will be served if they are afforded the benefit of

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doubt.

I.  Motion for Reconsideration
    A motion for reconsideration, if granted, reopens the matter anew.  Thus, in order for the court to reconsider its May 12, 1992, order, the court has to set aside that order, to reopen the matter anew, take additional evidence, and if the additional evidence so warrant, make new findings and conclusions.

    Accordingly, the court's order of May 12, 1992, denying the defendant's oral motion to dismiss for alleged violation of their speedy trial right hereby set aside and vacated nunc pro tunc.

    The parties therefore were invited to file briefs, which they did, and oral arguments were heard on June 29, 1992 on the issue of

    "Whether or not the defendants' constitutional right to a speedy trial was violated by the lengthy delay between September 15, 1991 and April 28, 1992, thereby warranting a dismissal of the complaint."

    For the reasons that follow, I conclude that the delay complained of by the defendants did not violate their right to speedy trial within the meaning of article IV, section 9(2) of the Constitution of Pohnpei.

II.  Facts
    Before going further, a brief glance at the facts of the matter is in order.

    The complaint states that on September 15, 1991, at Ohmine Kolonia, the defendants were involved in a fight outside of Isamu Nakasone's store.  The accused were then arrested, placed in custody and were released the next day without undergoing the process of bail.  On September 17, 1991, a formal complaint was filed charging them of the offense of disturbing the peace in violation of Section 6-9 of the Pohnpei Criminal Code.  Summons was forthwith issued returnable on October 2, 1991, at 10 o'clock for arraignment.  The initial summons was not served as nothing is shown in the record on October 2, 1991, return date.  A cross mark was then made over the October 2, 1991, return date of the summons and a different date, October 10, was handwritten in lieu thereof. The record again shows nothing happened on October 10, 1991.  Once again the October 10, 1991 return date was crossed out, initialed by a clerk of this court a new date, 31 March 1992, was inserted in its place.  Nothing appears in the court record to show what happened, if anything, one the 31 March 1992, return date.  Apparently, the summons was never ever get to be served on the defendants, thus necessitating the clerk of make the changes on the return date of the summons.

    Another summons2  was finally issued by the Clerk's Office returnable on April 28, 1992 at 9:30 a.m. for arraignment.  This particular summons was
 
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subsequently served upon the defendants on March 12, 1992 as reflected in the certificate of return on file.  On April 28, 1992, the defendants appeared in court with counsel, and in an oral motion jointly presented, the defendants moved that the charge be dismissed for delay in bringing them to trial, alleging that their right to a speedy trial under the Pohnpeian and the FSM Constitutions were being deprived. The delay in service experienced in this case seems to suggest an attitude of want of prosecution on the part of the Government as will be discussed later.

III.  Analysis
    "[The accused] shall have the right to a speedy trial, public, and impartial trial." Pon. Const. art. IV, 9(2).

    The length of delay from the date of arrest, September 15, 1991, to the arraignment date, April 29, 1992, was approximately 226 days, or seven and one-half months.

    The issue presented in this case however is one of first impression.  It accordingly requires the court to determine the meaning, scope and application of the right to a speedy trial clause of article IV, section 9(2) of the Constitution of Pohnpei and how they relate to the circumstances of this case.

    It is highly unfortunate that the record of the Pohnpei Constitutional Convention does not provide a clear-cut explanation of what the clause "the accused shall have the right to a speedy, public and impartial trial" entails.  Thus I am obliged to consider the issue in the light of Pohnpei's experience, manner and usage, and the concept of justice of the peoples of Pohnpei.  Pon. Const. art. X, 11.

    In undertaking the task called for under the circumstances, I find it helpful to undertake a review exercise to refresh the mind of the court, as well as the minds of all the parties concern about the history, the application and the development of the "constitutional right to a speedy trial" in other parts of the world.

    1.  Speedy Trial Right - United States Experience
    The cases that follow are selected and cited to because they are available in our library.

    a.  Beavers v. Haubert, 198 U.S. 77, 25 S. Ct. 573, 49 L. Ed. 950 (1905).  A number of issues were raised in this case, among which was the issue of speedy trial due in part to the removal of the accused from one federal district to another for trial.  The delay involved in the process was from July 15, 1903 to June 13, 1904, or a total of approximately 11 months.  The Court said, "Constitutional rights of the accused to a speedy trial of the indictments pending against him in a Federal circuit court are not violated by the prosecution, with the consent of that court, of proceedings to remove the accused to another Federal district for trial of an indictment there found

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against him."  It is noteworthy to learn how Justice McKenna explained the relationship of the time of trial and the place of trial in the case as he said,

     Undoubtedly a defendant is entitled to a speedy trial and by a jury of the district where it is alleged the offense was committed. This is the injunction of the Constitution, but suppose he is charged with more than one crime, to which does the right attach? He may be guilty of none of them, he may be guilty of all.  He cannot be tried for all at the same time, and his right must be considered with regard to the practical administration of justice.  To what offense does the right of defendant attach? To that which was first charged or to that which was first committed? Or may the degree of the crimes be considered? Appellant seems to contend that the right attaches and becomes fixed to the first accusation, and whatever be the demands of public justice, they must wait.  We do not think the right is so unqualified and absolute.  If it is of that character, it determines the order of trial of indictments in the same court. . . . It must be remembered that the right is a constitutional one, and, if it has any application to the order of trials of different indictments, it must relate to the time of trial, not to the place of trial. . . . . The right of a speedy trial is necessarily relative.  It is consistent with delays and depends upon circumstances .  It secures rights to a defendant.  It does not preclude the rights of public justice.  It cannot be claimed for one offense and prevent arrest for other offenses. . .

