JUSTICE & SPEEDY TRIAL RIGHTS AFTER BARKER V.

WINGO:

NOT SO SWIFT, NOT SO DELIBERATE, NOT SO BALANCED

A Master Thesis

Submitted to the Faculty

of

American Public University System

by

Audrey M. Saxton

in Partial Fulfillment of the

Requirements for the Degree

of

Master of Arts in Legal Studies

February 2023

American Public University System

Charles Town, WV
The author hereby grants the American Public University System the right to display these
contents for educational purposes.

The author assumes total responsibility for meeting the requirements set by United States
copyright law for the inclusion of any materials that are not the author’s creation or in the public
domain.

© Copyright 2023 by Audrey M. Saxton.

All rights reserved.

i
DEDICATION

I dedicate this thesis to my father, Danne J. Saxton, murdered in 1987. Though our family

has never received the justice and closure we deserved, the hurt of losing of my father so long

ago has always given me purpose and drive. I have sought compassion for those who commit

wrongs, including my father’s killer. I have worked to understand the complexities of the

criminal justice system and educate myself on ways I may potentially contribute to improving

those systems. And, finally, I have found forgiveness in my heart for the occasional failures of an

imperfect but evolving criminal justice system to safeguard individual rights and deliver justice

for all whom it is duty-bound to serve and protect. Without my loss—as sad as losing a father so

young has been and continues to be—my life, my career, and my educational pursuits would not

have had meaning.

All my love, Daddy. I hope you would be proud.

ii
ACKNOWLEDGMENTS

First, I want to acknowledge the members of the academic committee and especially my

Capstone Professor and Advisor, Darren “Muddy” Waters for his patience and understanding as

I balanced life with academics during this capstone course. There are too many professors to

name individually, but my time at American Public University has been complete with

knowledgeable guidance provided by qualified instructors in the Legal Studies program.

I am indebted to each and give thanks to all.

I also must recognize the contributions of my friend and boss—Hon. Brenden Griffin

(Judge of the Arizona Superior Court)—who truly is one of my favorite people, both as a mentor

and as a role model. While working together for almost two decades (from first in private

practice to the last 10 years in public service), he has supported and encouraged me on every step

of my educational, personal, and professional voyage. Achieving this degree would not have

been possible without Judge Griffin’s guidance and inspiration to serve a greater purpose in my

community, whether academically or in our roles at the court and serving the public interest.

Finally, my greatest expressions of gratitude extend generally to my entire tribe (i.e., my

wild family and crazy friends). Laughter, tears, fun, stress, panic, and calm were just some of the

many states of emotion endured in pursuit to this final product. Throughout the many years

leading up to this date, I have received constant love and encouragement to persist and achieve

this dream. I could not have possibly asked for a better team to cheer me on, keeping me

grounded and focused toward on the finish line—which is finally here. ¡Muchas gracias a todos!

iii
 ABSTRACT OF THE PAPER

JUSTICE & SPEEDY TRIAL RIGHTS AFTER BARKER V. WINGO:

NOT SO SWIFT, NOT SO DELIBERATE, NOT SO BALANCED

by

Audrey M. Saxton

American Public University System, February 2023

Charles Town, West Virginia

Professor Darren Waters, J.D., Capstone Professor

The Sixth Amendment to the U.S. Constitution provides that a criminal defendant “shall enjoy

the right to a speedy and public trial”—a fundamental procedural due process right integrally

connected with other protections enshrined in the rule of American law to protect the rights of

the accused. Through traditional legal review and analysis of constitutional, statutory, case law,

and scholarly law reviews publications, the study provides an in-depth overview of the onerous

task given to courts to balance the rights of the accused against the interests of society. The

research critiques elements of the subjective four-factor balancing test created by the Supreme

Court in Barker v. Wingo—the precedent-setting tool courts use to assess and analyze the

elements of any claim that the government has violated the speedy trial rights of a defendant.

