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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX PEOPLE OF THE VIRGIN ISLANDS, __) «cee +) Plaintiff, CRIMINAL No. SX-04-CR-194 Defendant. MEMORANDUM OPINION and ORDER qi Before the Court is Defendant Joseph Hanley’s Motion to Dismiss for Violation of His Constitutional Right to a Speedy Trial, filed July 18, 2019. The People of the Virgin Islands filed its Response September 4, 2019. Defendant Hanley filed his Reply September 13, 2019. A hearing on the Motion was conducted August 12, 2019. For the reasons that follow, Defendant’s Motion will be denied. BACKGROUND q2 On January 15, 2004, the alleged victim reported to the Virgin Islands Police Department that her father, Defendant Hanley, had engaged in sexual intercourse with her, against her will, when she was aged 14 to 19 years. The allegations included that Defendant Hanley had raped her in late 1999 and/or early 2000 and that, as a result, she became pregnant and gave birth to a child, born October 22, 2000. VIPD referred the matter to the Department of Justice Division of Paternity and Child Support where a hearing was held May 27, 2004 before an administrative hearing officer upon the petition of the alleged victim to establish the paternity of her minor child. Defendant Hanley personally appeared as respondent and denied paternity. The hearing officer issued her Order for DNA Testing requiring the alleged victim, Defendant Hanley and the minor child to submit to genetic testing on June 1, 2004 (which apparently took place on June 4, 2004) and to return for hearing on July 21, 2004. The parties submitted to DNA testing as ordered and, on June 18, 2004, the DOJ attorney advised VIPD that the test results were positive indicating that Defendant Harley was the father of the alleged victim’s minor child. 43 On June 23, 2004, VIPD Detective Fred Braithwaite, when unable to reach Defendant Hanley at his home or place of work, contacted Laura Juliet Hanley (a/k/a Juliette Hanley) and Memorandum Opinion and Order People of the Virgin Islands v. Joseph Hanley; SX-04-CV-194 Page 2 of 8 2019 VI Super 134 Lenora Maffei, Defendant Hanley’s wife and stepdaughter, at their residence. They advised that Defendant Hanley resided at Good Hope Town Houses and that they had not seen him since June 7, 2004. Mrs. Hanley advised that on June 9, 2004, Defendant Hanley called her cell phone to arrange to visit their two sons. Defendant Hanley picked up and returned the boys to the parking lot of the housing community the same day. Both individuals were advised that there was a criminal investigation under way concerning Defendant Hanley, and they were asked to contact Detective Braithwaite or VIPD if they were contacted by or learned of the whereabouts of Defendant Hanley. {4 On July 1, 2004, an Information was filed and an arrest warrant was issued for Defendant Hanley, based upon the affidavit of Detective Brathwaite, on the charges of Incest (14 V.I.C. § 961); Aggravated Rape in the First Degree (14 V.I.C. § 1700(a)(2)); and Rape in the First Degree (14 V.LC. § 1701(2)).' On July 6, 2004, the warrant was placed on the National Crime Information Center database noting “full extradition.” q5 On July 2, 2004, Detective Brathwaite visited Leonie Hanley’s home, Defendant Hanley’s mother. Leonie Hanley was uncooperative and stated that she did not know the whereabouts of her son. 76 OnJuly 21,2014, Defendant Hanley failed to appear for the hearing at Division of Paternity and Child Support even though he had been served with and signed for a notice to appear. In her September 1, 2004 Support Order, the administrative hearing officer stated that she “believed that the Respondent has fled the jurisdiction to avoid prosecution for the rape of the Petitioner, his daughter.”? {7 DOJ subpoenaed flight records from Henry Rohlsen Airport and discovered that Defendant Hanley had flown from St. Croix to Puerto Rico on Cape Air on June 9, 2004. The People of the Virgin Islands and law enforcement were unable to trace the Defendant’s whereabouts at the time, and the warrant for his arrest was placed in the NCIC system with full extradition. ' By Order entered herewith, Count Two, alleging Aggravated Rape in the First Degree/Domestic Violence (14 V.L.C. § 1700(a)(2); 16 V.I.C. §91(b)(S) and (6)), is dismissed on Defendant’s Motion, unopposed by the People, on the basis of the statute of limitations for the crime charged in effect at the time of the alleged offense. ? By the September 1, 2004 Support Order, the DOJ Division of Paternity and Child Support administrative hearing officer made findings of fact that LabCorp DNA test results, certified June 14, 2004, concluded there is a 99.9% probability of Joseph Hanley’s paternity of the alleged victim’s son born October 22, 2000. The hearing officer also concluded that Defendant Hanley owes a duty of support to that child and that he was able to meet that duty of support. Memorandum Opinion and Order People of the Virgin Islands v. Joseph Hanley; SX-04-CV-194 Page 3 of 8 2019 