Klopper v. State of North Carolina Motion for Leave to File Brief as Amici Curiae and Brief Amici Curiae in Support of the Petition for Writ of Certiorari

    Isr the

Bnpnmt (Hmvt ni Up Imtpft Bttxinx
October Term, 1965 

No. 1216

Peter K lopfer,

—v.—
Petitioner,

State of North Carolina,
Respondent.

MOTION OF THE AMERICAN CIVIL LIBERTIES 
UNION AND THE AMERICAN CIVIL LIBERTIES 
UNION OF NORTH CAROLINA FOR LEAVE TO 
FILE A BRIEF AS AMICI CURIAE AND BRIEF 
AMICI CURIAE IN SUPPORT OF THE PETITION 
FOR W RIT OF CERTIORARI

W illiam W . V an A lstyne 
Duke University 
School of Law 
Durham, North Carolina

Melvin L. W tjlf

156 Fifth Avenue 
New York, N. Y.

Attorneys for Amici



TABLE OF CONTENTS

PAGE

Motion for Leave to File a Brief as Amici Curiae.......  1

Questions Presented ..........................................................  3

Statement of the C ase........... ............................................. 4

Interest of the Am ici................................ ..........................  5

A rgument

I. The not. pros, with leave, giving the solicitor the 
naked power to suspend a criminal prosecution 
or to reinstitute said prosecution at any time 
thereafter, denies petitioner his right to a speedy 
trial of the charges pending against him in viola­
tion of the Sixth Amendment as made applicable 
to the States through the Fourteenth Amendment 
to the Constitution ..................................................... 5

a. The Nol. Pros. With Leave: Its Nature and
Its U se ....................................................................  5

b. The Bight to a Speedy Trial: History and
Policy Considerations ......................................... 9

c. The Bight to a Speedy Trial: Its Application
to the States Through the Fourteenth Amend­
ment ........................................................................  11

II. The nol. pros, with leave violates due process 
in operating to punish the petitioner in the ab­
sence of a fundamentally fair t r ia l.......................  15



III. The nol. pros, with leave, granted without reason 
in this case, represents a continuing in terrorem 
deterrent to the exercise of constitutionally pro­
tected rights of speech, assembly, association, and 
equal protection in North Carolina .......................

Conclusion................................................... .............................

A ppendix ....................................................................................

T able of A uthobities

Cases:

Bates v. City of Little Bock, 361 U. S. 516 (1960) .......

Escobedo v. Illinois, 378 U. S. 478 (1964) .......................
Ex parte Pickerill, 44 F. Supp. 741 (N. D. Tex. 1942) ....

Fouts v. United States, 253 F. 2d 215 (6th Cir. 1958) ....

Gideon v. Wainwright, 372 U. S. 335 (1963) ...............
Gordon v. Overlade, 135 F. Supp. 577 (N. D. Ind. 1958)

Hamm v. City of Bock Hill, 379 U. S. 306 (1964) .....16,
Hastings v. McLeod, 261 F. 2d 627 (9th Cir. 1958) ....

In re Sawyer’s Petition, 229 F. 2d 805 (7th Cir. 1956) ....

Jackson v. Denno, 378 U. S. 368 (1964) ...........................12-

Mattoon v. Bhay, 313 F. 2d 683 (9th Cir. 1963) ...........

N. A. A. C. P. v. Alabama, 357 U. S. 449 (1958) ...........
New York v. Fay, 215 F. Supp. 653 (S. D. N. Y. 1963) ....

17

19

21

18

13
10

10

12
12

18
11

11

-13

11

18
11



I l l

PAGE

Odell v. Burke, 281 F. 2d 782 (7th Cir. 1960) .................  11

Palko v. Connecticut, 302 U. S. 319 (1937) ............... . 12
Pointer v. Texas, 380 U. S. 400 (1965) ...........................  12

Shepard v. United States, 163 F. 2d 974 (8th Cir. 1947) 13
State y . Buchanen, 23 N. C. 59 (1840) ...............................  6
State v. Furmage, 250 N. C. 623, 109 S. E. 2d 563

(1959) ........    6
State v. Ivlopfer, 145 S. E. 2d 909 (1966) ...................5, 6,14
State of Maryland v. Kurek, 233 F. Supp. 431 (D. C.

Md. 1964) ..........................................................................  13
State v. Moody, 69 N. C. 529 (1893) ...............................  6
State v. Thompson, 10 N. C. 613 (1825) ...........................  6
State v. Thornton, 35 N. C. 258 (1852) ........................... 6
State v. Williams, 151 N. C. 660, 65 S. E. 908 (1909) .... 6

United States v. Chase, 135 F. Supp. 230 (E. D, 111.
1955) ....................................................................................  10

United States v. Ewell, 86 S. Ct. 773 (1966) ...................  10
United States v. Fay, 313 F. 2d 620 (2d Cir. 1963) .......  13
United States v. Lustman, 258 F. 2d 475 (2d Cir. 1958) 10
United States v. McWilliams, 69 F. Supp. 812 (D. C.

