nine month delay triggers further inquiry, but when considered in light of other three factors, defendant was not deprived of constitutional right to speedy trial
How later courts described this case
- nine month delay triggers further inquiry, but when considered in light of other three factors, defendant was not deprived of constitutional right to speedy trial
- nine months delay sufficient to trigger further inquiry
Written by the judges who cited it.
The opinion
Bogdanski, J.
(dissenting). In my view, the majority have failed to apply the balancing test concerning the right to a speedy trial as enunciated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 , 92 S. Ct. 2182 , 33 L. Ed. 2d 101 , and Moore v. Arizona, 414 U.S. 25 , 94 S. Ct. 188 , 38 L. Ed. 2d 183 . In Barker , reaffirmed in Moore , the Supreme Court stated (p. 530) that “[a] balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis,” and identified four factors which the courts should assess: “[Llength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” The court further stated (p. 533) that “[w]e regard none of the four factors identified above as either a necessary or sufficient condi *539 tion to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with snch other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.” (Emphasis added.) Barker v. Wingo, supra; Moore v. Arizona, supra, 25 .
In the present case, the defendant was not tried until nine months and eight days after his arrest during which time he remained incarcerated. In State v. Orsini, 155 Conn. 367 , 232 A.2d 907 , a delay of eleven months between arrest and trial precipitated the accused’s due process claim. In circumstances where the accused was free on bond, never made any request for either a speedy trial or a trial date, and never raised the issue until the time of trial, this court rejected his speedy trial claim because of his “acquiescence in the delay and his failure to make any demand for a trial.” Id., 378 . The court added, however, that “on its face a delay of about eleven months, unexplained, would seem an undue delay.” Ibid; see also United States v. West, 504 F.2d 253 (D.C. Cir.) (a delay of one year gives prima facie merit to the sixth amendment challenge and a delay of six months is subject to inquiry and need for justification).
The second factor to be considered under the Barker rationale is what, if any, reason existed for the delay. No reason for the delay in the present case appears in the record nor has the prosecution *540 offered any satisfactory explanation. What is apparent, however, is that the defendant neither caused nor acquiesced in the delay.
The third factor relates to the defendant’s assertion of his right to a speedy trial. On the assumption that a person is likely to complain if his rights are being prejudiced, a failure to complain makes it more difficult for that person to establish at a later time that he was, in fact, prejudiced. When dissatisfaction with the progress of his case is voiced in some manner, that assertion of right is given strong evidentiary weight in a subsequent determination of whether the defendant has been deprived of his right to a speedy trial. Barker v. Wingo, supra, 531-32 . The record shows that the defendant moved for a speedy trial six weeks after the ease was first assigned for trial, some four months after his arrest. The court denied that motion on May 6, 1975. Six weeks later he moved for a dismissal of the indictment for lack of a speedy trial. The court denied that motion also. The latter motion was renewed prior to the commencement of the trial and was again denied.
The fourth factor to be considered is the prejudice which can follow as the result of a delay. The Barker court identified three potentially affected interests which the speedy trial requirement was designed to secure. They are: (1) the• prevention of oppressive pretrial incarceration; (2) the minimization of anxiety and concern of the accused; and (3) the limitation of the possibility that the defendant’s ability to present a defense would be impaired. Id., 532 . The court further stated (p. 532): “The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a *541 job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent. Finally, even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.”
The majority place reliance on the defendant’s motion for the appointment of a special public defender as indicative of delay caused by him. An examination of the case file does not support such reliance. The case docket discloses that the defendant filed a motion for the appointment of a special public defender on January 24, 1975; that seven days later, on January 31, 1975, that motion was denied by the court. The most that can be claimed by the filing of that motion is a delay of seven days.
The docket further reveals that on February 26, 1975, the defendant filed his motion for a speedy trial; that that motion was denied by the court on May 6, 1975, two and a half months later; that on May 29, 1975, the defendant filed a motion to dismiss for lack of a speedy trial, which motion was denied by the court on June 25,1975.
On balance, in view of the totality of circumstances involved in this case, where the state has permitted a delay of over nine months from the time of arrest to the time of trial, without explana *542 tion or justification despite the repeated, properly presented claims for a speedy trial by a defendant who remained continuously incarcerated during said period, the delay was undue.
I would find error, set aside the judgment and remand the case with direction to render judgment that the defendant be discharged.