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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN THE PEOPLE OF THE VIRGIN ISLANDS, ) ) CASE NO. ST-10-CR-164 Plaintiff, ) vs. ) ) JAMAL A. MORTON, ) ) Defendant. ) ) MEMORANDUM OPINION THIS MATTER came before the Court on January 15, 2015 and January 23, 2015 for a hearing on the Defendant’s Supplement To and Renewed Motion to Dismiss Based On Speedy Trial Violation Pursuant to Federal Rule of Criminal Procedure 48(b) And The Sixth Amendment.! The People were represented by Hillary Krepistman, Esq., Assistant Attorney General. Defendant Jamal Morton was present and represented by Joseph A. DiRuzzo III, Esq. The Court heard testimony from Dwayne Benjamin, Assistant Director of the Bureau of Corrections and Michael Howsen, Morton’s alibi witness. At the conclusion of the hearing, the Court took the matter under advisement. By Order dated February 5, 2015, the Court denied the Motion to Dismiss. This Memorandum Opinion is issued to support that Order denying the Motion To Dismiss.” 1 The instant motion was filed on March 19, 2013. The People filed an Opposition on March 20, 2013. 2 Since that hearing the Defendant has filed two more motions to dismiss based on a violation of his right to a speedy trial. The Court will address those motions at a later date. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion I. Background Defendant Morton is charged with First Degree Murder, First Degree Assault, Reckless Endangerment in the First Degree, and related firearms offenses. Defendant Morton was arrested on March 26, 2010, and he was arraigned on April 15, 2010. The People allege that in the early morning hours of March 6, 2010, Kevin James was traveling in a Jeep with three other people in the Hospital Ground area of St. Thomas, Virgin Islands when he was suddenly shot in the head; the shots came from a Suzuki SUV traveling behind the Jeep, and two witnesses identified Jamal Morton as a passenger in the Suzuki. Defendant has been in custody since his arrest on March 26, 2010.3 Morton argued that the charges against him should be dismissed pursuant to the Sixth Amendment’s speedy trial guarantee. He asserts that the nearly five-year delay’, the People’s bad faith actions®, and the prejudice resulting from the delay favor dismissal. The People argued that Morton has contributed to the delay by filing numerous pretrial motions, which motions of course elicited responses from the People and resulted in many hearings. The People also asserted that there is no evidence they 3 As of the date of the denial of the subject motion to dismiss, this case was scheduled for jury selection and trial on June 1, 2015. However, the trial date has been continued on more than one occasion since then. It is now scheduled for jury selection on April 9, 2018, with trial to occur during the three-week period beginning thereon. 4 At the time the motion was argued, the case had been pending just shy of five years. > Defendant argues the Government committed bad faith when it transferred him to an off-island prison to serve a sentence in a separate case while this case was still pending. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion acted in bad faith or deliberately attempted to hamper the defense. Finally, they point to the Court’s schedule as a source of some delay.® II. Right to a Speedy Trial The Sixth Amendment to the United States Constitution, applicable to the United States Virgin Islands through section 3 of the Revised Organic Act of 1954,’ guarantees the right to a speedy trial. To determine whether a defendant’s speedy trial right has been violated, the Court must balance four factors: (1) the length of delay, (2) the reasons for the delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant. Carty v. People of the Virgin Islands, 56 V.I. 345, 364 (V.L. 2012) (citing Barker v. Wingo, 407 U.S. 514 (1972)); Gov't of the Virgin Islands v. Richardson, 51 V.I. 449, 458 (D.V.I. App. Div. 2009). “[N]o one factor is ‘a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Richardson, 51 V.1. 458-59 (quoting Barker, 407 U.S. at 533). Rather, the Court must balance the four factors. a. Length of Delay To trigger a speedy trial analysis, a defendant must show that there has been some delay. “Without some delay, there is no need for further inquiry into the ® The original trial judge retired on November 30, 2012, and there was no activity for approximately eight months before it was assigned to the current trial judge. 