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No due process violation from delayed indictment

Virginia Lawyers Weekly//April 13, 2023

No due process violation from delayed indictment

Virginia Lawyers Weekly//April 13, 2023//

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Even though there was a 26-year delay before appellant was indicted for forcible sodomy, robbery, and abduction with intent to defile, there was no due process violation.

The prosecutor did not intentionally delay the matter. The delay did not prejudice appellant.


Appellant was convicted of charges arising from a 1992 knifepoint assault of D.M. A physical evidence recovery kit (PERK) was used to collect foreign DNA from her. A DNA profile could not be developed from the small amount collected.

Appellant was one of several suspects Ford, the investigating detective on the case, asked appellant for a DNA sample. He declined. Ford was transferred to another division and the case went cold until 2016.

DNA technology advanced in the interim. There was enough DNA material in the PERK to develop a profile. The profile was compared to a sample of appellant’s DNA.

The overall odds that the DNA came from someone other than appellant were 1 in 7.2 billion.

Appellant was indicted on April 3, 2017, arrested on Feb. 26, 2018, and trial was set for April 25, 2018. Ultimately, appellant was convicted of all charges.

Indictment delay

“Appellant first argues … the 26-year pre-indictment delay violated his due process rights. …

“[T]o gain dismissal of criminal charges because of pre-arrest or pre-indictment delay, a defendant must establish that “(1) the prosecutor intentionally delayed indicting [the defendant] to gain a tactical advantage and (2) the defendant incurred actual prejudice as a result of the delay.”’ …

“[A]ppellant contends that the Commonwealth gained a tactical advantage by letting the case go cold in the 1990s to allow DNA technology to advance.

“Appellant argues that Detective Ford intentionally failed to verify appellant’s alibi, obtain a search warrant for appellant’s DNA, compare appellant’s fingerprints to those found in the car, and show appellant’s tattoos to D.M. during the investigation in the 1990s.

“That way, when DNA technology did develop, any other circumstantial evidence about appellant’s whereabouts on November 6, 1992, would have disappeared.

“Appellant’s argument is unconvincing. The Commonwealth could not know that DNA technology would advance to the point that the small amount of DNA evidence recovered from the PERK would become useful. The Commonwealth is not so prescient.

“The evidence instead suggests that Ford investigated several suspects, including appellant, but never gathered enough evidence to make an arrest.”

After Ford’s transfer, the case went cold. The Commonwealth could not indict “until it had sufficient evidence. That sufficient evidence came in 2016 with the advancement of DNA technology.

There was no intentional delay, so the court need not determine whether appellant was prejudiced.

Speedy trial

“The Commonwealth indicted appellant on April 3, 2017, and arrested him on February 26, 2018. The initial trial date was set for April 25, 2018. From April 25, 2018, to April 28, 2020, appellant moved to continue the case at least six times and caused the trial to be rescheduled on other occasions. …

“Between the last motion to continue on January 13, 2020, and the rescheduled trial date of April 28, 2020, the COVID-19 pandemic hit the United States.” Delays due to the pandemic ultimately pushed the trial date to Aug. 30, 2021.

“Appellant does not challenge the delays from February 28, 2018, to April 28, 2020, which came at his request, but instead challenges only those delays from April 28, 2020, to August 30, 2021.”

To determine whether there was a speedy trial violation, “[t]his Court must balance four factors: (1) the ‘[l]ength of delay,’ (2) ‘the reason for the delay,’ (3) ‘the defendant’s assertion of his right,’ (4) ‘and prejudice to the defendant.’ Barker v. Wingo, 407 U.S. 514, 530 (1972).”

Apportioning delay

“[A]ppellant challenges only the delay from April 28, 2020, to August 30, 2021 – a time span of approximately 1 year and 4 months, or 489 days. Because … this delay is presumptively prejudicial, it triggers a full analysis of the other Barker factors. …

“From March 16, 2020, to May 6, 2020, the Supreme Court limited jury trials but did not stop them outright.

“Because jury trials could still be held from April 28 to May 6, this eight-day period is attributable to the Commonwealth in the ordinary course.

“The Supreme Court halted all jury trials on May 6. … so delays during this prohibition period are attributable to the Commonwealth due to the pandemic.

“In this case, appellant did not agree to the 12-day delay from May 6, 2020, to May 18, 2020, so it is attributable to the Commonwealth rather than to appellant. … On May 18, appellant agreed to reschedule the trial until October 27, 2020. …

“The trial court closed the week of October 27 because of a COVID-19 outbreak, so it rescheduled appellant’s case to the next available trial date of May 17, 2021. The 202-day period between those dates is attributable to the Commonwealth due to the pandemic. …

“On May 17, 2021, the parties agreed to continue the case to August 30. Because appellant agreed to this 105-day delay, it is attributable to him rather than the Commonwealth.

“In sum, out of the 489-day delay from April 28, 2020, to August 30, 2021, 267 days are attributable to appellant, 8 days are attributable to the Commonwealth in the ordinary course, and 214 days are attributable to the Commonwealth due to the pandemic. …

“Of the 222 days attributable to the Commonwealth, all are fully justified.

“Delay in the ordinary course of administration of justice is typically valid and justified if not caused intentionally or negligently. …Here, there is no evidence or allegation that the Commonwealth intentionally delayed appellant’s trial to gain some sort of tactical advantage or prevent appellant from preparing his case. There also is nothing to suggest that the Commonwealth acted negligently. …

“The Commonwealth did not act improperly by promoting the health and safety of judicial personnel, who could have been exposed to COVID-19 if trials continued during the height of the pandemic or the local breakout in October 2021.

“For these reasons, all delays attributable to the Commonwealth are justified.”

Assertion of right

“Rather than asserting his right to a speedy trial soon after the COVID-19 pandemic began, appellant waited until May 13, 2021. …

Appellant’s assertion deserves less weight because he acted over a year after the Supreme Court’s first emergency order.”


Appellant argues that the delay between indictment and trial affected his health and prejudiced him because “witnesses’ memories faded.”

But he has not shown how “M.D.’s lapses in her memory impaired his defense. Moreover, “he has not identified any witnesses who would have testified on his behalf in 2020 but could not in 2021 because of either a faded memory or an unavailability to testify. …

“Nor has appellant explained how his failing health and pre-Alzheimer’s diagnosis prejudiced him in preparing his defense.”


Jernigan v. Commonwealth, Record No. 0259-22-1, April 4, 2023. CAV (unpublished opinion) (Huff). From the Circuit Court of the City of Virginia Beach (Lewis). Kristin Paulding for appellant. Jason S. Miyares, David A. Mick for appellee. VLW 023-7-134, 17 pp.

VLW 023-7-134

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