The study’s findings suggest that the inconsistent application of the Barker test leads to unfair

results, doing little to advance the original intent and purpose of the constitutional speedy trial

clause—to prevent harm to criminal defendants awaiting trial in a criminal justice system

overburdened, overtaxed, and overly tolerant of the culture of delay. The analysis concludes with

iv
a challenge to legislators and court officials take a comprehensive approach in creating solutions

to clear the backlog of cases clogging American court dockets and legislatively adopt some of

the proposals already offered by scholarly community to abandon the Barker test in favor of a

statutory solution designed to speed up the rate of disposition of cases in the criminal courts.

v
 TABLE OF CONTENTS

Page

CHAPTER 1: INTRODUCTION .................................................................................................1

Statement of the Research Problem .....................................................................................1

Purpose of the Study ............................................................................................................3

Theoretical Framework ........................................................................................................3

Constitutional Theory ............................................................................................. 4

Other Theories: Distributive & Procedural Justice ............................................... 6

Summary of Theoretical Approach ......................................................................... 7

Significance of the Research ................................................................................................8

Summary of Introduction ...................................................................................................10

CHAPTER 2: LITERATURE REVIEW ..................................................................................11

Issues Presented .................................................................................................................11

The Fundamentals: Constitutional & Statutory Law .........................................................14

Barker’s Balancing Test & Clarifying Cases.....................................................................15

Crime Victims, Criminal Courts, and Calamity.................................................................19

Weaponizing Continuances ................................................................................... 20

Crime Victims Movement ...................................................................................... 22

Culture of Delays .................................................................................................. 24

Rights versus Interests .......................................................................................... 26

Scholarly Proposals to Amend or Abandon the Barker Test .............................................29

Summary of Review ..........................................................................................................33

vi
CHAPTER 3: ANALYSIS ..........................................................................................................35

Barker Fundamentals & Differences in Application and Law ..........................................36

Factor 1: Time (or, the When) .............................................................................. 38

Factor 2: Reason (or, the What) ........................................................................... 43

Factor 3: Assertion (or, the How)......................................................................... 47

Factor 4: Prejudice (or, the Why)......................................................................... 51

Competing Interests & Due Process Rights .......................................................................55

The Role of Courts and Rights of Crime Victims ...................................................57

Speedy Trial Rights as Due Process Concerns ..................................................... 59

Rebalancing a Shifted Burden ...........................................................................................61

The Power of the Prosecutor ................................................................................ 62

Comparing Doggett vs. Brillon ............................................................................. 64

Ends of Justice Continuances & Exigent Circumstances ..................................................67

Summary of Analysis .........................................................................................................71

CHAPTER 4: CONCLUSIONS .................................................................................................73

Implications........................................................................................................................73

Recommendations ..............................................................................................................75

Conclusions ........................................................................................................................78

vii
 CHAPTER 1: INTRODUCTION

Long since the founding of the nation and the authorship of the Constitution, the guiding

principle of governances in the United States has been the balance of power between the citizens

of the country and the government created to serve the people’s interests and manage is many

affairs. As part of the governmental construct, the judicial branch plays a significant role

interpreting and applying constitutional doctrines devised to protect the rights of the people from

infringement by governmental overstep by any agent of the other two branches of government.

However, when the courts fail to act fully and exercise their power to check the actions of state

actors, the scales of justice and fairness tip unfavorably away from the people whom the legal

system should protect. Disproportional distribution of power in the administration of justice

works against the interests of society and damages the spirit of the rule of law, particularly

constitutional law. To this end, this scholar has identified one issue of interest for study which

might provide an avenue for repairing just one of these systemic imperfections within the

criminal justice legal system.