D. C. 1946) ........................................................................  13

Wilkinson v. Wilkinson, 159 N. C. 265, 74 S. E. 740
(1912) ................................................................................. 6,14

Constitutional Provisions:

United States Constitution:
First Amendment ........................................................  3
Sixth Amendment .......................................3, 5,10,11,14
Fourteenth Amendment ...................................3, 5,1] , 12



IV

North Carolina Constitution:
Article 1, §35 ..............................................................  7

Statutes:

78 Stat. 241, Tit. II, §201(b)(2), Civil Rights Act 
of 1964 .................................................................. 4,16,18

North Carolina Gen. Stat. 15-1...................................  6

North Carolina Gen. Stat. 15-10 ................... ...........  8

North Carolina Gen. Stat. 15-175...............................  5

Other Authorities:

Blackstone, 4 Commentaries 438 ...............................  9

II Coke Inst. 4 3 ........................................................  9

Habeas Corpus Act, 31 Car. II, Ch. 2 ...................  9

Hale, History of the Common Law, p. 87 (5th ed.) 9

Magna Carta ................................................................  9

The Federalist, No. 84 ..................................................  10

PAGE



I n the

B n pxm t  (Enurt nf %  Htutpft B M xb
October Term, 1965

No. 1216

P eter K lopeer,
Petitioner,

—v.—

State of North Carolina,
Respondent.

MOTION FOR LEAVE TO FILE A BRIEF 
AS AMICI CURIAE

The American Civil Liberties Union and the American 
Civil Liberties Union of North Carolina respectfully move 
for leave to file a brief as amici curiae in this case.

Petitioner has consented in writing to the filing of this 
brief. The State of North Carolina, respondent, following 
what the applicant understands to be the routine practice 
of the Attorney General’s office, has refrained from either 
consenting or objecting to the filing of such brief.

The interest of the American Civil Liberties Union is two­
fold : the general interest it holds as a civil liberties organi­
zation, and, more specifically, a belief that justice requires 
at a minimum that this case be heard on its merits.

Since its founding in 1920, the American Civil Liberties 
Union has sought to prevent and to redress violations of 
civil liberties protected by the Constitution through litiga­



2

tion, educational programs, public statements and petitions 
to the Government. Its intention has never been to further 
the interest of any special group, but rather to defend the 
civil liberties of all persons equally. The American Civil 
Liberties Union hopes that an argument presented by an 
organization both experienced and specially concerned with 
maintaining constitutionally guaranteed liberties may be 
of aid to the Court in its adjudication of the sensitive issues 
raised by this case.

Amici move for leave to file this brief for two specific 
reasons:

a. The harm resulting to petitioner and to other criminal 
defendants whose prosecutions may be indefinitely con­
tinued by the granting of nol. pros, with leave, and simi­
lar devices, warrants the fullest possible exposition of 
the serious and novel constitutional issues raised by 
these practices.

b. The unqualified availability of nol. pros, with leave, by 
its presence, its broad application by the solicitor, and 
its excessively permissive use by the State Supreme 
Court, is a substantial threat to the free expression of 
unpopular beliefs and ideas. This issue demands ex­
tensive analysis.

We fear that the parties may not fully address themselves 
to the above issues. We believe our brief will aid the Court 
by emphasizing these aspects of the litigation. If our argu­
ments were accepted, they would be dispositive of this case.

Respectfully submitted,

Melvin L. W ulf 
Attorney for Movant



3

Questions Presented

1. May a State through its criminal procedure empower 
the solicitor to suspend a criminal proceeding without ex­
planation or cause and to reinstitute the prosecution at any 
time, without providing any standards for the solicitor to 
follow, and thus deny to the accused a speedy trial of the 
charges pending against him in violation of the Sixth 
Amendment as made applicable to the States through the 
Fourteenth Amendment to the Constitution!

2. May a State employ a procedure in a criminal trial 
the effect of which is necessarily to punish and to stigmatize 
a person indirectly for that which the State eould not other­
wise punish him, thus denying Petitioner due process of 
law!

3. May a State through its criminal procedure give its 
solicitor the absolute discretion to suspend or try a crimi­
nal offense once the indictment has issued, when the neces­
sary effect of such power may discourage or stifle the free 
expression of unpopular ideas and beliefs protected by the 
First Amendment ?



4

Statement of the Case

On February 24, 1964, petitioner, Professor Peter Klop- 
fer, was indicted for criminal trespass, punishable by im­
prisonment for as long as two years. The trespass was al­
leged to have taken place when he and others, seeking non- 
discriminatory service in a place of public accommodation, 
sought access to the cafe premises of Austin Watts, Chapel 
Hill, North Carolina. Petitioner pleaded “ not guilty” at his 
trial in March, 1964. After due deliberation upon all the 
evidence, the jury was unable to reach a verdict. Thereupon 
the Court withdrew a juror and entered an order of mis­
trial. Petitioner’s case was not retried during any sub­
sequent Criminal Session that year.