VI Super 134 {8 Defendant Hanley never returned to the Virgin Islands after leaving on June 9, 2004. His mother passed away in 2009, and Defendant Hanley did not return to the jurisdiction for her funeral, even though he was very close to her.? Defendant Hanley relocated initially to New York, and eventually to Maryland to live with his wife, whose health was failing, in August 2015. Defendant Hanley’s counsel states that he obtained New York and Maryland driver’s licenses, although no supporting evidence has been presented. {9 By means unclear from the record, apparently DOJ became aware of Defendant Hanley’s employer and by Attorney General Subpoena issued February 16, 2017, the Division of Paternity and Child Support solicited information concerning Defendant Hanley, including employment and residential address information, for the purpose of enforcing the 2004 Support Order. Defendant’s counsel states that DOJ began garnishing Defendant Hanley’s wages for child support sometime thereafter. Yet, the People did not arrest him on the outstanding warrant until June 2018, sixteen months after DOJ had obtained information concerning his whereabouts. {10 Defendant Hanley argues such a delay violates his Constitutional right to a speedy trial. Defendant notes that the People’s principal investigator, Detective Fred Brathwaite, is deceased. No video statements were taken of witnesses Detective Brathwaite interviewed, and he cannot be cross-examined about such statements or any other details of his investigation. 4111 When Defendant Hanley was arrested in Maryland in June 2018, he refused to waive extradition, and a Governor’s warrant was issued and executed. Defendant Hanley was extradited, returned to the Virgin Islands and arraigned October 10, 2018, and at that time requested a speedy jury trial. On the same date, Defendant Hanley was released on bail with specified terms and conditions pending trial. He filed the pending Motion July 18, 2019. DISCUSSION 412 “The right to a speedy trial protects a defendant by ‘preventing undue and oppressive incarceration prior to trial, minimizing anxiety and concern accompanying public accusation, and limiting the possibilities that long delay will impair the ability of an accused to defend himself.” Rodriguez v. People of the V.I., 2019 V.1. 19 at § 24 (V.I. 2019) (citations omitted).“To determine * This information was presented in swom testimony of Laura Juliet Hanley (a/k/a Juliette Hanley) at the August 12, 2019 hearing on Defendant’s Motion. Memorandum Opinion and Order People of the Virgin Islands v. Joseph Hanley; SX-04-CV-194 Page 4 of 8 2019 VI Super 134 whether a speedy trial violation occurred under the Sixth Amendment, we consider four factors established in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), including: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant. /d. at 530.” Those factors are considered seriatim. Length of Delay 413 “The length of delay is measured from the earlier period of the date of an arrest or an indictment. The longer the delay, the more ‘presumptively prejudicial’ the delay is considered and weighs in favor of the defendant.” Rodriguez v. People of the V.L, 2019 V.I. 19 at § 25 (citation omitted). 714 Defendant Hanley was charged July 1, 2004, was extradited in September 2018, and to date has not been tried. He argues that once DOJ Division of Paternity and Child Support acquired his address in Maryland and began garnishing his wages in February 2017, the People had an affirmative obligation to inform Maryland authorities that he was the subject of an outstanding arrest warrant for felony sex abuse charges. Whether the People had such an affirmative obligation to advise Maryland authorities in a more timely manner, the delay here of more than 15 years from the July 1, 2004 Information charging the pending crimes until today under Virgin Islands Supreme Court precedent is “presumed to be sufficiently prejudicial to require evaluation of the three remaining factors.’” Jd. at 25 (addressing a delay of more than eight years, citing other cases with varying periods of delay). Reason for Delay 4]15 Because the length of the delay is presumptively prejudicial, an analysis of the reasons for the delay is required to determine whether the People or Defendant Hanley is more responsible for the delay and why the delay occurred. /d. at § 26 (citations omitted). Delays attributable to the prosecution weigh in Defendant Hanley's favor, while delays attributed to him do not. Jd. (citations omitted). “The reason for delay is also important. A deliberate attempt to delay the trial in order to hamper the defense weighs heavily against the prosecution, but a more neutral reason such as negligence or overcrowded courts weighs less heavily, and a valid reason, such as tracking down a missing witness, need not be given any weight at all.” /d (citations omitted). With these parameters as a guide, a review of the procedural history of the case is required, “remaining Memorandum Opinion and Order People of the Virgin Islands v. Joseph Hanley; SX-04-CV-194 Page 5 of 8 2019 VI Super 134 cognizant that ultimately the prosecution bears the burden to justify the delay. And where delay remains unexplained on the record, we weigh it against the prosecution.” /d. (citations and internal quotation marks omitted). 