One of the least understood but most powerful constitutional rights, the Due Process Clause, is the escape route for those as yet un-charged in the ongoing Scott Rothstein prosecutions.
The Due Process dismissal defense, widely used outside of Florida, is dis-favored by most Florida criminal defense lawyers. The motion is based on a little known United States Supreme Court case from 1971, U.S. v Marion. Marion holds that the Due Process clause guarantees a dismissal when the delay between the date of the incident and the filing of an indictment has the result of crippling the defendant’s defense. Marion, and the Lovasco, Howell and Griffin cases compel reluctant judges to dismiss charges. This motion merely has to allege that the length of the delay has prejudiced the defense, and present the court with the reasons the defendant has been prejudiced. Most often witnesses’ memories fade; evidence that would have helped the defendant is lost, misplaced or destroyed, or the delay blind-sided the defendant to his detriment. The burden shifts to the government once a defendant has asserted the delay has made it difficult or just harder to defend himself. The only response that can save the case for the government is that the government has some compelling reason to explain the delay.
In the Rothstein matter, it is hard to understand why the government has sat on this case so long. Filed in 2009, but known to the government since 2007; it is now 2014. Buried in Florida’s case law are a parallel series of cases that make this line of defense available under Florida as well as federal law: the cases are the Barber, Newman, and the Howell cases. I’ve had judges take prosecutors to the proverbial legal woodshed for a major tongue lashing when the judge hears the hollow reasons for the delays. Sometimes we hear that the detective took a vacation and misplaced the case (for four years), or someone had a promotion and left the file in the drawer. The most likely excuse from the government’s delay in filing indictments in the Rothstein matter is…..well I’d like to hear it! Would you?