Shortly thereafter, but one year after the original mis­
trial, the solicitor advised petitioner’s attorney of his in­
tention to move the Court for a nol. pros, with leave. There­
upon, petitioner, through his attorney, opposed in open 
court at the April, 1965, Criminal Session the entry of such 
motion in petitioner’s ease. The solicitor then stated that 
he wished to retain petitioner’s case in its trial docket 
status.

Petitioner’s case was not listed for trial during the Au­
gust, 1965, Criminal Session. The Court, in response to 
petitioner’s motion seeking ascertainment of the status of 
his case, inquired into the matter in open court. At that 
time the solicitor moved the Court for a nol. pros, with 
leave, but without explanation as to why it was appro­
priate to continue its case. The motion was granted. Peti­
tioner objected and took exception to the entry.



5

On appeal to the North Carolina Supreme Court the entry 
of nol. pros, with leave was affirmed, State v. Klopfer, 145 
S. E. 2d 909 (1966).

Interest of the Amici

We respectfully refer the Court to the preceding mo­
tion for leave to file this brief wherein the interest of the 
American Civil Liberties Union as amici curiae is set forth 
at length.

A R G U M E N T

I.

The nol. pros, with leave, giving the solicitor the 
naked power to suspend a criminal prosecution or to 
reinstitute said prosecution at any time thereafter, 
denies petitioner his right to a speedy trial of the 
charges pending against him in violation of the Sixth 
Amendment as made applicable to the States through 
the Fourteenth Amendment to the Constitution.

a. The Nol. Pros. With Leave: Its Nature and Its Use.

North Carolina Gf. S. 15-175 is the State’s nol. pros. 
statute. However, it is not clear either from the record or 
from the opinion of the North Carolina Supreme Court, 
whether the State, in petitioner’s case, invoked this statute 
or some common law legacy. In either case, the effect is 
the same. As judicially interpreted, this procedure gives 
local solicitors, on behalf of the State, practically unlimited 
power to determine the disposition and course of pending



6

criminal prosecutions. Once an indictment lias issued, the 
solicitor has the authority to move for the entry of nol. pros. 
with leave, without any showing of cause. Upon the grant­
ing of the motion by the Court, the solicitor then is em­
powered either to forestall trial of the cause for however 
long he wishes or to reinstitute prosecution at any time 
thereafter. No standards are imposed upon his discretion 
either by statute or by case law. State v. Thompson, 10 N. C. 
613 (1825); State v. Buchanen, 23 N. C. 59 (1840); State v. 
Thornton, 35 N. C. 258 (1852); State v. Moody, 69 N. C. 529 
(1893); State v. Furmage, 250 N. C. 623, 109 S. E. 2d 563 
(1959). The solicitor is equally free, once nol. pros, with 
leave has been entered, to reinstitute the prosecution. He 
does not have to show cause; he need only apply to the 
clerk of the court to have a capias issued as a matter of 
right. Wilkinson v. Wilkinson, 159 N. C. 265, 266-267, 74 
S. E. 740, 741 (1912); State v. Klopfer, 145 S. E. 2d 909, 910 
(1966). Whichever course the solicitor chooses to pursue, 
his will is the moving force.

If the solicitor reinstitutes prosecution of a trial that has 
been halted under the nol. pros, with leave procedure, he 
may do so at any time, however remote from the date of the 
indictment, without running afoul the two year statute of 
limitations generally applicable to misdemeanors. N. C. 
Gen. Stat. 15-1. When an indictment first issues, the statute 
of limitations stops running. It does not begin running 
again when the nol. pros, with leave is entered, but remains 
suspended indefinitely. State v. Williams, 151 N. C. 660, 65 
S.E.908 (1909).

Not only does the nol. pros, with leave procedure enable 
the solicitor to delay or bar prosecution indefinitely, but



7

the criminal defendant, under indictment for a misde­
meanor, is without means to bring his cause to trial to se­
cure his opportunity for exoneration. Unlike the solicitor, 
he cannot set his case for trial. Nor can he find antidotal 
relief in either the Constitution or General Statutes of 
North Carolina. Once the solicitor has suspended the trial 
by taking a nol. pros, with leave, the defendant is without 
hope of a speedy trial unless the solicitor promptly changes 
his mind and decides to reinstate the prosecution. The 
fortune of the defendant thus rests entirely with the will of 
the solicitor.