Statement of the Research Problem

The Sixth Amendment to the U.S. Constitution states that the criminally accused “shall

enjoy the right to a speedy and public trial ...”.1 Contrary to this clearly stated constitutional

provision, the Supreme Court’s decision in Barker v. Wingo2 shifts the burden onto defendants to

prove any claims that their constitutional speedy trial rights have been violated, forcing them to

substantiate (amongst other less persuasive factors) that some sort of prejudice was caused by the

delays that worked against them in asserting their fundamentally-protected speedy trial rights,

1
U.S. CONST. amend. VI (emphasis added).
2
407 U.S. 514 (1972).

1
rather than by also requiring the government (including the courts) uphold the accused’s Fifth

and Fourteenth Amendment due process rights.3 Notably absent from the balancing test created

by Barker and used by courts since is any real examination of the burden and responsibility of

the government to timely prosecute cases despite considerations connected to crowded court

dockets and overloaded prosecutorial caseloads.4 The unfortunate byproduct of subsequent

rulings missing this fifth-prong analysis of speedy trial violation claims is a systemic, although

unwritten, criminal justice modus operandi which permits prosecutorial action (or inaction) to

contribute to unnecessarily lengthy delays to trial-setting and trial-completion without significant

consequence—the culmination of which contributes to an overabundance of criminal cases

awaiting resolution (whether by trial or other non-trial disposition, such as by plea agreement),

often driven by the “uneven” control that prosecutorial offices have over courts’ dockets despite

case management experts’ consensus that courts and judges should have more control over case

flow than any one party.5 Adding further to the rising and “pervasive” backlog of cases plaguing

courts at all levels, the treatment of cases during the recent COVID-19 pandemic shutdowns by

the government served as evidence of the power the government has over suspending or

individuals’ civil rights, despite the number of tools available at the government’s disposal which

3
U.S. CONST. amend. XIV; see also Sarah M. Bernstein, Fourteenth Amendment – Police Failure
to Preserve Evidence and Preserve Evidence and Erosion of the Due Process Right to a Fair Trial, 80 J.
CRIM. L. CRIMINOLOGY 1256 (1990).
4
Although this prosecutorial “burden” is mentioned in the Court’s unanimous opinion, it is
stressed more so in the concurring opinion of Justice Brennan, wherein he expresses specific concern over
the potential harms to a defendant caused by inordinate delay and the caution that only “special
circumstances” beyond considerations such as overcrowded court dockets and prosecutorial caseloads
should be included as possible exceptions to speedy trial timing. Barker, 407 U.S. at 529, 537–38
(Brennan, J., concurring).
5
Kat Albrecht, et al., Justice Delayed: The Complex System of Delays in Criminal Court, 53 LOY.
U. CHI. L. J. 747, 785–86 n.147 (2022).

2
could reduce case management disruptions that, during this recent time, were unfortunately only

slowly employed.6

Purpose of the Study

The purpose of this legal study is to identify whether recent events and the growing

backlog of criminal cases clogging court dockets across the country compel an amendment of the

Barker-created balancing test to properly address the share of responsibility the courts and other

government actors bear in affecting the constitutional rights of the criminally accused. The

method of the proposed study is traditional legal research and will assess relevant historical case

law and existing statutory law to evaluate if, and when, the courts’ exclusion of reviewing

governmental action (or inaction) under Barker has unduly oppressed criminal defendants’

ability to find remedy for governmental infringements to their Sixth and Fourteenth Amendment

speedy trial and due process rights. The strategic goal of the study is to provide suggestions for

implementing evidence-based case management strategies to ensure prosecutorial and court

actors realize reasonably timely disposition of criminal cases while prioritizing the speedy trial

rights of defendants, on balance with the concerns of all criminal justice system stakeholders,

including crime victims and others.

Theoretical Framework

To effectively evaluate whether the balancing test created by the Supreme Court in

Barker v. Wingo7 is sufficient for evaluating modern Sixth Amendment speedy trial infringement

claims, it is necessary to approach the research through the lens of constitutional theory while

6
Kelly Roberts Freeman & Brian Ostrom, Moving Court Cases Forward: Simulating the Impact of
Policy Changes on Caseloads, in TRENDS IN STATE COURTS 2022, 91, 92 (Charles Campbell & John
Holtzclaw eds., 2022); Julie Marie Baldwin, et al., Court Operations during the COVID-19 Pandemic, 45
AM. J. CRIM. JUST. 743, 747 (2020).
7
Barker, 407 U.S. at 514.