Id. at 86-87, 25 S. Ct. at 575-76, 49 L. Ed. at 954.

    b.  United States v. Ewell, 383 U.S. 116, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966), a case where a delay of 19 months was experienced.  In a 7-2 majority, Mr. Justice White stated the majority opinion of the Court saying,

     We cannot agree that the passage of 19 months between the original arrest and the hearings on the later indictments itself demonstrates a violation of the Sixth Amendment's guarantee of a speedy trial .  This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.  However, in large measure because of the many procedural safeguards provided an accused, the

[5 FSM Intrm. 437]

ordinary procedures for criminal prosecution are designed to move at a deliberate pace.  A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself.  Therefore, this Court has consistently been of the view that "The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances .  It secures right to a defendant.  It does not preclude the rights of public justice." "Whether delay in completing a prosecution . . . amounts to an unconstitutional deprivation of rights depends upon the circumstances. . . .  The delay must not be purposeful or oppressive." "[T]he essential ingredient is orderly expedition and not mere speed."

Id. at 120, 86 S. Ct. at 776, 15 L. Ed. 2d at 630-31 (citations omitted).

    c.  Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). The United States Supreme Court in this case held the Sixth Amendment right to a speedy trial as a bar to North Carolina's "nolle prosequi with leave" procedure, which can be entered over a defendant's objection and without stated justification and which permits the reinstitution of a prosecution without further order.  Under the North Carolina procedure the prosecution of a criminal charge could be delayed indefinitely, thus the U.S. Supreme Court emphasized:

the pendency of the indictment may subject [the accused] to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations, and participation in unpopular causes.  By indefinitely prolonging this oppression, as well as the "anxiety and concern accompanying public accusation," the criminal procedure condoned in this case by the Supreme Court of North Carolina clearly denies the petitioner the right to a speedy trial which we hold is guaranteed him by the Sixth Amendment of the Constitution of the United States.

Id. at 222, 87 S. Ct. at 993, 18 L. Ed. 2d at 7.  Chief Justice Warren, in delivering the opinion of the Court gave an exhaustive account of the history and development of the right to a speedy trial under the Constitution of United States as he said,

     We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the      

[5 FSM Intrm. 438]

Sixth Amendment.  That right has its roots at the very foundation of our English law heritage.  Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, "We will sell to no man, we will not deny or defer to any man either justice or right," but evidence of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon (1166).  By the late thirteenth century, justices, armed with commissions of gaol delivery and/or oyer and terminer were visiting the countryside three times a year.  These justices, Sir Edward Coke wrote in Part II of his Institutes, "have not suffered the prisoner to be long detained, but at their next coming have given the prisoner full and speedy justice, . . . without detaining him long in prison." To Coke, prolonged detention without trial would have been contrary to the law and custom of England; but he also believed that the delay in trial, by itself, would be an improper denial of justice.  In his explication of Chapter 29 of the Magna Carta, he wrote that the words "We will sell to no man, we will not deny or defer to any man either justice or right" had the following effect:

     "And therefore, every subject of this realm, for injury done to him in bonis terris, vel persona, by any other subject, be he ecclesiasticall, or temporal, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him freely without sale, fully without any denial, and speedily without delay."

     Coke's Institutes were read in American Colonies by virtually every student of the law.  Indeed, Thomas Jefferson wrote that at the time he studied law (1762-1767), "Coke Lyttleton was the universal elementary book of law students." and to John  Rutledge of South Carolina, the Institutes seemed "to be almost the foundation of our law." To Coke, in turn, Magna Carta was one of fundamental bases of English liberty. Thus, it is not surprising that when George Mason drafted the first of the colonial bills of rights, he set forth a principle of Magna Carta, using phraseology similar to that of Coke's explication: "[I]n all capital or criminal prosecutions," the Virginia Declaration of Rights of 1776 provided, "a man hath a right . . . to a speedy trial . . . ."

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That this right was considered fundamental at this early period in our history is evidenced by its guarantee in the constitutions of several of the Sates of the new nation, as well as by its prominent position in the Sixth Amendment.  Today, each of the 50 States guarantees the right to a speedy trial to its citizens.

     The history of the right to a speedy trial and its reception in our country clearly establish that it is one of the most basic rights preserved by our Constitution.

Id. at 223-26, 87 S. Ct. at 993-95, 18 L. Ed. 2d at 8-9 (footnotes omitted).

    d.  Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969).  This case involves the nature and extent of the obligation imposed upon a State by the Sixth Amendment guarantee, when the person under the state criminal charge is serving a prison sentence imposed by another jurisdiction.  Smith, the petitioner in this case and who was serving in federal prison, petitioned Judge Hooey, Criminal District Court of Harris County, Texas for six years to obtain a speedy trial on a state indictment, or that the state charge be dismissed.  The Texas Supreme Court refused mandamus, and on certiorari, the United States Supreme Court held that the State of Texas had a constitutional duty, upon request of federal prisoner that he be brought to trial on state charge, to make a diligent, good-faith effort to bring him before state court for trial.  Mr. Justice Black concurred in the opinion and judgment of the Court, but he would make it absolutely clear to Texas State Court that so far as the federal constitutional question is concerned its [Texas State Court's] judgment is set aside only for the purpose of giving the petitioner a trial, and that "if a trial is given the case should not be dismissed."  Id. at 383, 89 S. Ct. at 580, 21 L. Ed. 2d at 614.

    Mr. Justice Harlan in a separate opinion expressed the belief that Texas had not automatically forfeited the right to try Smith.  "If the State still desires to bring him to trial, it should do so forthwith."  Id. at 384, 89 S. Ct. at 580, 21 L. Ed. 2d at 614-15.
 
    e.  Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970).  In this case the court reversed the armed robbery conviction of a Florida defendant who made repeated but unsuccessful efforts to eight years of federal incarceration to have the State of Florida try him on armed robbery charges that had been brought against him.  The Chief Justice, writing for the majority, observed:

     The right to a speedy trial is not a theoretical or abstract right but one rooted in hard reality on the need to have charges promptly exposed.  If the case for the prosecution calls on the accused to meet

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charges rather than rest on the infirmities of the prosecution's case, as is the defendant's right, the time to meet them is when the case is fresh.  Stale claims have never been favored by the law, and far less so in criminal cases.  Although a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial.  This is brought sharply into focus when, as here, the accused presses for an early confrontation with his accusers and with the State.  Crowded dockets, the lack of judges or lawyers, and other factors no doubt make some delays inevitable.  Here, however, no valid reason for the delay existed; it was exclusively for the convenience of the State.  On this record the delay with its consequent prejudice is intolerable as a matter of fact and impermissible as a matter of law.

