opinion: Charles C. MARSHALL, Appellant, v. UNITED STATES of America, Appellee.
  No. 18047.
  United States Court of Appeals District of Columbia Circuit.
  Argued Dec. 12, 1963.
  Decided June 30, 1964.
  Mr. Kingdon Gould, Jr., Washington, D. C. (appointed by this court), for appellant.
  Mr. Stuart R. Poliak, Attorney, Department of Justice, of the bar of the Supreme Court of California, pro hac vice by special leave of court, with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker, and Joseph A. Lowther, Asst. U. S. Attys., were on the brief, for appellee. Mr. Robert D. Devlin, Asst. U. S. Atty., also entered an appearance for appellee.
  Before Edgerton, Senior Circuit Judge, Washington and Danaher, Circuit Judges.
  EDGERTON, Senior Circuit Judge:
  As the government says, this case has a long history. Marshall was sentenced July 26, 1963, for a rape charged to have been committed on September 23, 1959. He was arrested October 28, 1959, and indicted November 16, 1959. His third trial, which began July 8, 1963, resulted in the conviction that is here on appeal. The following outline covers the period of some three years and eight months between the indictment and this trial.
  (1) 75 days, from indictment to February 1, 1960, when the first trial began. Some delay was caused by illness of appellant’s assigned counsel and his need of time to prepare. The jury did not agree on a verdict.
  (2) 71 days, from the end of the first trial on February 2, 1960, to the second trial on May 12, 1960. During this period there were several continuances: from February 19 to March 22 because new assigned counsel needed time to prepare, to April 26 because a co-defendant’s counsel needed time to prepare, to May 2 because appellant was ill, and to May 12 because a co-defendant’s counsel had another engagement. At the close of the government’s case Marshall pleaded guilty to assault with intent to rape.
  (3) On November 12, 1960, after he had served six months of his sentence, Marshall moved to vacate his plea of guilty.
  (4) The motion to vacate was pending 16 months, till March 12, 1962. During all this time appellant was either in prison or in a mental hospital. In January, 1961, he was transferred from Lorton, where he was serving his sentence, to St. Elizabeths for treatment of a mental illness because the Legal Psychiatric Service certified that he was insane. On January 30, 1961 counsel was appointed to represent him on his motion to vacate. On March 13 and again on April 11, 1961, hearing on his motion was continued at his request to allow more time for mental examination. The motion to vacate was heard on February 16 and March 9, 1962. On March 12, 1962 the guilty plea was vacated under 28 U.S.C. § 2255.
  (5) On or about March 15, 1962 appellant’s third trial was set for July 16, 1962, and he was committed to St. Elizabeths for mental examination, although he had been there for treatment since January 1961. He remained there until June 14, 1962, when he was returned to jail as competent to stand trial. But his third and last trial, resulting in the conviction now here on appeal, was not held until July 8, 1963. During this period of over a year there were the following continuances:
  (6) 116 days, June 14 to October 8, 1962. Though trial had been set for July 16, on June 12 the trial date was moved back to October 8 “because of the summer schedule and the unavailability of jurors and witnesses.”
  (7) 38 days, October 8 to November 15, 1962. On October 1, one week before the date set for trial and 45 days after trial counsel was appointed, he asked and was granted leave to withdraw because he had no experience in criminal law. He should not have been appointed in the first place. A capital trial is no place for a lawyer to begin acquiring experience in criminal practice.
  Trial was set for November 15. Another lawyer was appointed on October 2 and withdrew, for what reason does not appear, within 6 days. A third was appointed October 8, 1962.
  (8) 67 days, November 15, 1962 to January 21, 1963. On November 15, 38 days after counsel’s appointment, he moved at appellant’s request for more time to prepare. The court continued the trial to January 21, 1963, 67 days later. It does not appear that so long a delay was needed or asked. On December 14, 1962, counsel asked and was granted leave to withdraw because of “serious illness in the family and because he was behind in other office work.” He said he had spent very little time on the case. Five days later the court again appointed new counsel.
  On January 10, 1963, appellant pro se moved to dismiss the indictment for lack of a speedy trial.
  (9) 7 days, January 21 to January 28, 1963. The prosecutor was occupied with another case.
  (10) On January 28, 1963, defense counsel was ill with influenza. Instead of granting a reasonable continuance, such as a week or two, the court continued the case for 42 days, till March 11.
  (11) 42 days, March 11 to April 22, 1963. On February 13, the government asked for a continuance beyond March 11 because the complaining witness was expecting a child in late March. Trial was set for April 22. As far as appears, it might have been held in February.
  (12) 21 days, April 22 to May 13, 1963. Government counsel was ill.
  On April 24, appellant renewed his motion to dismiss the indictment for lack of a speedy trial.
  (13) 61 days, May 14 to July 8, 1963. On May 14 defense counsel asked leave to withdraw. He said the defendant had become “highly enraged * * * and charged that he believed that I was conspiring with others against him to bring about his conviction.” Counsel also informed the court that a St. Elizabeths doctor “considers Mr. Marshall still very seriously ill”, and questioned his client’s “ability to cooperate * * * in the defense”. Without consulting appellant or informing him that counsel’s withdrawal would cause more months of delay, the court granted counsel’s request, continued the case to July 1, and appointed a fifth lawyer, who withdrew eight days later for no recorded reason. Finally, on July 8, 1963, a sixth lawyer, who told the court he could not put his client on the stand or even communicate effectively with him and that he “blacks out”, tried the case. It had been eontinued from July 1 to July 8 because a new jury list was needed.