3
keeping in mind the principles of fairness and justice for all as envisioned by both historical and

modern scholars8 and also acknowledging that problems in the mechanics of balancing tests

leave open the possibility for unjust results, notwithstanding the good intent of decision-makers.9

Thusly, a chronological review of the practical outcomes of cases decided since the creation of

the Barker balancing test will likely reveal that Barker has done nothing more than give courts a

“facile” evaluative mechanism by which the “second class” treatment of speedy trial rights can

continue and “rare” findings of violations of those rights may persist despite the inherent

imbalance of power between the criminally accused and the government apparatus prosecuting

those individuals.10

Constitutional Theory

In its application, constitutional theory is descriptive as well as prescriptive and is

supposed to produce morally correct outcomes which draw from basic agreements within the

legal culture but also serve the purpose of resolving complex legal issues.11 When constitutional

theory is applied prescriptively, courts often create balancing tests by which the competing

interests of the government to prosecute cases are weighed against the fundamentally prescribed

rights of a defendant be brought to trial without unreasonable delay, such as was done by the

Supreme Court in the case of the Barker ruling. The current assumption in the literature is that

the balancing test created by Barker assures that the, under this prescriptive evaluative method,

the constitutional speedy trial rights of the criminally accused are considered fairly on balance

8
See, e.g., Mary M. Schroeder, Appellate Justice Today: Fairness or Formulas – The Fairchild
Lecture, 1994 WIS. L. REV. 9 (1994).
9
T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE. L. J. 943 (1987).
10
See id. (quoting LEFF, THE LEFF DICTIONARY OF LAW: A FRAGMENT, 94 YALE L. J. 1855, 2123–
24 (1987)); see also Guha Krishnamurthi, The Constitutional Right to Bench Trial, 100 N.C. L. REV.
1621 nn.122–23 (2022) (citations omitted).
11
David A. Strauss, What is Constitutional Theory?, 87 CAL. L. REV. 581 (1999).

4
with the state’s interests to pursue “swift but deliberate” justice for the people,12 however recent

events have exposed that this has not been the case, and the result has only been more of the

same for defendants—simply put, more and more findings of “justifiable” delay for a variety of

reasons.13 Additionally, constitutional originalism (being neither a purely descriptive nor purely

normative theory) is said to share three normative premises: (1) that originalism serves the rule

of law “by requiring judges to adhere to the original public meaning of the constitutional text;”

(2) the theory preserves liberty and legitimates democracy and the constitutional separation of

powers because originalist interpretation of constitutional questions “confines judges to their

legitimate role of deciding cases on the basis of preexisting legal rules;” and (3) originalism

affirms the premise of popular sovereignty in that it “subordinates judges to the will of the

people” under the Constitution as accepted by the populace as the supreme law of the land, and

subject to the individual will of the people as a society.14 It is primarily under these premises that

this study will evaluate of the Barker tool for assessing constitutional speedy trial right claims in

its analysis and in its resulting conclusions and recommendations.

The aftermath of the COVID-19 pandemic shutdowns of courts on the speedy trial rights

of the criminally accused has reinvigorated criticisms of how and why courts across the country

have been unable to control and manage an already overburdened criminal justice system and

backlog of criminal cases, even despite the existence of modern technologies and the adoption of

procedural rules and statutory frameworks purportedly designed to uphold the constitutional

12
Barker, 407 U.S. at 521 (citing U.S. v. Ewell, 383 U.S. 116, 120 (1966)).
13
See Gregory P.N. Joseph, Speedy Trial Rights in Application, 48 FORDHAM L. REV. 611 (1980).
14
Randy E. Barnett & Lawrence B. Solum, Originalism after Dobbs, Bruen, and Kennedy: The
Role of History and Tradition (Jan. 27, 2023), https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=4338811.