 Id. at 37-38, 90 S. Ct. at 1568-69, 26 L. Ed. 2d at 32 (footnotes omitted).

    Mr. Justice Brennan believed that not enough attention was given to defining just what the right to speedy trial means.  Accordingly, he suggested that consideration begin with a study of two groups of issues -- those concerned with when the right attaches and those concerned with the criteria by which to judge constitutionality of delays to which the right attaches.  Justice Brennan went on and said,

     The Speedy Trial Clause protects societal interests, as well as those of the accused.  The public is concerned with the effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it.  Just as delay may impair the ability of the accused to defend himself, so it may reduce the capacity of the government to prove its case.  Moreover, while awaiting trial, an accused who is at large may become a fugitive from justice or commit other criminal  acts.  And the greater the lapse of time between commission of an offense and the conviction of the offender, the less the deterrent value of his conviction.

Id. at 42, 90 S. Ct. 1570-71, 26 L. Ed. 2d 34-35 (citation omitted) (Brennan, J., concurring).

    In addition to other lessons learned from this case, we are told that even up to the 1970's the meaning of the speedy trial right of the United States Constitution was still "not clear."

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     f.  United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971).

     The argument that the Sixth Amendment's speedy trial guarantee applies to delays in bringing criminal charges, which had never significantly impressed federal court of appeals, found no favor with majority of the Supreme Court, as it reversed a federal district court decision dismissing a fraud indictment for undue pre-indictment delay. Mr. Justice White, writing for four of the seven justices then sitting, found no Sixth Amendment safeguard against "the mere possibility that preindictment delays will prejudice a criminal defendant; statutes of limitation already assure this protection.  "Invocation of the speedy trial provision . . . need not await indictment, information, or other formal charge," Mr. Justice White said, "but until the time of arrest, the defendant suffers none of the evils sought to be avoided by this right."

The Criminal Law Revolution and Its Aftermath (1960-1974), at 129-30 (BNA 1975).

    "Mr. Justice White emphasizes in Marion the purposes of the Sixth Amendment's speedy trial provision as "an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself."  Marion, 404 U.S. at 320, 925 S. Ct. at 463, 30 L. Ed. 2d at 478 (quoting United States v. Ewell).  Justice White observed that,

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

Id.

    Mr. Justice White thus clarified the time within which the Sixth Amendment's speedy trial right begins to toll as he said, "So viewed, it is readily understandable that it is either a formal indictment

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or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment."

The Criminal Law Revolution and Its Aftermath at 130.  Or putting it in another context,

The right to a speedy trial under the Sixth Amendment to the United States Constitution begins to run with the arrest or the formal charge, whichever comes first.  That is, if the defendant is arrested and then formally charged, the right to be put to trial promptly begins to run with the arrest.  On the other hand, if the person is formally charged and subsequently arrested, the time begins to run with the filing of the charge.

Singer & Hartman, Constitutional Criminal Procedure Handbook, Speedy Trial, 509 (1986).

    g.  Baker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).

     For the first time, the U.S. Supreme Court squarely faced the question of just when a defendant has been denied his right to a speedy trial.  It achieved unanimity in its conclusion that inflexible rule will not do.  To set an inflexible time limit would be to indulge in judicial legislation.  And the "demand waiver" rule, which presumes that a defendant does not assert his speedy trial right until he actually demands it, is inconsistent with the presumption against waiver of rights.

     "Rather," Mr. Justice Powell wrote for the Court, "a defendant's claim that he has been denied this right must be determined by a balancing test, in which four factors can be isolated: length of delay, reason for delay, the defendant's assertion of the right of failure to assert it, and prejudice caused by the delay."

     Applying this balancing test to the case before it, the Court concluded that a post-indictment delay of more than four years, although unjustified, did not prejudice a defendant who did not demand a speedy trial until three years after he was indicted, and who probably did not want to be tried until final disposition of his separately tried codefendant's case, which dragged through five trials.

     "The speedy trial right `is generally different' from any other constitutional right," Mr. Justice

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Powell observed.  "Society's interest in providing an accused with a speedy trial exists independently of, and frequently in opposition to, the defendant's own interests.  Delay may well work to the defendant's advantage.  Perhaps most important, the speedy trial is more vague than other procedural rights.  It also involves an `unsatisfactorily severe' remedy -- outright dismissal of the prosecution."

     Absolute time limits and the "demand waiver" rule may well be due to the right's `slippery quality," Mr.  Powell noted.  "But, while the states are free to set reasonable fixed-time standards, the Supreme Court's function is not to prescribe procedures for the states to follow unless it is constitutionally necessary.  And there is no constitutional basis for quantifying this right `into specific days or months.' Furthermore, the `demand-waiver rule' -- employed by the U.S. Court of Appeals for the Sixth Circuit in its refusal to consider all unchallenged pretrial delays -- infringes on the right to `every reasonable presumption against waiver.' It is not necessarily true that delay benefits the defendant; hence the need for a balancing test."

      Each of the four factors involved in this balancing test must be weighed in light of the nature of the particular case, Mr. Justice Powell cautioned, and each factor itself involves several considerations.  A longer delay must be permitted in a complex case than in a simple one.  The weight to be given to the Government's reason for delay will depend upon what that reason is.  If delay is due to a Government effort to impede the defense, then, of course it will weigh heavily against the Government.  If the reason is neutral, such as crowed courts, it will still go against the Government, but less heavily.  A valid reason -- such as a missing prosecution witness -- would "justify appropriate delay."