416 From the record, the Court finds that Defendant Hanley fled the jurisdiction on July 9, 2004 to avoid prosecution.* He had been named as respondent in a petition filed with the DOJ Division of Paternity and Child Support, and following a May 27, 2004 hearing Defendant Hanley was required to undergo DNA testing concerning the alleged victim’s child on June 4, 2004. He knew (or should have readily been able to infer) that he was the subject of a criminal investigation of the People of the Virgin Islands relating to the same circumstances. Subpoenaed Cape Air flight records revealed that Defendant Hanley flew out of the Virgin Islands June 9, 2004. The record reflects that he did not return to the territory until he lost his attempt to avoid extradition 14 years later. 4.17 Based on the “familiar maxim of jurisprudence that ‘No man can take advantage of his own wrong,’ it is well settled that ‘the constitutional guaranty of a speedy trial... do{es] not operate in favor of a fugitive from justice.’” People v. Perez, 229 Cal. App. 3d 302, 309 (Cal. App. 1991) (citations omitted). The California appellate court relied upon Barker v. Wingo, noting that “a delay of well over five years did not deprive the defendant of a speedy trial, because he failed to object to the delay during most of that period. The [Barker] court stated: ‘[B]arring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial.” [407 U.S. at 536]. Certainly the court did not intend to sanction the severe remedy of dismissal of the charges where the defendant had fled the jurisdiction in order to avoid prosecution.” People v. Perez, 229 Cal. App. 3d at 309. Here, Defendant Hanley did not object to the delay during the 14 years that he had voluntarily removed himself from the Virgin Islands. The Court will not determine that Defendant Hanley was denied this Constitutional speedy trial right * Laura Juliet Hanley (a/k/a Juliette Hanley), Defendant’s wife, submitted an Affidavit accompanying Defendant’s Motion, and similarly testified at the hearing on the Motion, to the effect that Defendant Hantey left the Virgin Islands in June 2004, on a previously planned vacation to New York and that, while there, he located better employment and so determined not to return. That evidence contradicts the record as a whole, including the VIPD report indicating that Mrs. Hanley told Detective Brathwaite on June 23, 2004 that she had last seen Joseph Hanley at their son’s graduation on June 7, had spoken to him by cell phone and arranged for his visit with their two sons on June 9. Mrs. Hanley’s Affidavit further contradicts her statement to Detective Brathwaite that Joseph Hanley resides at Good Hope Town House. By her Affidavit, she claims that “Joseph and I were living together at 22-B Lorraine Village in St. Croix” in June 2004. Motion, exh. 1, 3. Memorandum Opinion and Order People of the Virgin Islands v. Joseph Hanley; SX-04-CV-194 Page 6 of 8 2019 VI Super 134 on this record that strongly indicates that he intentionally took steps to avoid a speedy trial. 418 The California District Court of Appeal in Perez reached “our conclusion that a defendant who flees the jurisdiction of a court for the purpose of avoiding prosecution waives his or her right to a speedy trial,” while acknowledging other case law holding that a defendant’s “evident lack of serious interest in a speedy prosecution of the charges against him, as shown by his fugitivity,... militate[s] against finding that he suffered a deprivation of his sixth amendment right... [W]henever an individual has been officially accused of a crime, not only is the government charged with the burden of bringing the accused swiftly to trial, but it is under an obligation to exercise due diligence in attempting to locate and apprehend the accused, even if he is a fugitive who is fleeing prosecution.” Jd. at 309-10 (citing Rayborn v. Scully, 858 F.2d 84, 89-91 (2d Cir. 1988)). 719 In June and July 2004, VIPD and DOJ made repeated, concerted ultimately unsuccessful efforts to locate Defendant Hanley at his residence, his employment and through his family to commence prosecution of the charges set out in the July 1, 2004 Information. Those initial efforts were stymied by Hanley’s surreptitious relocation from the territory and culminated with the People placing the arrest warrant in the NCIC system, with full extradition, on or about July 6, 2004. 