  On May 21, 1963, appellant had made a third motion to dismiss the indictment for lack of a speedy trial.
  Until July 8, 1960, when he was sentenced after his second trial, appellant was out on bond. From that time until December 4, 1963, he was either in the District of Columbia jail, at Lorton, or at St. Elizabeths. In October, 1962, he asked that bond be set at $1,000 but the District Court set it at $5,000, which he could not meet. On December 4, 1963, he was released pending appeal on bond of $500 by order of this court.
  If we were “talking English, not law”, it would not be suggested that a man who was tried three years and eight months after indictment had a “speedy” trial. We are to decide whether Marshall had a speedy trial in the technical sense that the law has given to this Sixth Amendment right. We think he did not.
  On March 12, 1962, when his motion to vacate his former plea of guilty was granted, Marshall had been in St. Elizabeths for treatment more than a year. There was or should have been no occasion to commit him to St. Elizabeths again for a 90-day examination in order to determine whether he was competent to stand trial, because the previous commitment had given the hospital ample opportunity to determine his condition. The three months’ delay (paragraph (5) above) from his new commitment to the hospital on March 15, 1962 to his return from the hospital on June 14, 1962, as competent to stand trial, should not have occurred.
  Since appellant’s first two trials were short, it should have been foreseen that his third trial, which took only three days, would be short. Since the case was 31 months old in June 1962, the court should then have arranged its calendar so as to avoid postponing the trial until October. Most of the 116-day delay described in paragraph (6) should have been avoided.
  The 38-day delay described in paragraph (7), from October 8 to November 15, 1962, resulted from the court’s inappropriate assignment of counsel. The court should have avoided, also, much of the 67-day delay described in paragraph (8), most of the 42-day delay described in paragraph (10), and most of the 42-day delay described in paragraph (11). The short delays described in paragraphs (9) and (12) call for no comment except that Marshall did not cause them.
  In Smith v. United States, 118 U.S.App.D.C.-, 331 F.2d 784, which this court in banc decided February 20, 1964, we held that the speedy trial question turns on whether “the delay has been arbitrary, purposeful, oppressive or vexatious.” (331 F.2d at 787.) By this test Marshall did not have a speedy trial. Though the delay was not purposeful in any meaningful sense, much of it was arbitrary, and in the aggregate it was oppressive and vexatious.
  We held that Smith was not denied a speedy trial. He was tried five months after indictment. Marshall was tided 43 months after indictment, 32 months after he moved to vacate a plea of guilty, almost 16 months after a trial date was first set, and almost 13 months after he was found competent to stand trial. In Smith, “Alerted by the appellant’s claim of denial of speedy trial * * * the judge then put the case upon a day to» day basis.” 331 F.2d at 788 Marshall moved not once but three times, in January, April, and May, 1963, to dismiss the indictment for lack of a speedy trial. His motions had no apparent effect. If five months’ delay was not arbitrary, oppressive or vexatious in the circumstances of Smith, it by no means follows-that far longer delay was not arbitrary, oppressive or vexatious in the circumstances of this ease.
  Delay was exceedingly prejudicial to-Marshall. Treatment for mental illness, which he had been undergoing at St. Elizabeths, was interrupted for months, while he waited in jail for his third and final trial. But that is a relatively secondary matter. Delay appears to have been fatal to Marshall’s defense. In 1960, at his first trial, he testified effectively in support of his contention that the prosecutrix consented. In that trial,, the jury did not convict him. In June, 1962, he was found at St. Elizabeths to be competent to stand trial. But in July, 1963, when he was tried once more, according to the undisputed statements of his counsel he could not communicate effectively and was not able to take the stand. This time he was convicted.
  Because Marshall’s Sixth Amendment right to a speedy trial was denied, the judgment of conviction must be vacated and the indictment dismissed.
  Reversed, with directions to vacate the-, judgment and dismiss the indictment.,
  . The Court: Is the defendant going to take the stand?
  Mr. Harris: No, Your Honor. I can’t put him on the stand. I have been really unable to communicate with him. He blacks out.
  The Court: I wanted to put on the record for him to state that he wanted to take the stand, if he was going to take the stand. I knew you were appointed.
  Mr. Harris: I am appointed, Your Honor. I doubt that he can take the stand, Your Honor. He has been unable to give me information.
  The Court: I am not interested as long as he is not going to take the stand. If he were going to take the stand I would like to have it on the record for your protection.
  Mr. Harris: Thank you, Your Hon- or.
  24 D.C.Code § 301 provides: “Whenever * * * prior to the imposition of sentence * * * it shall appear to the court from the court’s own observations, or from prima facie evidence submitted to the court, that the accused * * * is mentally incompetent so as to be unable to understand the proceedings against him or properly to assist in his own defense, the court may order the accused committed * * * for examination and observation * * Because we are reversing on other grounds, we need not decide whether it was plain error requiring reversal for the court to permit the trial to proceed further without a new investigation of the defendant’s competence. Thirteen months had elapsed since it had been determined that he was competent.
  . As appellant’s brief says:
  “In view of the fact that until June 14, 1962, Marshall was at St. Elizabeth’s for psychiatric examination, and that it can he argued that until a finding of present competence was made Marshall was not subject to retrial, appellant is willing to accept June 14, 1962 as being the critical date.”
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