     "The defendants claim of prejudice will be considered in light of his pretrial incarceration, if any; the anxiety or concern that he suffers; and most serious, impairment of his defense occasioned by the delay. The interaction of these disadvantages must also be considered.  The defendant's demand for a prompt trial will always weigh heavily in his favor, while a failure to assert the right will make it difficult for him to prove that he was denied it.

The Criminal Law Revolution and Its Aftermath, at 129.

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   h.  Strunk v. United States, 412 U.S. 434, 83 S. Ct. 2260, 37 L. Ed. 2d 56 (1972).

     In this case the U.S. Supreme Court reversed a Seventh Circuit decision that denied a federal defendant the "Harsh remedy" of dismissal.  On an explicit finding that his Sixth Amendment right had been denied, the Seventh Circuit simply reassessed the sentence and reduced it by the number of days of improper pretrial delay found attributable to the Government.

     In light of the policies which underlie the right to a speedy trial, dismissal must remain . . . `the only possible remedy,' the Chief Justice emphasized.  This prisoner did not testify at this trial, and offered no defense witnesses.  However, as Barker points out, one of the principal considerations underlying the Sixth Amendment right is the need to hold a trial before defense witnesses, as well as prosecution witnesses, disappear.  In this case the Court did not focus on the way in which pretrial delay can sabotage a defense, but concentrated instead on the suffering inherent in pretrial delay.

The Criminal Law Revolution and Its Aftermath at 146.

    i.  United States v. MacDonald, 456 U.S. 1, 102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982).  The Army advised the respondent on April 6, 1970, that he was a suspect for the murder of his pregnant wife and his two daughters allegedly committed on February 17, 1970.   On May 1, 1970 the Military formally charged the respondent with three murders.  On October 23, 1970, the Commanding General dismissed the military charges, and on December 5, 1970, the Army granted respondent's request for an honorable discharge based on hardship.  He was later, in January 1975, indicted, and tried in Federal District Court.  He moved to dismiss the indictment, in part on the grounds that the delay in bringing him to trial violated his Sixth Amendment right to a speedy trial.  The District Court denied the motion, and the Court of Appeals reversed.

    The U.S. Supreme Court was called upon to determine whether the time between the dismissal of military charges and a subsequent indictment on civilian criminal charges should be considered in determining whether the delay in bringing respondent to trial for the murder of wife and two children violated his rights under the Speedy Trial Clause of the Sixth Amendment.  The court thus held that "time between dismissal of military charges and a subsequent indictment on civilian criminal charges should not be considered in determining whether the delay in bringing respondent to trial violated his

[5 FSM Intrm. 445]

right to a speedy trial under the Sixth Amendment."  Writing for the Court, Chief Justice Burger said,

The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.

     Once charges are dismissed, the speedy trial guarantee is no longer applicable.  At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. This is true whether or not charges have been filed and then dismissed. . . . But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending.  After charges against him have been dismissed, "a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer." Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation.
 
Id. at 8-9, 92 S. Ct. at 1501-02, 71 L. Ed. 2d at 704 (quoting United States v. Marion, 404 U.S. at 321, 92 S. Ct. at 463, 30 L. Ed. 2d at 479) (alteration in original).

    The case made it clear that it is not the arrest itself which activates the Sixth Amendment protections, but rather the criminal charges arising out of the arrest.

    j.  United States v. Carlson, 697 F.2d 231 (8th Cir. 1983).  The defendant in this case was convicted in the U.S. District Court for the District of Minnesota of mail fraud, and he appealed.  The Court of Appeals held that among others that 18-month delay between arrest by the state officials and indictment on federal mail fraud charges violated neither federal Speedy Trial Act nor Sixth Amendment and the court's refusal to dismiss indictment for want of prosecution did not constitute abuse of discretion.

    A lot has been learned from the cases cited above.  We learn that the speedy trial provisions of the U.S. Constitution affords one accused of a crime certain protections:

[5 FSM Intrm. 446]

     (1)  it protects an accused against lengthy pre-trial imprisonment where the accused is unable to make bail, or pre-trial restriction of movement when bail is available.

     (2) it serves to minimize the anxiety and attendant evils which are invariably visited upon one under public accusation but not tried,

     (3)  it insures that the ability of an accused person to answer the charge will not be impaired on account of lost witnesses and faded memories due to the passage of time.

     We also learn that the arrest itself does not activate Sixth Amendment protection, but rather the criminal charges which arise out of the arrest.  The knowledge of the history and development of the Speedy Trial Clause of the U.S. Constitution as reflected in the cases briefed above is important as a tool to assist us in determining how the right is further developed in our jurisdiction, given the circumstances and the perceptions of the people of our developing island nation.

    2.  Experience Learned From Trust Territory Administration
    a.  Figir v. Trust Territory, 3 TTR 127 (Yap 1966).  In this case the counsel for the accused consented to the postponement of his trial and later moved to dismiss the case alleging the accused's right to speedy trial was denied.  The court held, "it is not fair for an accused to consent, either personally or through counsel, to such a postponement and then use that as a ground for avoiding trial. By such consent, he waives any objection he might otherwise have to the delay as an interference with his right to speedy trial."  Id. at 132.

    b.  Trust Territory v. Ogo, 3 TTR 287 (Mar. 1967).  This case presented the situation of lack of prosecution in violation of Section 4 (relating to right to speedy trial) of the Trust Territory Code (1966 ed.).  The delays in that case were due in part to absences of the Public Defender, District Attorney and an essential witness from the Trust Territory.  The court, referring to Section 4923 of the Code, stated that the court had discretion to dismiss an information, complaint or citation "if there is unnecessary delay in bringing the accused to trial."  The court went on and said, "Under this section it is the burden of the prosecution to take the necessary steps to bring a criminal matter to trial."  Id. at 289.  The court then enunciated the rule laid down in Hanrahan v. United States, 348 F.2d 363 (D.C. Cir. 1965), reaffirmed in United States v. Hanrahan, 255 F. Supp. 957 (D.D.C. 1966), stating,

[5 FSM Intrm. 447]

     if . . . the court should find that the prosecution was conducted with such disregard of the appellant's interests that it can be said that the delay resulted from deliberate, or at least negligent, actions on the part of the prosecutor and the prosecutor fails to show `that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay,' then appellant's Sixth Amendment rights have been denied and the convictions must be vacated and the indictments dismissed.