A  number of jurisdictions have acknowledged the threats 
to the fair administration of justice inherent in such pro­
cedure as that followed in this case. Forty-three states af­
ford the criminal defendant constitutional guarantee of a 
speedy trial in all criminal prosecutions. See Appendix 1, 
2, post. In addition, nine states guarantee this right by 
statute. See Appendix 4, post. Beyond these general and 
only partly efficacious provisions, approximately one-third 
of the states also have seen fit altogether to abolish nol. 
pros, expressly by statute, or have greatly reduced its entry 
by the prosecution. See Appendix 5, post. Several states 
have placed the sole power for its entry in the court. See 
Appendix 6, post.

North Carolina has no guarantee of a speedy trial in its 
constitution. And even though it has some language to the 
effect that justice shall be administered “ . . . without sale, 
denial, or delay,” N. C. Const, art, 1, <§>35, this language has 
never been interpreted by its courts to require a prosecutor 
to indicate why nol. pros, with leave would not deny or delay 
justice in a particular case. See Appendix 3, post. It has 
never been used to limit the use of nol. pros, with leave. The



only meaningful protection against delay that North Caro­
lina affords its criminally accused is found in N. C. Gen. 
Stat. 15-10, applicable only to incarcerated felons. See Ap­
pendix 4, post. The State offers no relief from delay, how­
ever unreasonable, to one who has been indicted for a misde­
meanor.

Such a condition of state law exerts very forceful pres­
sure upon every criminal defendant in a misdemeanor 
prosecution who would otherwise plead “ not guilty” and 
immediately join issue, knowing full well that whatever the 
outcome he could eventually resume his normal life, free 
from anxiety and future jeopardy. But the defendant who 
must frame his plea under the threat that the prosecutor 
may indefinitely delay the trial of his cause through the 
discretionary nol. pros, with leave, lacks this measure of 
opportunity and security. Knowing that he has no assurance 
of a prompt trial and that he will be subject to prosecution 
at any time in the future, he is under extreme pressure to 
forgo his cause and to plead guilty. If the state’s procedure 
cannot guarantee the security of a speedy trial, even upon 
minimum standards of promptness, and in its stead vests 
such power in the solicitor as does the nol. pros, with leave 
procedure, then the criminal defendant is simply deprived 
of his right to defend himself without jeopardizing his job, 
his family, his standing, and reputation in the community.

This is the plight of petitioner who has been two years 
under indictment. He remains “neither innocent nor guilty,” 
but without doubt, to all the community, accused and in­
dicted. The solicitor has denied Professor Klopfer a speedy 
trial upon the charges— an opportunity to establish his in­
nocence, to recover his dignity and to be free of the specter



9

of future prosecution. The solicitor has greatly interfered 
with petitioner’s ability to schedule lecture and speaking 
tours outside North Carolina in his capacity as Professor 
of Zoology at Duke University. He has, in effect, snared 
Professor Klopfer in a web of uncertainty. Of only one 
thing can petitioner now be sure: he will remain in jeop­
ardy for the rest of his life, subject indefinitely to the 
power of the solicitor or his successors to reinstate prose­
cution.

b. The Right to a Speedy Trial: History 
and Policy Considerations.

The right to a speedy trial is of long standing. Its basic 
nature is disclosed by its deep roots in the early common 
law. It was first given effect in the Magna Carta where it 
was written “ To no one will we sell, to no one deny or de­
lay, right or justice.”  This provision was subsequently 
implemented by special writs of jail delivery and later by 
commissions of jail delivery under which special judges 
emptied the jails twice each year and either convicted and 
punished the prisoners or set them free. II Coke Inst. 43. 
In 1679 Parliament passed the Habeas Corpus Act, 31 Car. 
II, Ch. 2, which required that prisoners indicted for trea­
son or felony be tried at the next sessions or be released 
on bail. That Act, which Blackstone called “ the Bulwark 
of the British Constitution” , 4 Commentaries 438, was still 
cherished by the British people at the time our Constitu­
tion was adopted, Hale’s H istory oe the Common Law, 
p. 87 et seq (5th ed.) and by American patriots and law­
yers nurtured on Blackstone. Some believed that the right 
to a speedy trial and other similar rights were so clearly 
a part of our “ liberty” that no Bill of Bights was neces­



1 0

sary. T he F ederalist, No. 84. But to be sure that these 
and other fundamental rights would be preserved to the 
People, the first nine Amendments were added to the Con­
stitution; and the right to a speedy trial was given first 
place among the rights in the Sixth Amendment. In time, 
most of the states adopted the language or policy of the 
Sixth Amendment into their own constitutional or statu­
tory schemes. See Appendix, 1, 2, 4, post.