7 Revised Organic Act of 1954 is codified at 48 U.S.C. §§ 1541-1645 and reprinted in V.I. Code Ann., Historical Documents, Organic Acts, and U.S. Constitution at 861 (1995) (preceding V.1. Code Ann. tit. 1). People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion remaining factors of the balancing test.” Carty, 56 V.I. at 364. The speedy trial clock begins to run “from the date of arrest or indictment, whichever is earlier.” People v. Rivera, 54 V.I. 116, 125 (Super. Ct. 2010) (quoting United States v. Battis, 589 F.3d 673, 768 (3d Cir 2009). Morton was arrested on March 26, 2010. Five years had elapsed by the time of the hearing in January 2015. If the length of delay is longer than one year, it is considered presumptively prejudicial and the other three Barker factors must be weighed. Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992); Barker, 407 U.S. at 533 (characterizing a delay of “well over five years” as “extraordinary”). Therefore, the Court will evaluate the remaining factors. b. Reasons for the Delay The second factor requires the Court to assess the reason for the delay. Pretrial delay is often “inevitable and wholly justifiable.” Doggett, 505 U.S. at 656. The People bear the burden of justifying delays “because ‘ultimate responsibility for such circumstances must rest with the [GJovernment,’ since it is the Government's duty to bring a defendant to trial.” United States v. Battis, 589 F.3d 673, 679 (3rd Cir. 2009) (quoting Barker, 407 U.S. at 527). In Doggett v. United States, the United States Supreme Court described a range of Government action from “reasonable diligence” to “bad faith” with negligence occupying the middle ground. 505 U.S. at 656; United States v. Velazquez, 749 F.3d 161, 175 (8d Cir. 2014). If the People have been reasonably diligent in their People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion prosecution, “the defendant's speedy trial claim will fail ‘however great the delay, so long as [the accused] could not show specific prejudice to his defense.” Velazquez, 749 F.3d at 175 (citing Doggett, 505 U.S. at 656). In comparison, if the People caused delay in bad faith, relief is “virtually automatic.” Id. “Negligence over a sufficiently long period can establish a general presumption that the defendant's ability to present a defense is impaired, meaning that a defendant can prevail on his claim despite not having shown specific prejudice.” Velazquez, 749 F.3d at 175 (citing Doggett, 505 U.S. at 658 (finding a speedy trial violation based on general prejudice where government’s negligence led to six-year delay)). The Court's physical file reflects the twisting history of this case. As of the date of the hearings in January 2015, the Court’s docket consisted of nineteen single-spaced pages. It listed many motions, responses, discovery exchanges, notices, hearings, orders, and appeals. At that time the Court file was comprised of hundreds of pages in five separate file folders and stored in its own Bankers box.® At the outset, the Court notes that the People filed three motions to continue or for extensions of time, and Morton filed eight such motions, as more fully detailed below. 8 The Court file has grown since January 2015. However, this opinion is in support of the February 5, 2015 Order denying the motion to dismiss. Therefore, the Court limits its analysis to the state of the file and the case at that time. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion Morton was arrested on March 26, 2010, and his Initial Hearing was held on March 29, 2010. The Government filed an Information on April 13, 2010, and Morton was arraigned on April 15, 2010. At arraignment, the Court issued an oral scheduling order under which discovery was due April 29, 2010, the deadline for all motions was May 6, 2010, and the deadline for responses to motions was May 13, 2010.9 On May 4, 2010, Morton moved to extend the motions deadline because he had not yet received any discovery from the People. Morton requested an extension of ten days after the date the Government provides discovery. On May 14, 2010, the Court granted Morton’s motion and established a new schedule: discovery was due on May 28, 2010, motions on June 11, 2010, any plea offer by June 21, 2010, and change of plea deadline was June 30, 2010. In the following three months, between April 2010 and July 2010, Morton filed sixteen motions.!0 Those motions include two motions to dismiss and one motion for a modest extension of time. By the fall of 2010, the People responded to some of these motions and filed eleven of its own motions. In response to the parties’ motions and other filings, the Court entered fifteen orders and held three hearings in 2010, ° Record of Proceedings for April 15, 2010 arraignment. The oral order also provided that any plea offer had to be extended by May 17, 2010, and the last day for change of plea was May 21, 2010. * See Motion for Appointment of Ballistics Expert (filed April 26, 2010); Motion to Compel (filed May 3, 2010); Motion to Extend Motion Practice Period (filed May 4, 2010); Motion for Transcript (filed May 19, 2010); Motion to Deem Conceded Defendant’s Motion for Disclosure of Confidential Informants (filed May 28, 2010); Motion to Dismiss Counts 2 and 4 and Declare Unconstitutional the Virgin