920 Defendant cites Doggett v. United States, 505 U.S. 647 (1992) in support of his position. The full resources and jurisdictional reach of the United States government were involved in that federal prosecution. Unlike in Doggett, the People of the Virgin Islands do not have the authority to make arrests anywhere within the United States. Defendant Hanley is charged with Virgin Islands crimes prosecuted in local Virgin Islands courts. Even if the People of the Virgin Islands had known of Defendant Hanley’s whereabouts, it would have had no power to arrest him where he was found but could only make use of the remedy it did, requesting his arrest and return through a Governor’s warrant. "21 The record is silent as to how, if at all, the People sought to apprehend Defendant Hanley after July 2004, apart from placing the warrant in the NCIC system, seeking his arrest and extradition. Arguably, the People could have been more proactive in seeking Defendant Hanley’s return once notified of his whereabouts in Maryland in February 2017. Without explanation as to why the People waited 16 months until June 2018 to extradite Hanley, that period of delay is attributed to and assessed against the People. No lack of diligence is shown, however, in the Memorandum Opinion and Order People of the Virgin Islands v. Joseph Hanley; SX-04-CV-194 Page 7 of 8 2019 VI Super 134 People’s initial attempts to bring Defendant Hanley to trial. In fact, in light of his intentional flight in the face of impending criminal charges, the entire period from July 2004 through February 2017 is attributed to and factored against Hanley as a fugitive fleeing prosecution. As such, the delay of more than 12 years through February 2017 was caused by Defendant Hanley and the unexplained 16 month-delay thereafter is attributed and weighed against the People. On balance, this factor weighs against Defendant Hanley. Defendant’s Assertion of his Rights €22 “Next, we examine whether the defendant asserted his rights, evidencing a deprivation of his constitutional rights.” Rodriguez v. People of the V.1., 2019 V.I. 19, at § 42 (citations omitted). Rodriguez referenced Supreme Court precedent: A defendant shows that he has asserted his right to a trial (1) when he is represented by counsel and 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; or (2) if defendant is proceeding pro se, he is not required to make a procedurally perfect assertion of his right to a speedy trial; instead, he must make a reasonable assertion of his right to a speedy trial in a manner that would place authorities on notice of his claim.” Id. (citing Francis v. People, 63 V.1. 724, 752 (V.I. 2015) (quoting Carty v. People, 56 V.I. 345, 366 (V.I. 2012).). 4/23 Defendant Hanley did not return to the island after June 9, 2004 until his extradition 14 years later, despite the fact that St. Croix was his home and his family is here. He did not return for the funeral of his mother in 2009. There no evidence in the record that Defendant Hanley was terminated from or quit his job, that he sold or rented out his townhouse, or even that he informed his family that he was relocating. Instead, he fled the jurisdiction within a week after he submitted to DNA testing and failed to appear for the DOJ hearing on the paternity and child support issues. Over the next 14 years that he failed to return to the Virgin Islands, there is no evidence of any intention to assert his rights formally by counsel, or to otherwise to raise his “right to a speedy trial in a manner that would place authorities on notice of his claim.” Accordingly, this factor weighs against Defendant Hanley. Memorandum Opinion and Order People of the Virgin Islands v. Joseph Hanley; SX-04-CV-194 Page 8 of 8 2019 Vi Super 134 Prejudice to Defendant 424 “The last factor — prejudice caused by the delay —- is the most important of the four and must be demonstrated by the defendant.” “In evaluating prejudice, we consider the three interests the right to 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. Rodriguez v. People of the V.1, 2019 V.1. 19, at J 44 (citations omitted). “Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” /d. (citing Barker, 407 U.S. at 532) (other citations omitted). 425 There is no present “oppressive pretrial incarceration.” Upon his extradition, Defendant Hanley was granted pretrial release at his arraignment on October 12, 2018. Yet, the People’s principal investigator, Detective Fred Brathwaite, is deceased. No video statements were taken of witnesses Detective Brathwaite interviewed. He cannot be cross examined about such statements or any other details of his investigation. Therefore, it is likely “the defense will be impaired,” and this factor weighs in favor of the Defendant. 126 Nonetheless, weighing the factors in Barker, though the People may have been able to do more to locate and extradite Defendant Hanley to face the charges against him, the Court cannot find that Hanley’s constitutional right to a speedy trial has been violated, largely on account of his intentional actions and personal responsibility for the vast majority of the delay. {127 For the reasons set forth herein, Defendant’s Motion will be denied. As such, it is hereby ORDERED that Defendant’s Motion to Dismiss for Violation of His Constitutional Rights to a Speedy Trial is DENIED. DATED: October ] , 2019, ATTEST: ESTRELLA H. GEORGE Clerk of the Court urt Clerk Supervisor 77 Wile DOUGLAS A. BRADY,