Ogo, 3 TTR at 289 (quoting United States v. Hanrahan, 255 F. Supp. at 968-69).

    The Hanrahan court however stated that if the court should find that all the delay attributable to the prosecutor was necessary for fair and just prosecution of the charge of mail fraud then the conviction will stand.  United States v. Hanrahan, 255 F. Supp. at 968-69.

    c.  Trust Territory v. Waayan, 7 TTR 560 (App. 1977).  In this case the court considered the issues of effective assistance of counsel and the right to speedy trial after a thirty-three months delay.  Two defendants were charged with murder in the first degree and the Prosecutor advised the Public Defender's Office in Yap of a potential conflict of interest between the  two defendants.  Neither Public Defender's Office, nor the Prosecutor notified the Court of the conflict of interest between the two defendants, thus the court was not able to appoint another counsel to represent one of the defendants at his trial until eight days prior to the date of trial.

    In determining the issue of "right to a speedy trial" as affecting the defendant-appellant, the Wayaan court adopted the test enunciated in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), stating in essence:  In determining whether the right to a speedy trial has been violated, the court must consider the length of delay, reason for the delay, the defendant's assertion, if any, of his right to a speedy trial, and the prejudice, if any, to the defendant as the result of the delay.  Waayan, at 564.

    d.  Trust Territory v. Este, 7 TTR 568 (App. 1977).  This is a case brought on appeal where the trial of the appellant was not held until seventeen months after arrest, and on appeal the appellant raised the issue of his right to a speedy trial. The appellate court held that where the trial was not had until seventeen months after arrest, the defendant had not asserted his right to speedy trial, the prosecution had not attempted to delay trial and no prejudice to defendant was shown, right to speedy trial was not violated.  Recognizing the circumstances of the Trust Territory, the Court
stated,

In the Trust Territory, the right to speedy trial          

[5 FSM Intrm. 448]

is guaranteed in 1 TTC Sec.4 4.  There is no statute which prescribes exact times by which misdemeanor or felony cases are to be heard. With no such statute, the nature of the right to a speedy trial makes it impossible to pinpoint a precise time in the process when the right must be asserted or waived.

     The lesson learned from Baker v. Wingo, is that each case must be analyzed and the four factors mentioned above be considered in the light of the case before the court.

Este, 7 TTR at 570.

    Taking into account of the realities of life in, and the circumstances of, the Trust Territory, the Court then qualified the fact of "no permanent justice assigned to certain districts" as an extraordinary factor for the court to consider in determining whether an accused's constitutional right to a speedy trial has been violated.  Under the Trust Territory Court's formulation, the four-factor balancing test must take into account the uniqueness of the Micronesian islands and their differing cultures and customs.

    3.  Pohnpei's Experience
    The Charter of the Ponape District Government which provided the organizational framework for the district government immediately preceding the adoption of the Pohnpei Constitution provided the similar right as it said:

    "In all prosecutions the accused shall enjoy the right to a speedy trial, public or private as he may request."  Ponape District Charter (3 TTC 496).  This language is similar to that which is found in the Trust Territory Bill of Rights.  See 1 TTC 4.

    Trust Territory Court cases construing the right to speedy trial as observed above, i.e., Figir v. Trust Territory, 3 TTR 127 (Yap 1966), Trust Territory v. Ogo, 3 TTR 287 (Mar. 1967), Trust Territory v. Waayan, 7 TTR 560 (App. 1977), and Trust Territory v. Este, 7 TTR 568 (App. 1977) involves no case in Pohnpei, and for that reason there is no case which is of direct impact on Pohnpei's experience.  Thus we are left with no direct source to lay our hands on to claim as "the rule, or the proper construction to be applied to the speedy trial right provision of the Constitution of Pohnpei."

    4.  Defendant's Argument
    The defendants urged the court to apply the holding in United States v.

[5 FSM Intrm. 449]

Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), although they did not provide any justification as to the relevancy of the Marion holding to the circumstances and the perceptions of the people of Pohnpei, other than simply stating that "the highest U.S. Court held that the speedy trial provision has no application until the `putative defendant' in some way becomes an `accused.'" More specifically, the U.S. Supreme Court held:

Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. . . .  So viewed, it is readily understandable that it is either a formal indictment or information or else the a actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.

Defendants' Memo of Pts. and Authy. at 3.

    5.  Consideration
    While the lessons learned from the above foreign cases, including Marion as argued by the defendants are matters of academic value, our court system    has to be extra cautious in applying the foreignly developed concepts of criminal justice into our own, so that in adopting or applying such concepts we do so without doing injustice to our own cultural and traditional values.

    For example we find in Pohnpei criminal procedures such requirements that court recognizes and considers "generally accepted customs relating to crimes and criminal liability," Pon. S.L. 1L-3-85, 1-12 (as amended); that the [State Prosecutor] is entrusted with unfettered "discretionary power to close or abstain form any further action relative to a criminal case where there has been customary settlement effected and the victim or victims are satisfied therewith," Pon. S.L. 1L-3-85, 1-13; and that criminal liability in most instances in the society we live in is viewed, in practice, as a feud between members of the offending party and of the victimized party, although the State of Pohnpei is named as a party.  Of equal concern in the fact that Pohnpei Constitution upholds, respects, and protects the customs and traditions of the traditional kingdoms in Pohnpei.  Pon. Const. art. V.  With these factors in the process, criminal justice in this jurisdiction will have to be geared toward what would effect and maintain our society whole.