Islands Firearms Licensing Regime (filed June 7, 2010); Motion to Inspect (filed June 7, 2010); Motion for Reconsideration of May 26, 2010 Order (filed June 9, 2010); Emergency Motion to Stay Court’s June 8, 2010 Order (filed June 11, 2010); Motion to Suppress Suggestive Pretrial Identification (filed June 11, 2010); Motion to Dismiss for Loss of Evidence (filed June 15, 2010); Motion for Hearing Pursuant to U.S. v. Starks (filed June 24, 2010); Motion to Strike Government’s Notice of Intent to Seek Habitual Offender Sentencing (filed July 14, 2010). People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion including an evidentiary hearing on Morton’s Motion to Suppress Suggestive Pretrial Identification.!! On July 21, 2010, the People filed a Motion for a Trial Date requesting a trial date in late fall 2010. In 2011, Morton filed six motions, the People filed two, and the Court issued nine orders and held one conference. On August 9, 2011, Morton’s counsel filed a Motion to Require the Territory to Provide Constitutionally Adequate Attorney’s Fees. Meanwhile, the Superior Court issued an Order on August 24, 2011 scheduling a status hearing and hearing on all pending motions for September 7, 2011. Seven days later, counsel for Morton moved to continue the September 7, 2011 Calendar Call. The Motion explains that Morton’s Attorney’s Fees motion was still pending and the Virgin Islands Bar Association needed time to file its amicus curiae brief. In separate Orders issued on September 2, 2011, the Court denied the Motion to Continue and ordered that the issue of the constitutionality of attorneys’ fees be severed from Morton’s criminal case. On September 6, 2011, Morton filed a Notice of Appeal and Motion to Stay pending appeal, which appealed the September 2, 2011 Order severing the issue of attorneys’ fees from Morton’s criminal case.!2 At the September 7, 2011 conference, “1 See Record of Proceedings of July 1, 2010 suppression hearing. 2 See Notice of Appeal filed September 6, 2011. On October 14, 2011, the Supreme Court dismissed the appeal for lack of jurisdiction. Morton then filed a petition for writ of certiorari in the Third Circuit Court of Appeals, but that petition was denied on December 22, 2011. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion the Court scheduled jury selection for November 7, 2011, with the trial to begin the following week, on November 14, 2011. On October 3, 2011, Morton filed a Motion to Continue the November 7, 2011 Jury Selection and November 14, 2011 trial date on the grounds that the People had, on September 26, 2011, filed a motion for enlargement of time to obtain a ballistics report. Morton opposed the Motion for enlargement of time but requested sufficient time to review any ballistics report in the event the Court granted the People’s motion. Furthermore, Morton’s counsel was scheduled to appear before the Third Circuit in New Jersey for oral argument during the week of November 14, 2011, and that argument date was set before the Superior Court scheduled Morton’s trial for November 14, 2011. However, Morton was a defendant in another criminal case where he was also charged with first degree murder, and that case was also scheduled for trial in the same calendar quarter. In order to prevent Morton from being twice exposed to the same jury pool for two first degree homicide cases, the Court severed Morton’s case from the cases of his two co-defendants and continued Morton’s trial date in this case.!3 Between December 22, 2011 and July 10, 2012, the Court issued one order and the parties continued to file and respond to one another’s motions. !4 13 See Order dated October 21, 2011. The co-defendants’ trials were then expected to proceed with jury selection on November 7, 2011 and trial on November 14, 2011. 4 Morton challenged the Superior Court’s September 2, 2011 Order in the form of a petition for writ of mandamus filed in the Supreme Court of the Virgin Islands on December 22, 2011, where Morton sought a writ of mandamus requiring the Superior Court to rule on the motion regarding the adequacy of attorneys’ fees for court-appointed attorneys as applied to counsel. The Supreme Court denied the petition on February 27, 2012. Morton petitioned for a writ of certiorari on March 15, 2012, but the Third Circuit denied the petition on July 10, 2012. