both the chest and, he believed, in the back, the evidence
showed a stab wound only in Charles' chest.
Petitioner argues that the discrepancies between Maloney's
and Boyce's testimony is further indication of the prejudice
that arose from the delay. According to petitioner, the jury
should not have been allowed to convict him based on the hazy
memories and "incredible" testimony of these two witnesses.
At petitioner's request, the state trial court held a
hearing under People v. Singer, 44 N.Y.2d 241, 405 N.Y.S.2d 17,
376 N.E.2d 179 (1978), to determine whether the indictment
should be dismissed because of the delay. After hearing the
testimony of the detectives assigned to the case, and applying
the factors articulated in People v. Taranovich, 37 N.Y.2d 442,
373 N.Y.S.2d 79, 335 N.E.2d 303 (1975), the trial judge ruled
that although the delay in this case was "enormous," there was
no basis to dismiss the indictment. She explained that "until
whatever, 1982, or so, '83 — I don't remember exactly," the
police did not have ground for probable cause to arrest the
defendant. She saw no indication that they would have, even if
they had acted differently in pursuing the rumor that "Frank
Schurman" had committed the murder. She ruled that there was no
particular prejudice to petitioner, other than the prejudice
that always flows from delay, and that because the crime
charged was so serious, the length of the delay can be longer,
and the reason for it weaker, before the indictment must be
dismissed. (Sept. 18, 1985 Hr. at 25)
As petitioner noted in his brief, the federal constitutional
standard for dismissal of the indictment because of
pre-indictment delay is considerably less flexible than New
York's standard, as articulated in Taranovich, supra. Yet only
an error that amounts to a violation of the federal
constitution can serve as the basis for a writ of habeas
corpus. 28 U.S.C. § 2254(a). Consideration of whether New
York's standard was properly applied is therefore neither
necessary nor appropriate on this petition.
Delay between the crime and the indictment is wholly
irrelevant under the Speedy Trial Clause of the Sixth
Amendment. United States v. Marion, 404 U.S. 307, 320, 92 S.Ct.
455, 463, 30 L.Ed.2d 468 (1971). Petitioner must therefore base
his claim on the Due Process Clause, which plays only a limited
role in protecting against oppressive delay. United States v.
Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752
(1977). Delay justifies dismissal of the indictment under the
Due Process Clause only when the defendant can show both actual
prejudice and that compelling him to stand trial despite the
delay "violates those `fundamental conceptions of justice which
lie at the base of our civil and political institutions' . . .
and which define `the community's sense of fair play and
decency.'" Id. at 789-90, 97 S.Ct. at 2049. Such cases may
arise if the government causes the delay solely to gain
tactical advantage over the accused, or if the government
incurs delay "in reckless disregard of circumstances, known to
the prosecution, suggesting that there existed an appreciable
risk that delay would impair the ability to mount an effective
defense." Id. at 795 n. 17, 97 S.Ct. at 2052 n. 17; see also
United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292,
2299, 81 L.Ed.2d 146 (1984) ("the Fifth Amendment requires the
dismissal of an indictment, even if it is brought within the
statute of limitations, if the defendant can prove that the
Government's delay in bringing the indictment was a deliberate
device to gain an advantage over him and that it caused him
actual prejudice in presenting his defense").
No circumstances present here warrant a finding that the
delay violated petitioner's due process rights.
First, petitioner has not shown that he was actually
prejudiced by the delay to an extent that mandates dismissing
the indictment. With regard to Maloney's testimony that
petitioner told him that he stabbed Charles both in the chest
and back, there is no evidence that this testimony is
inconsistent with the facts, even though the medical evidence
reflected that Charles
had been stabbed only in the back. Petitioner may have told
Maloney this, believing that he had connected with Charles as
Charles tried to get away. Even if it was inconsistent with
the facts, it is difficult to see how this prejudiced
petitioner. If anything, it made Maloney, the government's
main witness against him, appear less credible. In any case,
the fact that witnesses' memories dim over time is not "the
sort of actual substantial prejudice that predicates reversal
for pre-indictment delay." United States v. Elsbery,
602 F.2d 1054, 1059 (2d Cir.), cert. denied, 444 U.S. 994, 100 S.Ct.
529, 62 L.Ed.2d 425 (1979).
A similar defect undermines petitioner's argument regarding
the inconsistencies between the testimony of Boyce and
Maloney. He argues that these discrepancies indicate that
through her testimony, Boyce was attempting to create an alibi
for Maloney. On redirect examination of Boyce, the prosecution
elicited testimony that indicated that Boyce may have been
telling the truth: although she thought the murder occurred
the night she first heard petitioner describe it, she was not
actually talking about July 10th, when the murder occurred,
but rather a night several days later. Again, whatever the
jury believed, the discrepancies in their testimony and any
evidence that Boyce was attempting to create an alibi for
Maloney can hardly have prejudiced petitioner.
Petitioner also suggests that he might have been able to
present an alibi defense had the indictment more closely
followed the murder of Charles. This alleged prejudice is too
speculative to warrant the extreme sanction of dismissal of
the indictment. As the Supreme Court stated in United States v.
Passage of time . . . may impair memories, cause
evidence to be lost, deprive the defendant of
witnesses, and otherwise interfere with his
ability to defend himself. . . . Possible
prejudice is inherent in any delay, however
short; it may also weaken the Government's case.
. . . The law has provided other mechanisms to
guard against possible as distinguished from
actual prejudice resulting from the passage of
time between crime and arrest or charge . . .
"the applicable statute of limitations . . . is
the primary guarantee against bringing overly
stale criminal charges."
Id., 404 U.S. at 321-22, 92 S.Ct. at 464 (quoting United States