The Demise of an “Extraordinary Criminal Procedure”: Klopfer v. North Carolina and the Incorporation of the Sixth Amendment’s Speedy Trial Provision

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The Demise of an “Extraordinary Criminal Procedure”: Klopfer v. North Carolina and the Incorporation of the Sixth Amendment’s Speedy Trial Provision Joseph Mosnier* Editor’s Note: This article is the winner ofthe 1996 Hughes-GossettAwardfor best studentpaper. The circumstances ofPeter H. Klopfer’s arrest fortrespassing during a civil rights demonstration in January 1964 were scarcely unique, given the times. Klopfer, a thirty-three-year-old assistant professor of zoology at Duke University and a Quaker who made no secret of his support for racial integration, was detained along with five other professors and several younger persons after a protest at a segregated restaurant in Chapel Hill, North Carolina. Duringthe priormonth more than 100 students, many from local high schools but the majority from the University of North Carolina, the institution around which the small town of 1,500 had grown, had been arrested during a string ofsimilar demonstrations targeting other segregated businesses in Chapel Hill. The number of student arrestees soon climbed to more than 200 as protests continued into February. True, the incident involving Klopfer and the other professors marked the sole occasion on which faculty would contribute their status and prestige to the movement by submitting to arrest. But the charge they faced was simple misdemeanor trespass. In this respect the Klopfer case differed not at all from hundreds ofothers arising in Chapel Hill and in the South in those months and years. Klopfer had no reason to think that the ultimate legal disposition ofhis case would be more than a matter oflocal interest. Peter Klopfer’s case soon stood apart from all ofthe others, however. ByApril 1964 authorities had concluded court proceedings against the several hundred Chapel Hill demonstrators. All except Klopfer were convicted, faculty members individually and the others after a joint plea bargain arrangement. Tried in March, Klopfer escaped conviction when his jury deadlocked, forcing thejudge to declare a mistrial. The local prosecutor did not retry Klopferbut chose instead, after putting the case offfor eighteen months, to utilize a procedural device known as the “nolle prosequi with leave” (in legal parlance, the “nol pros with leave”). The nol pros with leave caused the outstanding indictment to remain pending indefinitely unless and until the prosecutor, at his discretion, called the case for retrial at some future date. With the statute of limitations suspended by the nol pros, Klopfer thus faced the prospect of an unliquidated criminal charge forever hanging over his head. JOURNAL 1996, VOL. 2 137 Not surprisingly, Klopfer wanted no part of this. Moreover, he believed that two related developments at the federal level in the year and one halfthat passed between the mistrial and the entry of the nol pros with leave eliminated any chance for the prosecutor to proceed successfully against him. The passage in July of the Civil Rights Act of 1964 and the Supreme Court’s subsequent validation of the Act’s public accommodation provisions convinced Klopfer of the unsustainability of prosecutions of persons seeking service at places of public accommodation. Yet Klopfer could not compel the local prosecutor, who enjoyed sole discretion in the case, to try him. After a long period of stalemate, Klopfer carried an appeal to the North Carolina Supreme Court. He argued that the application ofthe nol pros with leave denied him a speedy trial, but the seven justices were unimpressed and unanimously sustained the disposition of his case. Unsatisfied, Klopfer appealed for reliefto the Supreme Court of the United States. Although the Supreme Court had never held the Sixth Amendment’s speedy trial provision binding upon the states, Klopfer pinned his hopes on the Warren Court’s demonstrated willingness to expand the range of constitutional protections available to criminal defendants at the state level. To accomplish this reform of state criminal proceedings, which ranked among the Warren Court’s most ambitious undertakings, the Court since 1961 had incrementally broadened its interpretation of the Due Process Clause of the FourteenthAmendment, which explicitly enforced obligations upon the states. By the mid-1960s the Warren Court newly construed the Due Process Clause to encompass certain ofthe major criminal procedure guarantees ofthe Bill ofRights, and Klopfer reasoned that the Court ought now to add the Sixth Amendment...