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion The parties filed only a few motions each in 2012. The docket reflects no activity at all between February 2, 2012 and July 26, 2012. The reason for this delay is unclear.!5 At the end of 2012, the original trial judge retired and the current trial judge did not assume her duties until July 2013. Between March 20, 2013 and November 7, 2013, there was no activity except the filing of the People’s First Supplemental Demand for Notice of Alibi Discovery and Reciprocal Demand. This is likely because of the eight-month lapse between the original trial judge’s retirement and the current judge’s assumption of duties. The parties and the Court resumed work on the case in November 2013. Morton emphasizes that the Government’s bad faith actions caused him to miss a November 19, 2013 status conference. The background is as follows: on November 7, 2013, the Court ordered the parties to appear at a status conference on November 19, 2013. In a motion dated November 11, 2013 but reflecting a filing date of November 20, 2013, Morton moved to continue the status conference!® on the grounds that Morton was incarcerated at Wallens Ridge Correctional facility in Big Stone Gap, Virginia and would therefore not be able to attend the conference. Morton further explained that his counsel would be unable to attend the status conference because he was beginning another trial in Miami, Florida on November 18, 2013. 15 In May 2012, Morton was convicted of second degree murder in the other case and is currently serving his sentence in that case. 16 While moving for continuance, Morton urged that the continuance not be counted against him due to the alleged short notice of the status conference. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion The People appeared for the status conference on November 19, 2013. Counsel for the People informed the Court that Morton had been transferred from Golden Grove correctional facility in St. Croix, Virgin Islands, to Wallens Ridge, Virginia,” and that it would take three weeks to transport Morton back to the Virgin Islands. The Court entered an Order later that day granting Morton’s motion to continue the status conference and rescheduling the conference for February 6, 2014. The Order specified that the People were to arrange for Morton’s transportation back to the Territory. On January 31, 2014, the People filed an Informational Motion advising the Court that Morton’s transportation to the Virgin Islands would be delayed as a result of inclement weather in the United States and Morton would not arrive in time for the February 6, 2014 conference. On January 31, 2014, the People informed the Court that they expected Morton would not arrive in the Virgin Islands until February 20, 2014. Thereafter by Order dated March 4, 2014, the Court rescheduled the Status Conference for March 25, 2014. On March 20, 2014, Morton filed a Motion to Reschedule the Status Conference on the grounds that Morton’s counsel was scheduled to attend a settlement conference (in another case) on March 25, but could attend the status conference telephonically on March 26, 27, or 28, or in person during 1” At the evidentiary hearing on January 23, 2015, Dwayne Benjamin, Assistant Director at the Bureau of Corrections, testified that Morton was transferred from St. Croix to Virginia possibly in March 2013, but he was not sure of the date. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion the week of March 31. In response, on March 138, 2014, the Court entered an Order granting Morton’s motion and rescheduling the status conference for June 19, 2014. Therefore, six months was lost between November 2013, when the status conference was scheduled before the new judge assigned to the matter, and June 19, 2014, when all parties actually appeared. Three of those months are attributable to the People (for Morton not being on island) and the other three months to Morton, as he needed continuances. Following the Status Conference the Court entered an order tending to several pending issues, including granting Defendant’s Motion For Ballistics Expert and reserving ruling on motion for investigator pending submission of the proposed investigator’s resume. The fact that Defendant needed an expert and investigator as late as June 2014 is indicative that Defendant was not yet ready for trial.!8 The Court also scheduled Defendant’s subject Motion To Dismiss For Speedy Trial Violations for hearing on July 9, 2014. In preparation for the hearing, Morton served subpoena duces tecum upon five employees and officers of the Bureau of Corrections to appear at the July 9 hearing, and the People filed a Motion To Quash the subpoenas. The Court temporarily recalled the subpoenas, continued the hearing on the Motion To Dismiss and converted the July 9 hearing into a hearing on the Motion to Quash. At that hearing, the Court also heard argument on Morton’s Motion 38 As of the date of this Opinion, Defendant’s expert has still not fully examined the evidence. However, at least a portion of the delay is caused by the People. Defendant’s second motion for dismissal based on speedy trial violation addresses this issue. Consequently, it will be addressed in the opinion on that motion at a later date. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion For 5 V.I.C. § 3863 Certificate, Or In The Alternative, Motion For Fed. R. Crim. P. 15 Deposition, filed July 2, 2014.1920 After disposing of those motions, the hearing on the Motion To Dismiss for speedy trial violations was rescheduled for November 18, 2014. The Court also decided Defendant's Motion To Disclose Jury Selection Procedures, also filed July 2, 2014, where Defendant sought, among other things, an evidentiary hearing to determine the fairness of the jury selection process and whether Hispanics and Caucasians are underrepresented. That Motion was denied as premature,?! and in October 2014, Morton filed a petition for writ of mandamus in the Virgin Islands Supreme Court requesting that court direct this Court to decide Defendant’s Motion for a Determination Regarding Preserving Error During Jury Selection Pursuant to Banks, filed on June 4, 2014.22 In the interim, by Order dated June 4, 2014, the case was scheduled for jury selection on December 8, 2014, with trial to commence during the two-week period beginning on that date. As the trial date approached, Morton declined to advise the *® Morton’s Motion For 5 V.I.C. § 3863 Certificate sought permission to either subpoena or depose Basil Richards, former warden of Golden Grove, who Morton believes was then living in California, to have him give testimony at the speedy trial violation hearing. Morton claimed that Basil Richards was a material witness and wished the Court to invoke its authority under 5 V.1.C. § 3863 to command Richards appearance and testimony, including if necessary, having Richards taken into immediate custody and delivered to the Virgin Islands. Alternatively, Morton sought to depose Basil Richards pursuant to Rule 15 of the F. R. Crim. P. 20 By Order dated September 26, 2014, the Court ultimately granted the People’s Motion to Quash, granted the People’s Motion For Protective Order, denied the People’s Motion For Sanctions and denied Morton’s Motion For 5 V.L.C. § 3863 Certificate, Or In The Alternative, Motion For Fed. R. Crim. P. 15 Deposition. 21 See Order dated September 26, 2014. 22 In a per curiam opinion dated December 4, 2014, the Supreme Court denied the petition. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion Court if he would move for continuance of the trial date while his Petition For Writ of Mandamus was pending, but the Court continued the jury selection and trial to March 2, 2015 to conserve its judicial resources.2 During 2014, Morton filed six motions plus six notices and responses, the People filed seven motions and seven notices or responses, and the Court issued twelve orders and held three hearings. The case continued into 2015, starting with the hearing on the subject motion to dismiss for speedy trial violations. The hearing commenced on January 15, 2015, and was continued to January 23, 2015 when it was discovered that Morton had not received a complete copy of his Bureau of Corrections file. As of January 2015, a pretrial conference was scheduled for February 13, 2015 and the case was scheduled for jury selection on March 2, 2015, with trial to commence during the three weeks beginning on that date. The record of this case reflects that both parties are responsible for some portion of the delay, but the longer delays were caused by Defendant. Morton's litigation strategy involved filing numerous motions, resulting in responses from the People and from the Court as well as several hearings. In addition, Morton filed one appeal and two petitions for writs of mandamus in the Supreme Court of the Virgin Islands and sought certiorari review after those petitions were denied. Any delay not attributed to Morton is counted against the People, with the weight of each delay depending on whether the People acted with reasonable 23 See Order entered November 10, 2014. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion diligence, negligence, or bad faith. Velazquez, 749 F.3d at 175. If the People have been reasonably diligent in their prosecution, “the defendant's speedy trial claim will fail ‘however great the delay, so long as [the accused] could not show specific prejudice to his defense.” Velazquez, 749 F.3d at 175 (citing Doggett, 505 U.S. at 656). There is no evidence that the People acted in bad faith during any part of this litigation. At the evidentiary hearing on January 23, 2015, Morton argued that the Bureau of Correction’s transfer of Morton from St. Croix to Virginia was a bad faith attempt to Morton’s trial or make him unavailable for court hearings. However, Dwayne Benjamin, the only witness to give testimony at the hearing on the issue of the transfer, testified that any inmate may be transferred to any facility that the Bureau of Corrections contracts with for that purpose. Benjamin further testified that when Morton was transferred, the Bureau of Corrections was reducing the population at Golden Grove and removing maximum security offenders24 such as Morton. Thus, Morton has not shown that the People acted in bad faith in transferring him to Virginia or in any other instance. Furthermore, his absence from the Territory, even if charged to the People, only caused a three-month delay, which is not sufficient to constitute long term negligence. Generally, the People have prosecuted this case with reasonable diligence. Nevertheless, the docket reflects sor1e periods of inactivity. This eight-month delay occasioned by the retirement of the original trial judge and the appointment of the 74 Benjamin testified that there are three levels of security: minimum, medium, and maximum. An inmate’s classification is based on the type of offense and the length of the sentence they are serving. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion new one weighs against the People, though Court does not weigh it heavily. Rivera, 54 VI. at 7 (delays caused by the retirement of one judge and reassignment to another are generally not weighed heavily against the prosecution). After due consideration, the Court finds that none of the delays were the result of bad faith on the part of the People. Morton is responsible for the delay resulting from his numerous motions, one appeal and two petitions for writ of mandamus. Therefore, the reason for delay factor weighs against Morton. (c) Morton’s assertion of the right The next prong the Court must consider is the Defendant’s assertion of his right to a speedy trial. A defendant, represented by counsel, shows that he has asserted his right to a speedy trial when “he can identify a motion or evidence of direct instructions to his counsel to assert that right at a time when a formal assertion of his rights would render some chance of success.” Carty v. People, 56 V.1. 345, 367 (V.I. 2012). Morton asserts that he requested a speedy trial at arraignment. The Court’s record of proceeding is silent on that matter. However, it is clear that Morton invoked his right to a speedy trial no later than the filing of his first motion to dismiss for speedy t ‘ial violation on November 17, 2011. T..erefore, this factor weighs in Morton’s favor because he has properly asserted his right to speedy trial by motion as early as November 2011, if not earlier. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion (d) Prejudice The final and most important factor the Court must consider is whether the defendant suffered prejudice from the delay. Rivera v. People of the Virgin Islands, 64 V.I. 540, 582 (VI. 2016). In assessing prejudice to a defendant caused by a speedy trial violation, the Court considers three interests a right to a speedy trial is designed to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Carty, 56 V.I. at 367 (quoting Barker, 407 U.S. at 532). “The burden of ” proving prejudice lies with the defendant.” Jd. “[A] defendant must prove specific prejudice caused by the post-information delay.” Rivera, 64 V.I. at 585 (citing Francis v. Virgin Islands, 63 V.I. 724, 754 (V.I. Oct. 23, 2015)). First, Morton argues that he has been continuously incarcerated since his arrest on March 26, 2010 and that the incarceration is oppressive. However, Morton cannot claim prejudice due to oppressive pretrial incarceration because during the pendency of this case, he has been serving a sentence in another case. On March 22, 2010, Morton was sentenced to serve two years less one day for time served.25 On July 5, 2012, Morton was sentenced to fifty years less 458 days credit for time served.26 25 See Judgment and Commitment for case number ST-09-CR-419, Defendant’s Exhibit M2, admitted during evidentiary hearing on January 23, 2015. 2° See Judgment and Commitment for case number ST-11-CR-194; Defendant's Exhibit M2, admitted during evidentiary hearing on January 23, 2015. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion Second, Morton argues that his ability to earn a living has been disrupted, his resources and his family’s resources have been drained, his associations with friends, family, and the community have been curtailed, and the public attention his case has received has subjected him to public obloquy. See Mot. to Dismiss 5. This argument is unpersuasive. Not only does Morton not support these contentions with any specific facts, these assertions could not be true given Morton’s other criminal case that resulted in a conviction and sentence of nearly 50 years. Moreover, as noted in Rivera, these types of prejudice and anxiety, “suffered by the majority of incarcerated individuals” are not sufficient to prove a Sixth Amendment speedy trial violation. 