The policies underlying the right to a speedy trial are 
now, as they were in Blackstone’s England, the embodi­
ment of realistic concern for the rights of the accused in 
a free society. This policy has two equally significant as­
pects: the desire to protect the individual from the indig­
nity, harassment and anxiety of an unresolved arrest and 
indictment, Ex parte Pickerill, 44 F. Supp. 741, 742 (N. D. 
Tex. 1942); and the grave concern that the individual, be­
cause of delay, will be- denied the fair administration of 
justice. This latter aspect of the policy recognizes that 
the value of a speedy trial is that it best preserves to the 
defendant the means of proving his case. United States v. 
Ewell, 86 S. Ct. 773, 776 (1966); Fonts v. United States, 
253 F. 2d 215, 217 (6th Cir. 1958); United States v. Chase, 
135 F. Supp. 230, 232 (E. D. 111. 1955).

In its concern for the accused as an individual, the policy 
is not narrow. When a defendant pleads that he has been 
denied a speedy trial, it is not necessary for him to stipu­
late that he is incarcerated or even that he has been or will 
be demonstrably prejudiced by the delay. United States v. 
Lustman, 258 F. 2d 475, 477 (2d Cir. 1958), cert, denied 358 
IT. S. 880 (1958); Ex Parte Pickerill, 44 F. Supp. 741, 742 
(N. D. Tex. 1942). But this is not to say that one is less 
subject to the disabilities attending a long delay merely



11

because he is not held in custody. Of equal importance is 
the fact that he is subject to anxiety and concern over the 
possible disposition of the indictment pending against him, 
and that he must indefinitely continue to entertain grave 
doubts about his future security. To require that the de­
fendant be incarcerated to raise the issue of delay would 
place an intolerable burden upon the exercise of a consti­
tutional right and would undermine its several policies.

The importance of the speedy trial of criminal offenses 
in a democratic society derives not only from its need to 
protect the accused, but equally to protect the public order. 
The societal interest in security demands speedy trial, for 
this facilitates both effective prosecution of criminals and 
greater deterrence to potential criminals.

c. The Right to a Speedy Trial: Its Application to 
the States Through the Fourteenth Amendment.

Federal courts have sometimes suggested that the Sixth 
Amendment guarantee to a speedy trial is not directly or 
fully applicable to the states through the Due Process 
Clause of the Fourteenth Amendment. In re Sawyer’s 
Petition, 229 F. 2d 805, 812 (7th Cir. 1956). This does not 
mean, however, that the state defendant is entirely with­
out the equivalent of specific Sixth Amendment protection. 
Language bearing upon this issue points up that the Four­
teenth Amendment protects the state defendant against 
the denial of a speedy trial to the extent that such denial 
is inconsistent with fundamental due process. Mattoon v. 
Rhay, 313 F. 2d 683, 684-685 (9th Cir. 1963); Odell v. 
Burke, 281 F. 2d 782, 787 (7th Cir. 1960); Hastings v. 
McLeod, 261 F. 2d 627 (9th Cir. 1958) (per curiam); New 
York v. Fay, 215 F. Supp. 653, 655 (S. D. N. Y. 1963);



12

Gordon v. Overlade, 135 F. Supp. 577, 578 (N. D. Ind. 
1958). In recent years, the Supreme Court, demonstrating 
forthright concern for the rights of the accused, has broad­
ened that understanding of due process. To that end the 
Court has brought within the scope of Fourteenth Amend­
ment protection those safeguards in the first nine Amend­
ments fundamental to “ . . . the very essence of a scheme 
of ordered liberty.” Palko v. Connecticut, 302 U. S. 319, 
325 (1937). Speaking for the Court in Gideon v. Wain- 
wrigU, 372 U. S. 335, 341 (1963), Mr. Justice Black has 
pointed out that there are “ . . . ample precedents for 
acknowledging that those guarantees of the Bill of Rights 
which are fundamental safeguards of liberty immune from 
federal abridgment are equally protected against state in­
vasion by the Due Process Clause of the Fourteenth 
Amendment.” The Court has more recently sharpened this 
point, emphasizing that “ . . . since [Gideon] it no longer 
can broadly be said that the Sixth Amendment does not 
apply to state courts.” Pointer v. Texas, 380 IT. S. 400, 406 
(1965). To remove any doubts about where the Court 
stands on this issue, it has observed: “ . . . [i]n the light of 
Gideon, Malloy [Malloy v. Hogan, 378 U.S. 1 (1964)], and 
other cases cited in these opinions . . . the statements made 
. . . that “ the Sixth Amendment does not apply to the 
states can no longer be regarded as the law”  [emphasis 
added]. Pointers. Texas, 380 U. S. 400, 406 (1964).

The thrust of Gideon, Malloy, Pointer and similar recent 
cases has been to assure the accused a fundamentally fair 
trial in the state courts by incorporating into the Four­
teenth Amendment Due Process Clause those safeguards 
in the Bill of Rights essential to the fair protection of the 
criminally accused. Jackson v. Denno, 378 U. S. 368



13

(1964); Escobedo v. Illinois, 378 U. S. 478 (1964). This 
protection is subverted and undermined if a state may in­
definitely delay any trial without reason, until the efficacy 
of the accused’s defense has been debilitated by the rav­
ages of time and he has been obliquely punished by the 
stigma of his arrest and indictment. Such deliberate pro­
crastination undercuts the possibility of having a fair trial, 
having repose from the threat of prosecution, and having 
an opportunity for exoneration.