5
protections granted by the Sixth Amendment to criminal defendants.15 Although post-pandemic

speedy trial claims have yet to make it through the courts, scholars have already begun the

process of evaluating constitutionality of the government’s actions and the effect on the accused

criminal’s Sixth Amendment rights in a post-pandemic justice system and courts will likely have

plenty of opportunity to implement Barker’s prescription for reviewing speedy trial infringement

claims while evaluating the government’s reasons (“negligent” as they may arguably be) for

consistently lengthy trial delays.16

Other Theories: Distributive & Procedural Justice

In addition to research and analysis of the research problem under constitutional theory as

stated above, this study will also briefly analyze whether placing the burden defendants to prove

prejudice is contrary to the theories of justice which have traditionally governed legal analysis of

questions of constitutionality of government actions. Though some scholars have already

discussed the application of virtue theory on the ethical duties of government prosecutors to

“seek justice” in prosecuting accused criminals and reaching disposition of those case in

whatever form may eventually resolve the case (whether by actual trial verdict or disposing of

the case by plea agreement), very little of that inspection sheds any light on the duties and burden

of the government under more commonly applied criminal justice theories.17 Though Aristotle is

15
See, e.g., Sara Hildebrand & Ashley Cordero, The Burden of Time: Government Negligence in
Pandemic Planning as a Catalyst for Reinvigorating the Sixth Amendment Speedy Trial Right, 67 VILL.
L. REV. 1 (2022); Albrecht, supra note 5 at 747; Madison C. DeRegis, “Can You Hear Me Now?”: The
Implications of Virtual Proceedings on Criminal Defendants’ Constitutional Rights, 81 MD. L. REV.
ONLINE 71 (2021–2022); Blaze Walsh, The Right to a Speedy Trial in Florida: Another Victim of
COVID-19, 45 NOVA L. REV. 143 (2020).
16
Brandon Marc Draper, Revenge of the Sixth: The Constitutional Reckoning of Pandemic Justice,
105 MARQ. L. REV. 205 (2021); see also, e.g., Hildebrand & Cordero, supra note 15.
17
R. Michael Cassidy, Character and Context: What Virtue Theory Can Teach Us About a
Prosecutor’s Ethical Duty to Seek Justice, 82 NOTRE DAME L. REV. 635 (2013).

6
largely seen as the first to define what constitutes “justice” in application, Rawls’ more recent

instruction of the topic provides a more modern viewpoint from which recent and ongoing

consideration of the issues should be informed.18 An assessment as to whether Barker’s

balancing test adequately applies good legal principles is significant in the respect that Aristotle

(and, more recently, Rawls) teaches that the goals of procedural justice concern the means by

which institutions and systems apply the requirements of distributive justice in particular cases,

and to what end the institutions fail in this regard has a bearing on whether justice is actually

being served.19 Though the ends may be “consequentially imperfect” but yet considered

generally acceptable to date, an analytical review of the economic costs to the procedural

systems affected by the courts’ disparate application of the weight of burdens borne by each of

the parties when using the Barker balancing test does not serve to minimize the sum of the costs

to system as a whole.20

Summary of Theoretical Approach

Ultimately, what the research will attempt to expose is that the disproportionate balance

of power wielded by the government against the criminally accused should serve as the basis for

a challenge to the constitutionality of how Barker’s attempt to balance the rights of the accused

against the government’s duty to protect those rights while still serving the public interest. An

application of the theory of constitutional originalism will show that Barker, in application, fails

to serve the original intent and purpose of the constitutional clause and the study will assist the

reader in understanding the fundamental issues by highlighting ways the test could be amended

18
See JOHN RAWLS, A THEORY OF JUSTICE (1971).
19
See id.
20
RICHARD POSNER, ECONOMIC ANALYSIS OF LAW (1992).

7
to provide a fair and just application of constitutional law. This effort is important in light of the

pandemic’s exposure of the inherent flaws of the criminal justice system (and the application of

Barker as the test standard to maintain the status quo of gridlock in the court system. Finally, by

applying distributive and procedural justice theory to the analysis, the study will show that courts

have not properly met their duty to consistently and fairly apply the law, and have fallen short on

their duty to hold true to the Constitution’s original principles in their task as interpreters of how

that law should be apply in our modern criminal justice system.