64 V.I. at 585. Therefore, it cannot be said that Morton has shown that he suffered prejudice under either of the first two factors. Although Morton does not directly address the third Barker prejudice factor in the instant motion to dismiss, the Court notes that at the January 23, 2015 hearing under consideration here, Morton’s brother Michael Howsen testified. According to a Notice of Alibi filed on July 14, 2010, Morton intends to call Howsen as an alibi witness as trial. Howsen testified that when Morton was arrested in March 2010, he and Morton were living together in St. Thomas, and Howsen was nineteen years old. He stated that he does not recall specifics relating to the early hours of March 6, 2010, the date on which the murder Morton is charged with committing occurred. He added that his memory relating to the events of March 5 and March 6 was more specific and People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion complete in 2010 and 2011 than it is now.27 Nonetheless, the possible dimming of Howsen’s memory does not rise to the level of prejudice that requires dismissal. See United States v. Ewell, 383 U.S. 116, 122 (U.S. Feb. 23, 1966) (“the appellees' claim of possible prejudice in defending themselves is insubstantial . . . . They mention no specific evidence which has actually disappeared or has been lost, no witnesses who are known to have disappeared.”) Although “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify,” Morton must still be able to point to a particular prejudice impacting his ability to receive a fair trial as a “possibility of prejudice” is not enough to prove a Sixth Amendment speedy trial violation. Francis v. Virgin Islands, 63 V.I. 724, 754 (V.I. Oct. 23, 2015); United States v. Loud Hawk, 474 U.S. 302, 315 (U.S. Jan. 21, 1986). Therefore, as none of the three interests identified in Barker have been violated, the Court finds that Morton has failed his burden of showing the most important factor, prejudice. Finally, the Court notes that at the hearing, Morton argued that he was not required to demonstrate prejudice; rather, it was the People who had the burden of proving that there had been no prejudice to him. Morton specifically stated that he was not accepting the burden of proof, arguing that the People’s continued delays, 27 In response to the People’s questions, Howsen explained that it was Morton’s former attorney who contacted him about being an alibi witness and that he spoke to the former attorney on the phone but never wrote down or recorded his recollection of the events of March 5 and March 6, 2010. He also stated he never followed up with the former attorney or told anyone else about the alibi, despite the first degree murder charge pending against his brother. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion culminating in his transfer to the Wallens Ridge facility at a time when the current case was pending, had shifted the burden to the People. Per Velazquez, “[nJegligence over a sufficiently long period can establish a general presumption that the defendant's ability to present a defense is impaired, meaning that a defendant can prevail on his claim despite not having shown specific prejudice.” Velazquez, 749 F.3d at 175 (citing Doggett, 505 U.S. at 658); see also Doggett, 505 U.S. at 657 (“[w]hile not compelling relief in every case where bad-faith delay would make relief virtually automatic, neither is negligence automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him.”) Although “[dJelays attributed to the People weigh in favor of a defendant's speedy trial claim, [those] delays attributed to the defendant do not.” Rivera, 64 V.I. at 582, (citing Francis, 63 VI. at 748 (citing Vermont v. Brillon, 556 U.S. 81, 82 (2009), and Doggett, 505 U.S. at 651)). As previously established above, the Court here finds that the none of the People’s delays were the result of bad faith. Moreover, the Court finds that the reasons for delay as of February 5, 2015 - the date the subject motion to dismiss was denied - weighs against Morton. The record indicates the People have been willing and able to try this case and Morton has failed to persuasively show otherwise. Morton has the burden of showing that the delay in this case has prejudiced him and he has failed to do so. People of the Virgin Islands v. Jamal Morton Case No. ST-10-CR-164 Memorandum Opinion III. Conclusion After weighing the four Barker factors, the Court finds that Defendant’s Sixth Amendment right to a speedy trial has not been violated as of February 5, 2015. The People are responsible for a portion of the delay, but Morton’s litigation strategy and motions for continuances have resulted in greater delays. In fact, the People asked for a trial date in 2010. While the People have been negligent in some instances there has been no bad faith and the negligence has not been continual or sustained as of February 5, 2015. Given these circumstances and the lack of prejudice to Morton, neither the speedy trial clause nor the due process clause warrant dismissal of the pending first-degree murder charges. This Opinion is rendered to support the Order entered on February 5, 2015. Therefore, no order will accompany this Opinion. DATED: January ZZ 2018 LOE Yo aze aa Kathleen Mackay Judge of the Superior Court of the Virgin Islands