Accused bush-ax killer Michael Curry’s murder indictments for allegedly killing his pregnant wife and two children 24 years ago should not be dismissed just because some witnesses have died or can’t be found and some evidence is missing, Muscogee District AttorProney Julia Slater argues in briefs filed today.
Curry’s attorney, Public Defender Robert Wadkins, earlier argued that Curry’s indictments should be thrown out because the defendant’s right to a fair and speedy trial was violated by the passage of time.
Around 5:30 p.m. Aug. 29, 1985, Curry reported finding his wife Ann, 24; daughter Erika, 4; and son Ryan, 20 months; hacked to death in the family’s Rockhurst Drive home, off Macon Road in east Columbus.
Police held Curry for questioning that night, but later released him without charge. Curry was arrested May 20, 2009, after a grand jury indicted him for the slayings.
Wadkins said the loss of witnesses and evidence prejudiced the case in favor of the prosecution, because their testimony and that evidence could have proved him innocent.
Citing the 1986 case United States v. Loud Hawk, Slater argued that the Sixth Amendment to the U.S. Constitution guarantees a “speedy and public trial” to keep authorities from imposing “prolonged restraints on liberty” between an arrest and a trial. “It is not a shield from the ‘stress, discomfort … disruption of normal life’ that an ongoing investigation may cause,” Slater wrote.
The Loud Hawk ruling rested primarily on the 1971 precedent United States v. Marion, in which the Supreme Court said that with no indictment outstanding, the Sixth Amendment’s speedy trial guarantee comes into play only if the accused is arrested and held. “The Sixth Amendment speedy trial provision affords no protection to those not yet accused and does not require the government to investigate or accuse a person within a particular time period,” Slater wrote.
Wadkins had argued that Curry technically was “arrested” the night police detained and questioned him in 1985. But because Curry was released without any charges, that argument is “moot,” wrote Slater, as the circumstances don’t engage the Sixth Amendment whether Curry was arrested or not.
Like the federal constitution, Georgia’s state constitution is “concerned with the impairment of liberty, not the mechanical trigger of arrest,” Slater wrote. “Whether the defendant’s initial detention transformed into an arrest is totally moot.”
Wadkins also had argued that the delay in prosecuting Curry denied him due process under the law. This issue also was addressed in the Marion case, Slater wrote, and the justices then said that “the defendant must show the delay caused 1) actual and substantial prejudice; and 2) that said delay was deliberately undertaken by the state to gain a tactical advantage.”
Curry’s defense team can’t show either, Slater wrote, as proving his case prejudiced means Curry must “show actual and substantial prejudice not arising simply from the passage of time.” He has not met that standard, nor has he proved that the delay in prosecuting him “was deliberately undertaken by the state to gain a tactical advantage.” Slater wrote.
Curry today remains in the Muscogee County Jail awaiting trial on the charges.