The nol. pros, with leave procedure, which in practice 
and in this case grants the solicitor the unfettered power 
to delay a trial indefinitely, and which, in fact, has per­
mitted the delay of petitioner’s trial for two years, will not 
wash in the wake of standards of fundamental fairness. 
Due process demands that every accused have a fair trial, 
which necessitates, as a minimum, as prompt a trial as the 
fair administration of justice will allow. Shepard v. 
United States, 163 F. 2d 974, 976 (8th Cir. 1947). Time 
does not recognize jurisdictional boundaries. Wherever 
the situs, the ingredients of a fair trial blend in the same 
way. Unreasonable delay is inimical to the rights of the 
accused wherever the forum. United States v. McWilliams, 
69 F. Supp. 812, 814 (D. D. C. 1946); United States v. Fay, 
313 F. 2d 620, 623 (2d Cir. 1963); State of Maryland v. 
Kurek, 233 F. Supp. 431, 432 (D. Md. 1964).

Four factors have generally been regarded as relevant 
in determining whether the denial of a speedy trial has 
assumed due process proportions: the length of the delay; 
the reason for the delay; the prejudice to the accused; and 
waiver by the accused. United States v. Simmons, 338 
F. 2d 804, 807 (2d Cir. 1964).



14

In the instant ease, approximately two years have 
elapsed since the indictment issued against petitioner. So 
far as the nol. pros, with leave procedure is concerned, it 
may continue indefinitely—entirely at the discretion of the 
solicitor. Wilkinson v. Wilkinson, 159 N. C. 265, 266-267, 
74 S. E. 740, 741 (1912).

The State failed to suggest any reason for further delay 
of the trial, at the time it took advantage of the availability 
of the nol. pros, with leave. In view of the fact that one 
trial on the indictment had already been completed, that 
the alleged incident had occurred locally, that the witnesses 
were few in number and close at hand, it is not surprising 
that the solicitor offered no reason to continue this pro­
ceeding. Indeed, the North Carolina Supreme Court has 
been able to speculate that perhaps the solicitor desired to 
continue the case because he “may have concluded that 
another go at it would not be worth the time and expense 
of another effort” [emphasis added]. State v. Klopfer, 
145 S. E. 2d 909, 910 (1966). This, however, far from ex­
cusing further delay by the solicitor tends only to suggest 
that the prosecution should have been dismissed.

There is no way fully to measure the prejudice sustained 
by Professor Klopfer, whether in terms of lost ability 
adequately to defend himself, personal anxiety respecting 
the specter of future prosecution, community stigma from 
an arrest and indictment he has had no reasonable chance 
to remove, or prejudice to his career. All that can be said 
with certainty is that the prejudice will increase with the 
passing of time, exactly as the solicitor’s justification for 
delay has become even less convincing as time has passed.



15

Petitioner did not waive his right to a speedy trial. The 
record demonstrates that petitioner, through his counsel, 
made timely objection and took exception to the entry of 
nol. pros, with leave (R. 11-12).

Viewed alone, any one of these factors might not amount 
to unreasonable delay. But as an aggregate, they easily 
reach due process dimensions.

II.

The nol. pros, with leave violates due process in oper­
ating to punish the petitioner in the absence of a funda­
mentally fair trial.

Due process requires not merely that criminal trials 
must be conducted free of fundamental error, but that 
the accused must be given a reasonable opportunity to end 
the stigma and disabilities of arrest and indictment by 
establishing his innocence. Due process assures the ac­
cused the affirmative right to have a fair trial take place. 
It is obvious that the significant right to establish one’s 
innocence may be eroded in direct proportion to the lapse 
of time between his arrest and his trial. Just as the rav­
ages of time adversely affect the availability of the State’s 
evidence and the State’s witnesses against him, so they 
equally affect his ability to secure exoneration against the 
criminal charge as well as against the prospect of convic­
tion. After sufficient time has gone by to enable the ac­
cused and the State to prepare for trial, further delay op­
erates to their mutual disadvantage by atrophy of their 
evidence. The result is to increase the likelihood that no 
meaningful trial can be held and, correspondingly, that the 
accused will have to live out his life subjected to the dis­



16

abilities of an unresolved record of criminal arrest and in­
dictment. Without the aid of this Court, petitioner is vir­
tually certain to endure such oblique punishment. He has 
no means pursuant to any procedure in North Carolina 
either to bring his case to trial or to secure a dismissal of 
the indictment. No remedy exists to offset the solicitor’s 
discretion to delay the trial indefinitely. Beyond that, the 
solicitor has failed to suggest any reason why further de­
lay beyond two years is necessary or even consistent with 
any desire by him to prosecute the case. And beyond this, 
it is clear that but for the prosecution’s power to hold the 
accused in limbo for the rest of his life, the accused would 
in fact already have been vindicated at law.