    We must, however, learn to understand and to recognize the differences in criminal law practice as prevailing in other jurisdictions such as the proceedings before a grand jury, ex parte, to determine if a crime has been committed and if there is evidence to hold the defendant for trial, the practice requiring that the defendant is held for the grand jury if his case is neither dismissed nor transferred for trial to some court having

[5 FSM Intrm. 450]

jurisdiction over the crime, the requirement that trial be conducted by jury, and so forth.  All such practices are lacking in the Pohnpei criminal law practice.

    The differences in procedure, history, customs and practice as observed above do not, in the opinion of this court, require similar construction and application of the right to a speedy trial in Pohnpei as the clause is construed and applied in other jurisdictions.

    We are not unmindful of the FSM Supreme Court Chief Justice Edward C. King's treatment in FSM v. Mudong, 1 FSM Intrm. 135 (Pon. 1982) of the relationship between customary law and criminal law where he declared customary law as subservient to written law.  Chief Justice King's treatment of customary law seemed to have neglected the fact that "custom," in an island society or island nation where people in that society know or are related to each other, and "law" is the tool that regulate the behaviors of persons in an industrialized society where people are strangers to and not related to one another.  As Standford University law professor Lawrence Friedman correctly said, "Custom is what we call the norms that regulate face-to-face relationships; law is the word for norms that regulate relations among strangers."  With due respect to Chief Justice King's treatment of customary law and criminal law, this court believes that the overriding object of criminal justice in Pohnpei is to maintain and effectuate harmonious living conditions among the people, more so than to punish offenders.  This is not to say that criminal offenders should not be brought to trial.  Trial if unavoidable should be had where having it will serve as a means to accomplish the objective thus noted.  To simply forego with trial because of the existence of certain legal impediments in the process may work corruption of Pohnpeian society.

    6.  What is a Speedy Trial to Mehn Pohnpei?
    Speedy trial is a received concept, and it is defined as a trial as soon after indictment as prosecution can with reasonable diligence prepare for it.  It does not mean trial immediately after defendant's apprehension and indictment, but trial consistent with the court's business.  As secured by constitutional guarantees, a trial conducted according to fixed rules, regulations, and proceedings of law, free from unreasonable delay.  Black's Law Dictionary 1255 (5th ed. 1979).

    Does the definition given above comport with the Pohnpeians' concept of criminal justice?  The definition thus given is clearly a "reversed process" of the Pohnpeian common practice of settling an offensive conduct committed by one person against the other, a practical concept closely related to, if not the counterpart of, the western concept of speedy trial.

    Under Pohnpeian customary practice in resolving conflict resulting from the commission of a criminal act, duty lies upon the family and the party who committed the criminal act to initiate the process of resolving the conflict with the family and the party being offended.  The offending party should initiate the process of resolving the conflict as soon as practicable because

[5 FSM Intrm. 451]

(1) any delay would convey the feeling to the offended party that the offending party does not intend to make peace with the party so offended, and (2) any delay would set the stage for a revenge, the result of which could be quite detrimental to an island society.  Thus in construing the speedy trial clause of article IV, section 9 (2) of the Constitution of Pohnpei, regard also should be made of these customary factors in order to arrive at a more acceptable balance between the western and the Pohnpeian concepts of speedy trial, otherwise speedy resolution of hostilities or conflicts.  Care should be taken in the process so that other defined constitutional rights, e.g., presumption of innocence or right to remain silent are not unduly offended.

    Thus when the prosecutor commences a criminal prosecution against an individual under our criminal statute, a delay in bringing the accused to trial which might affect the accused's speedy trial right as spelled out in the Constitution of Pohnpei will be reviewed by the Court on the basis of:

    (1) whether the delay was necessary to afford the accused an opportunity (should he or his family chooses to exercise the customary practice) of pacifying hostilities arising from criminal conduct between the defendants and his victims, or

    (2) whether the delay was necessary in order for the prosecutor to prepare for the trial, given the complexity and other circumstances of the case, or

    (3) whether the delay was the result of certain excusable neglect on the part of the any agency involved in the criminal process, or

    (4) whether the delay was employed by the prosecution to subject the accused to an undue oppression.

    A delay which answers question (1), (2), or (3) in the negative abridges the defendant's constitutional right to a speedy trial under the Constitution of Pohnpei.  A delay which answers questions (4) in the affirmative violates the defendant's rights to speedy trial.

    7.  When Right Attaches
    In determining the time when the right to a speedy trial commences under the Constitution of Pohnpei so that a person who becomes an accused can be said to have been given an opportunity to utilize the customary process of resolving hostilities and that his right to a speedy trial to be triggered, the court must first determine when the prosecution of an accused legally commences.  Under Pohnpei statute a prosecution commences in one of two ways:

    (1) when an information or complaint is filed,

               OR,

    (2) when an arrest warrant or other process is executed without unreasonable delay.  S.L. 1L-3-85, 1-11(5) (as amended).
 
[5 FSM Intrm. 452]

   To translate the statutory language into action, taking customary practices into account, the prosecution of a person accused of a crime commences when the Government, after necessary information has been gathered and analyzed, and an information or complaint is filed with the court charging an individual of certain crime or crimes and notice in the form of summons or other process is made to the person named in the information or complaint; or when a person accused of a crime is arrested without delay by means of a warrant of arrest or other process issued by a judicial officer.

    Thus any one of these acts of (i) filing an information or a complaint with the court and effecting service of that information or complaint upon the one named as the accused, or (ii) the execution by an officer of the law of an arrest warrant or other process issued by the authority of the court upon the accused commences a criminal prosecution in Pohnpei, and any one of those acts triggers the accused's right to a speedy, public, and impartial trial within the meaning of section 9(2), article IV of the Constitution of Pohnpei.

    The words "other process" as used in the amendment of the State Criminal Code Act, Pon. S.L. 2L-207-91 is not defined, thus subjecting it to judicial construction.

    In urging the court to apply Marion as the proper authority in resolving the issue of speedy trial in this case, the defendants argue that the phrase "other process" as used in section 1-11 (5) of Pon. S.L. 2L-207-91 refers to warrantless arrests. "It does not refer to service of `summons' which follows both an `arrest' or `formal charge' by way of an information.  Any `process' which comes after either `arrest' or `formal charge' is irrelevant to resolving the issue of the constitutional right of speedy trial."  Defendant's Pts. & Auth. at 4.