Significance of the Research

Buried within the statistics of the number of lives impacted by the recent international

global health emergency arising out of the COVID-19 pandemic is the countless individuals

impacted by the criminal justice system’s hiatus of providing access to legal services and jury

trials. Those amongst the numbers affected during this time include not only accused defendants

awaiting trial and the myriad of professionals serving the system involved in prosecuting those

individuals, but also crime victims and the families of defendants awaiting trial while

incarcerated during those shutdowns. While data measuring exactly how many were affected by

government agency closures and to what effect limited or ceased access to services may have

impacted the public continues to be gathered, the reality remains that much of the problems with

criminal caseload backups have long been in existence irrespective of the recent pandemic-

related pauses to access to justice. 21

Research into how the constitutionally-protected speedy trial rights of the accused have

been impacted by courts since the creation of the balancing test outlined by the Supreme Court in

21
See Albrecht, supra note 5 (and discussed in more detail in Chapters 2 and 3 below); Freeman &
Ostrom, supra note 6, at 91; Baldwin, supra note 6 at 743 (2020).

8
Barker v. Wingo22 (hereinafter, the “Barker balancing test” or the “Barker test”) is necessary to

evaluate whether the evaluative tool falls short of meeting the original intent of the Sixth

Amendment’s writers to protect the fundamental rights of criminal defendants. What the research

will attempt to prove is that the subjective nature of the Barker balancing test does not

sufficiently prevent a burden shift onto defendants, forcing the accused to prove injury on

balance with the original responsibility and burden of the state to prosecute criminal cases

swiftly but also deliberately.23 While some efforts have been made by previous scholars to

propose amendments to the Barker balancing test24 and a number of critics have outlined ways in

which attempts to apply timelines to the management of cases to protect speedy trial rights have

routinely failed to meet their intent,25 the current body of literature exploring speedy trial issues

does not include analysis of the philosophical basis for courts’ preferential treatment of the state

in routinely failing to find any violation by the government in bringing criminal cases to a timely

disposition in keeping with the accused’s constitutional Sixth Amendment speedy trial rights.

Given that the Barker balancing test was created 50 years ago in a pre-technological

world, the study will be vital to fill the gap of analysis to summarize how the changing times

juxtaposed against an aging test tool employed by a judiciary predisposed to relying solely on

precedent rather than through applying a modern analytical view will only serve to maintain the

22
Barker, 407 U.S. at 514.
23
See Ewell, 383 U.S. at 120.
24
See, e.g., Seth Osnowitz, Note: Demanding a Speedy Trial: Reevaluating the Assertion Factor in
the Barker v. Wingo Test, 6 CASE W. RES. 273 (2016) (proposing that the assertion factor of the Barker
balancing test would alleviate an unnecessary portion of the evaluation, leaving only the burden of
proving prejudice to the defendant caused by trial delays).
25
See, e.g., Shon Hopwood, The Not So Speedy Trial Act, 89 WASH. L. REV. 709 (2014) (arguing
that, even though the federal Speedy Trial Act provides timelines with consequences for the state’s failure
to timely prosecute, courts are traditionally weak on enforcing those punishments—i.e., dismissal—and
that court dockets are nevertheless burdened with an aging caseload as a result).

9
status quo and contribute to an ever-increasing and overburdened criminal justice system, in spite

of efforts to uphold the fundamental rights of the accused to a speedy and fair trial. Not only will

this study serve to inform future application of the Barker balancing test, this research will also

challenge the judiciary to take a more proactive role in reducing criminal courts’ caseload

burdens and hold government actors accountable for their role in causing (or promoting) trial

delays, at the cost of taxpayers and to the general detriment of an applied system of fair, swift,

and deliberate justice for all citizens (whether accused of a crime, as a victim to crime, or merely

as an ancillary stakeholder in the system).