Petitioner was indicted for criminal trespass for having 
peacefully sought service in a place of public accommoda­
tion plainly within the meaning of the Civil Bights Act of 
1964. 78 Stat. 241, Tit. II, §201(b)(2). Pursuant to this 
Court’s decision in Hamm v. City of Rock Hill, 379 U. S. 
306 (1964), he could not now be convicted of the offense 
for which he stands accused and indicted. The Hamm de­
cision, moreover, occurred before the solicitor obtained a 
nol. pros, with leave in this case. It was therefore clear at 
the time not only that no additional time was required to 
prepare adequately the prosecution of this case which had 
already been tried once (before the Hamm decision), but 
that no subsequent prosecution could succeed. The effect 
of the nol. pros, with leave is therefore not only to deprive 
the accused of his opportunity to establish his innocence 
and to resolve the record of his arrest and indictment, but 
to deprive him of the certainty of vindication. The net ef­
fect of the proceedings below is to punish the petitioner



17

subliminally through the expedient of an unresolved record 
of arrest and indictment which he must carry with him for 
the rest of his life, unless this Court acts.

III.

The nol. pros, with leave, granted without reason in 
this case, represents a continuing in terrorem deterrent 
to the exercise of constitutionally protected rights of 
speech, assembly, association, and equal protection in 
North Carolina.

It is no secret that expressions in opposition to racial 
discrimination are unpopular with much of the white citi­
zenry of the South. North Carolina makes it very easy 
for its local solicitor to discourage such expression. It 
has armed him with the discretionary nol. pros, with leave, 
thus empowering the solicitor to suspend indefinitely the 
trial of one who, such as Professor Ivlopfer, has been ar­
rested and indicted while engaging in a locally unpopular, 
though constitutionally protected, form of conduct. The 
State also has empowered its solicitor, through this same 
procedure, to cause the protestant to be again arrested 
upon the same indictment as often as the solicitor wills, 
each time putting the accused to the burden of arranging 
bond and preparing his defense. It is not difficult to fore­
see that if petitioner again engages in a racial protest or, 
for that matter, in any form of expression or conduct dis­
approved of by the State or the solicitor, he might well be 
re-arrested upon the indictment now pending, once, twice, 
or many times, and gravely inconvenienced and em­
barrassed.



18

In light of Professor Klopfer’s position as a member of 
a university faculty, such harassment would present a 
grave threat, jeopardizing his career as well as his stand­
ing and reputation in the community. The effect, there­
fore, is to force petitioner to choose between his career and 
effectively expressing his dissatisfaction with racial segre­
gation. Neither the State nor its solicitor has the right to 
force so unconscionable a choice on one who would other­
wise engage in a form of unpopular expression, unless the 
State can demonstrate some overriding, compelling inter­
est. N. A. A. C. P. v. Alabama, 357 IT. S. 449 (1958) ; Bates 
v. City of Little Rock, 361 IT. S. 516 (1960). North Caro­
lina’s solicitor has failed in petitioner’s case to show any 
State interest to be preserved by permitting petitioner’s 
indictment to continue. It is especially doubtful in light of 
the effect that Hamm and the Civil Eights Act of 1964 
would have upon a conviction that any reason to continue 
the indictment exists other than the deterrent effect it is 
bound to have upon petitioner’s future conduct.

To the extent that the nol. pros, with leave empowers the 
solicitor to deter petitioner from again engaging in a racial 
protest, this procedure does not pass constitutional muster. 
If petitioner is ever again to feel free to express an un­
popular belief in North Carolina, the indictment pending 
against him must be dismissed.



19

CONCLUSION

To safeguard petitioner’s right to a fair and speedy trial 
as well as his right to express unpopular beliefs, this Court 
should grant the petition for certiorari and dismiss the 
indictment pending against petitioner pursuant to the dis­
cretionary not. pros, with leave.

Bespectfully Submitted,

W illiam W . V an A lstyne 
Duke University 
School of Law 
Durham, North Carolina

Melvin L. W ell 
156 Fifth Avenue 
New York, N. Y.

Attorneys for Amici

April 1966

The attorneys for amici acknowledge the invaluable assistance 
of Mr. Steven Roth, a student at the Duke Law School.



A P P E N D I X



2 1

APPENDIX

1. Thirty-eight constitutions provide, like the Sixth 
Amendment, that the accused shall enjoy the right to 
a speedy and public trial in all criminal prosecutions.