    This argument warrants some scrutiny in light of the differences in history, culture and practice noted above.  The word "process" as used in Civil and Criminal Proceedings is defined in Black's Law Dictionary as follow:

     Process is defined as any means used by court to acquire or exercise its jurisdiction over a person or over specific property. Means whereby court compels appearance of defendant before it or a compliance with its demands. . . . The word "process," however, as now commonly understood, refers to a summons, or, summons and complaint, and less commonly, to a writ.  "Legal process" . . . properly . . . . means a summons, writ, warrant, mandate, or other process issuing from a court.

Black's Law Dictionary 1084-85 (5th ed. 1979)(citations omitted).

    Under Trust Territory criminal law practice,

in case of all criminal offenses for which the lawful punishment does not exceed a fine of one hundred

[5 FSM Intrm. 453]

dollars or six months imprisonment, or both, a penal summons to appear before a court at a time and place fixed in the penal summons shall be issued instead of a warrant of arrest, unless it shall appear to the court or official issuing the process that the public interest requires the arrest of the accused.

12 TTC 56.  Thus under the Trust Territory criminal procedure, "process" refers to "penal summons" and not "warrantless arrest."

    The definitions noted above do not comport with the defendants' urging that the term "other process" refers to warrantless arrests.  "Warrantless arrest" means "[a]rrest of a person without a warrant.  It is generally permissible if the arresting officer has reasonable grounds to believe that the person has committed a felony or if the person has committed a misdemeanor amounting to a breach of the peace in the officer's presence."  Black's Law Dictionary 1422-23 (5th ed. 1971). A warrantless arrest is not a process issuing from the court.  Thus I feel rather uncomfortable accepting the definition urged by the defendants that the words "other process" refer to "warrantless arrest."

    I hold therefore that the words "other process" as used in section 1-11 (5) of Pon. S.L. No. 2L-207-91 includes summons, writ, warrant, mandate, or other process issuing from or by the authority of the court to have the defendant named therein appear before it on an appointed time.

    In the case at bar, the defendants having been arrested on September 15, 1991, released on September 16, 1991, pursuant to a subsisting agreement of the Prosecutor and the Public Defender's Offices, and without any information that a complaint had been filed against them on September 17, 1991, until service of the complaint and summons was made upon them on March 12, 1992, the prosecution, under the circumstances, thus commenced on March 12, 1992. Had the defendants been released on bail through a court proceeding, where the court would ensure that the defendants had received a copy of the complaint, the prosecution of the charge of disturbing the peace would have commenced against them on September 15, 1991, inasmuch as the complaint was formally filed in court on September 17, 1991.

    Accordingly and on the basis of this holding, the actual time span between the commencement of the prosecution to wit, March 12, 1992, and the date of the arraignment April 28, 1992, was approximately 47 days.  The defendants argued that the length of delay in this case should be counted from the date of arrest, which is September 15, 1991.  That argument takes support if we were to employ the formula employed in the United States as we read in the cases cited above, and especially if the defendants were released on bail.  In this case, the defendants were released pursuant to a certain agreement worked out by the Prosecutor and the Public Defender's offices.  No notice was made to the defendants that the charge for which they were arrested on September 15, 1991, was formally filed with the Court on September 17, 1991.  Without such knowledge brought to the defendants, no opportunity was given to them yet to exercise their customary prerogative of attempting to pacify any hostility that might have resulted from their conduct of September 15, 1991.  Finally,

[5 FSM Intrm. 454]

it would be improper for the court to infer that they were in any way being subjected to any hardship.

    Having come to this conclusion, we can now assess the reasons assigned by the Prosecution for the delay complained of in this case.

    8.  Reasons for the Delay
    The Prosecutor gave two reasons for the lack of service of process upon the defendants resulting in the delay.  First, the Prosecutor argued that the Statute of Limitations allowed the prosecution to commence criminal proceedings against the defendants within three years after commission of the alleged offense, thus the prosecution read the law to mean that it had until September 15, 1994, to bring the defendants to trial.  Two, the Office of the Public Defender failed to perform its part of a subsisting agreement5 to effect service of process upon the defendants.  In his brief, the Prosecutor framed and styled the reason as follows:

Public Defender's Office did not file any return of service with the court to show reason the service cannot be made in time as they promised the government before government releasing the defendants from custody or the jail.  Government relied on the representation given by [Mr.] Joseph Phillip6 that their office will be responsible for serving the complaint upon the defendants.

Gov't's Answer to Defense Motion for Recon. at 4.

    a.  Statute of Limitations.  The statute of limitations runs from the time the offense is committed until the prosecution commenced, unless some intervening act occurs to interrupt it.  21 Am. Jur. 2d Criminal Law 161 (1965).  Statutes of limitation in criminal cases are considered as being acts of grace, or as a surrendering by the sovereign of its right to prosecute.  They create a bar to prosecution and are therefore not merely statutes of repose as they are in civil cases.  Id. 154.  The statute of limitations begins to run from the time of the commission of an offense, or when the crime is complete, not from the date the crime is discovered.  Id. 157.  Translating the above rule to the case at bar, the statute of limitations began to run when the defendants were alleged to have committed the offense of disturbing the peace on September 15, 1991, and ended when the prosecution

[5 FSM Intrm. 455]

commenced on either the filing of the complaint on September 17, 1991, (as argued by the defendants) or on March 12, 1992, when service of the complaint, together with the summons from the court was made upon the defendants (as concluded by the court).  On whichever reading one relies, the reliance of the Prosecution that it could bring the defendants to trial within three years from the commencement of the prosecution was misplaced.