Summary of Introduction

No student of the law truly enjoys the task of searching for flaws in any part of

the legal system or pointing fingers at the stewards of that system. The purpose of the research

does not intend to lay the blame for the imperfections of the application of the law solely on the

judiciary, but instead seeks to offer a new looking glass through which scholars, policymakers,

jurists, and government actors within the justice system can restore the balance in our system of

justice to one that favors the protection of individual rights as the Constitution’s founders

intended. There is hope that through the study of this issue that faith can be restored to the

system and the conversation can be reinvigorated toward strengthening the speedy trial right and

restoring balance to the system, not just to the test of those rights. Finally, research into this issue

will support a philosophical shift in policymaking on the part of the legislature to clarify any

ambiguities in the statutory scheme of case management time standards and give the judiciary an

enhanced view of how the law could be more thoughtfully applied in a more modern context.

10
 CHAPTER 2: LITERATURE REVIEW

Issues Presented

The specific focus of research in this study centers on the tools used to examine claims of

government infringement of constitutional speedy trial and due process rights (specifically, the

balancing test created in Barker v. Wingo and case law stemming from that decision) and argues

that the research reviewed below will show that the analytical apparatus currently in existence is

faulty and fails to live up to the intent of the Founders’ intent to protect the rights of Americans

as follow:

(1) Examination of the case law in the last 50 years and scholarly analysis reveals that

the balancing test is defective, out of date, and often arbitrarily and inconsistently

applied, resulting in little effect to improving the ability of criminal defendants to

attain any sort of remedy for delays to the accused’s access to a speedy and public

trial in defense of their liberty or proclaimed innocence and prompting scholars to

propose amendments to the Barker test to cure those deficiencies;

(2) Empirical studies confirm that the incomplete, inconsistent, and infrequent

application of the test (resulting in rare findings of any violation to the

constitutional speedy rights of defendants) promotes a culture of customary delay

resulting in an overburdened justice system brimming with aging criminal

caseloads which overtax both the human and fiscal resources of criminal justice

courts and agencies;

(3) The lack of any consideration of the due process or speedy trial rights of victims

in the balancing tests does not reflect the growing trend of states amending their

constitutional frameworks to include crime victim rights in the scheme of

11
 fundamental protections afforded to citizens under that foundational governing

document; and

(4) Scholarly inspection of the consequences of recent events surrounding the

COVID-19 pandemic and other such calamitous emergencies which caused

shutdowns of services (such as, for instance, during the aftermath of the 9/11

terrorist attacks in 200126 and following weather disasters ranging from Hurricane

Katrina in 2005 to Superstorm Sandy in 2012,27) will show that courts’ often slow

adoption of technologies designed to prevent service interruptions and poor

disaster planning have had a noticeably detrimental effect on the ability for

criminal cases to proceed and eventually go to trial and, consequentially, courts’

docket congestion is only worsened due to this negligence.

With the viewpoints above as a springboard, the literature researched and reviewed below

serves as a basis toward addressing the issue of whether current mechanism for protecting the

due process and speedy trial rights of criminal defendants (using the Barker analysis test) is

sufficient and in keeping with the original philosophical intent of the Constitution’s authors.28

The review will highlight scholarly critiques of the portions of the Barker test which discuss

require analysis into the reasons for delays, which are often integrally related to the

responsibility of the government (i.e., the prosecutors and even the courts), however this research

will center much of its discussion on the portion of Barker which acknowledges that defendant

26
THOMAS A. BIRKLAND, EMERGENCY PLANNING AND THE JUDICIARY: LESSONS FROM
SEPTEMBER 11 (Feb. 18, 2004), https://www.courtinnovation.org/sites/default/files/
emergencyplanning.pdf.
27
United States Courts, From Katrina to Sandy, U.S. Courts Learn to Weather Crises (Sept. 23,
2015), https://www.uscourts.gov/news/2015/09/23/katrina-sandy-us-courts-learn-weather-crises.
28
See Alfredo Garcia, Speedy Trial Swift Justice: Full-Fledged Right or Second-Class Citizen, 21
S.W. U. L. REV. 31, 34 (1992).