Ala. Const, art. 1, §6; Alaska Const, art. 1, §11; 
Ariz. Const, art. 2, §24; Ark. Const, art. 2, §10; Cal. 
Const, art. 1, §13; Colo. Const, art. II, sec. 16; Conn. 
Const, art. 1, §9; Del. Const, art. 1, §7; Fla. Const. 
DR sec. 11; Ga. Const, art. 1, §2-105; Idaho Const, 
art. 1, §13; 111. Const, art. 2, §9; Iowa Const, art. 1, 
§10; Kan. Const. B. of R., §10; Ky. Const. §11; La. 
Const, art. 1, §9; Me. Const, art. 1, §6; Md. Const. 
D. R. art. 21; Mich. Const. 1963 art. 1, §20; Minn. 
Const, art. 1, §6; Miss. Const, art. 3, §26; Mo. Const, 
art. 1, §18(a); Mont. Const, art. 3, §15; Neb. Const, 
art. 1, §11; N. J. Const, art. 1, par. 10; N. D. Const, 
art. 1, §13; Ohio Const, art. 1, §10; Okla, Const, art. 
2, §20; Pa. Const, art. 1, §9; R. I. Const, art. 1, §10; 
S. C. Const, art. 1, §18; Tenn. Const, art. 1, §9; Tex. 
Const, art. 1, §10; Utah Const, art. 1, §12; Ya. Const, 
art. 1, §8; Vt. Const, ch. I, art. 10; Wis. Const, art. 1, 
§7; Wyo. Const, art. 1, §10.

2. Six constitutions, not specifically guaranteeing the 
accused a speedy and public trial, state that justice 
shall be administered speedily and without delay. 
This, too, has been construed to afford the accused the 
right to a speedy trial.

Ariz. Const, art. 2, §11 (But see appendix 1, supra); 
Ind. Const, art. 1, §12; Kan. Const. B. of R., §18 (But 
see Appendix 1, supra); Ore. Const, art. 1, §10; 
Wash. Const, art. 1, §10; W. Va. Const, art. I ll , §14.



2 2

3. Six states have no constitutional guarantee of a 
speedy trial.

Hawaii, Massachusetts, Nevada, New Hampshire, 
New York, North Carolina.

Three of these states have language in their constitu­
tions similar to that of the Indiana constitution. (Ap­
pendix 2, Supra). Mass. Const, pt. 1, Art. X II, §12; 
N. H. Const, pt. 1, art. 14; N. C. Const, art. 1, §35. 
But thus far there have been no judicial decisions in­
terpreting this to guarantee the right to a speedy 
trial.

4. Eleven states provide by statute that the accused 
shall enjoy the right to a speedy trial.

Ariz. Rev. Stat. Ann. art. 3, §13-161; Ark. Stat. Ann. 
tit. 43, §1703; Ga. Code Ann. ch. 27-6, §21-601; Idaho 
Code tit. 19, §3501; 111. Rev. Stat. 1965 tit. 28, §103-5; 
Kan. Stat. Ann. §62-1431 et. seq.; Ann. Laws of 
Mass. tit. 277, §72; Mo. Stat. Ann. §545.890; Nev. 
Rev. Stat. §169.160; N. C. Gen. Stat. 15-10 (applying 
to felony offenses on ly ); Okla. Stat. Ann. tit. 22, §13; 
Code of Law of S. C. tit. 17, §509 (felony); §510 
(misdemeanor).

5. Approximately one-third of the States have abolished 
nol. pros, expressly by statute or have greatly re­
stricted its entry by the prosecutor.

Cal. Pen. Code §1386; Idaho Code Ann. §19-3505; 
Iowa Code §795-5 (by implication); Minn. Stat. 
§631.21 (by implication); Mont. Rev. Code Ann. §94- 
9506; Nev. Comp. Laws Ann. §11198; N. Y. Crim.



23

Code §672; N. D. Rev. Code §29-1805; Okla. Stat. 
tit. 22, §816; Ore. Comp. Laws Ann. §26-2006; S. D. 
Com. Laws Ann. §4811; Utah Code Ann. §105-51-5; 
Wash. Rev. Stat. Ann. §14-2314 (by implication).

6. Thirteen States have placed sole discretion for the 
entry of nol. pros, in the court.

Ala. Code Ann. tit, 15, §257; Ark. Ann. Stat. §43-1230; 
Colo. Stat. Ann. c. 48 §463; Ga. Code Ann. §27-1801; 
Ind. Ann. Stat, 9-910; Ky. Rev. Stat. 455.070; Me. 
Rev. Stat. c. 79 §135; Mich. Comp. Laws §767. 29; 
Miss. Code Ann. §2566; Ohio Gen. Code Ann. 
§13437-32; Pa. Stat. Ann. tit. 19, §492; Tex. Stat., 
Code of Grim. Proc. art. 577; Wyo. Comp. Stat. Ann. 
§10-823. '



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