    Once the prosecution commences, the limitations period no longer is available to the prosecutor.  The prosecutor must then face the task of bringing the defendants to a prompt resolution of the conflict so allegedly committed, otherwise, to a prompt trial.

    b.  Subsisting Agreement Between the Prosecutor's and the Public Defender's Offices.  The Government also relies on a subsisting agreement that arrestees who are arrested on week-ends or on holidays be released as soon as practicable without bail hearing and that the Public Defender assumes the responsibility of serving the complaint and summons upon such defendants.  The exact terms of the subsisting agreement is not clear to the court, for example, it is not all clear whether the Public Defender's Office is responsible to pick up a copy of the complaint as filed with the Clerk of Court and, together with the summons issued from the Clerk's Office, serve upon the defendants.  Also it is not clear whether the responsibility lies upon the Prosecutor to deliver a copy of the complaint, as filed with the Clerk of Court, and summons issued therewith to the Public Defender's Office for service upon the defendants.  Because of the agreement of the two principal Offices, with its indefinite terms, I think in all fairness that both the Prosecutor and the Public Defender's Office should be viewed as contributing to the element of delay if ever there was such a delay in this case.   However, considering the circumstances of the case, I conclude that the delay in not effecting service sooner was not intentional or purposeful, nor was it calculated to cause any hardship to the defendants.  Hence it is excusable under objective 3 above.

    Accordingly and given the circumstances of the case, I maintain my earlier conclusion that the defendants' constitutional right to a speedy trial under the Constitution of Pohnpei was not abridged by the delay, whether it was a delay of 226 days or 7 and one half months, as argued by the defendants, or a delay of 47 days as concluded in this opinion.

IV.  POHNPEIAN CONCEPT OF JUSTICE.
    Notwithstanding the conclusion above reached, I need to assess whether the Pohnpeian concept of justice, Pon. Const. art. X, 11, would justify further proceeding in view of the circumstances shown in the case.  The particular charge--disturbing peace-- was truly a simple street crime.  Among those who might have been victimized by the act, the defendants, in my view, suffered more; they were arrested and taken to jail.  The Government did not show real interest in prosecuting the charge as indicative of the Government's inaction to effect service until March 12, 1992.

[5 FSM Intrm. 456]

   Considering the foregoing circumstances along with the subsisting  agreement of the Prosecutor and the Public Defender's Offices, not clear in its terms and which gave rise to the problem being addressed here, Pohnpeian concept of justice would require that the defendants be relieved from the bondage which the subsisting agreement referred to above might have cast upon them.  Pon. Crim. R. 48 also allows the court to dismiss the charge against the defendants for the delay experienced in this case.

    Finally, a caveat on application of statute on constitutional issue is added here. The defendants further argued that because the present issue is based on constitutional grounds, state law [referring to the statute of limitations] does not apply.  Defts' Pts and Authorities at 4.

    In a California case, Harris v. Municipal Court of Los Angeles, 285 P. 699 (Cal. 1930), the Supreme Court of California, per curiam, referring to the Penal Code enacted by the Legislature prescribing the period within which certain offenses must be brought to trial said,

     What is a "speedy trial," as those words are used in the Constitution? The Legislature in section 1382 of the Penal Code has declared that, unless a defendant in a felony case has been brought to trial within sixty days after the finding of the indictment or the filing of the information, the court must, in the absence of good cause shown for the delay, dismiss the prosecution.  Thus the Legislature by necessary inference had said that a trial delayed more than sixty days without good cause is not a speedy trial, and the courts have not hesitated to adopt and enforce the legislative interpretation of the constitutional provision." Ford v. Superior Court, 17 Cal. App. 1, 118 P. 96; Abbot v. Superior Court, 17 Cal. App. 13, 118 P. 100; People v. Morino, 85 Cal. 515 24 P. 892.
 
Id. at 701.

     The citations above show that the California Legislature by legislation prescribed the period within which the Constitutional provision of speedy trial operates.  For this reason, it would be quite unjustifiable to imply that the Pohnpei Legislature could not do likewise.

V.  Conclusion.

    1.  The defendants' right to speedy trial under the Constitution of Pohnpei was not abridged by the delay complained of in this case.

    2.  The extenuating circumstances considered, the Pohnpeian concept of justice and Pon. Crim. R. 48(b) justify dismissal of the charge of disturbing the peace against the defendants.

    3.  The charge of Disturbing the Peace against the defendants is hereby dismissed.
*    *    *    *

Footnotes:

1.  The introductory remark of the court's May 12, 1992, order states in pertinent part: "At the arraignment on April 28, 1992, attorneys for the defendants jointly moved the court to dismiss the charge against the defendants alleging that the Prosecutor had violated their constitutional rights to a speedy trial by failing to bring the matter to trial for an unnecessary length of time since the defendants were arrested on September 15, 1991, remained in the State jail for one day, and a formal charge of disturbing the peace filed against them on September 17, 1991."

2.  Upon the request of the attorney for the government, a summons instead of a warrant shall issue.  More than one ... summons may issue on the same complaint.  If a defendant fails to appear in response to the summons, a warrant shall issue.  Pon. Crim. R. 4(a).

3.  "Sec. 492.  Dismissal by court.  If there is unnecessary delay in bringing an accused to trial, the court may dismiss an information, or complaint, or citation."  TTC 492 (1965).

4.  "In all criminal prosecutions the accused shall enjoy the right to a speedy public trial . . . ."  1 TTC 4.

5.  As represented to the Court by counsel, the agreement between the Prosecutor and the Public Defender's Offices provides in essence, "if criminal offenders are arrested on weekends or on holidays, the police may release the arrestees as soon as practicable so that they don't have to be in custody until the next Monday or the next work day.  In return, the Public Defender's Office agrees to serve the complaint and summons upon the defendants if complaints are subsequently filed in court."

6.  As represented to the Court by counsel, the agreement between the Prosecutor and the Public Defender's Offices provides in essence, "if criminal offenders are arrested on weekends or on holidays, the police may release the arrestees as soon as practicable so that they don't have to be in custody until the next Monday or the next work day.  In return, the Public Defender's Office agrees to serve the complaint and summons upon the defendants if complaints are subsequently filed in court."