12
should be afforded a “swift but deliberate” prosecution of criminal matters.29 The analysis will

also include a discussion of whether Barker and its following clarifying rulings have created an

analysis tool which is effective and performs in such a manner that it does not also impede the

rights of the people to justice as envisioned by Constitution’s authors and in keeping with the

long-standing historical importance of the doctrine supporting the Sixth Amendment’s speedy

trial clause.30

Remembering that the source of common law derives from case law or precedent created

by courts as each decides how to apply and interpret laws and statutes, it is necessary to begin

any review of the literature or case law in this research first with a review of the provisions of the

Constitution which lay the foundation for the protections afforded to accused defendants in the

criminal justice system. Then, in later sections, the research can progress to the case law which

creates the basis for current speedy trial analysis doctrine followed by an evaluation of scholarly

review articles analyzing the identified issues listed above. Whether a solution is easily

identifiable which will serve to fill the gaps in the current state of affairs with respect to the

speedy trial rights of the criminally accused on balance with related societal interests will

ultimately follow in Chapter 3. To begin the review, however, a general review of the statutory

legal scheme and then a focused inspection on prevailing scholarly thought under those premises

will support this later analysis highlighting the perceived failures of the criminal justice legal

system to fully serve all whom these laws should protect.

29
Barker, 407 U.S. at 521 (adding that “the right to speedy trial is a more vague concept than other
procedural rights”—a point which this research ultimately seeks to further expose).
30
See Garcia, supra note 28 (noting that a defendant’s right to speedy justice has been “central to
the English legal system’s notice of fairness” since as far back as the MAGNA CARTA in 1215, the ASSIZE
OF CLARENDON in 1166, and through even to American colonial times).

13
 The Fundamentals: Constitutional & Statutory Law

Three constitutional amendments address the rights at issue in this study (speedy trial and

due process rights) in one degree or another—the first among them being the speedy trial clause

within the Sixth Amendment specifically enumerating that accused individuals “shall enjoy” the

right to a “speedy and public” trial.31 The second and third constitutional amendments to be more

briefly included in the analysis are the Fifth and Fourteenth Amendments, which respectively

provide that a citizen may not be denied the right to life or freedom of liberty “without due

process of law” and extend these federally-recognized due process protections equally to all

citizens living in all states of the country.32 The primary reason to include the due process rights

of individuals in a conversation about speedy trial rights is because courts have commonly found

that speedy trial rights are necessarily included within citizens’ due process rights and can be

considered to be both substantive and procedural due process rights under the law.33

It is not just constitutionally written that individuals have speedy trial rights, as federal

legislators have also statutorily codified specifically what the expected timelines should be for

bringing a case to trial34 while most state and local courts are guided by either written statutes or

procedural rules providing time parameters within which case management and trial scheduling

31
U.S. CONST. amend. VI.
32
U.S. CONST. amend. V & XIV.
33
Lisa M. Storm, Constitutional Protections During Trial, in CRIMINAL PROCEDURE BY STORM
(2016); see also U.S. CONST. amend XIV; Klopfer v. N.C, 386 U.S. 213, 222–23 (1967) (declaring it
unconstitutional to treat individual provisions of the Bill of Rights in a piecemeal fashion and, as such,
finding that the Fourteenth Amendment due process rights extend universally according to history and
legal tradition) (citing also to the MAGNA CARTA (1215) and ASSIZE OF CLARENDON (1166)).
34
See, e.g., Speedy Trial Act of 1974, 88 Stat. 2080 (1974) (codified as amended on Aug. 2, 1979,
93 Stat. 328 (1979), at 18 U.S.C. §§ 3161–74).

14
deadlines are guided.35 Additionally, statutes of limitations which set deadlines by which an

accused must be criminally charged are usually perceived as the mechanism by the principle pre-

indictment speedy trial protection is supplied.36 To the extent that speedy trial protections exist in

the states for victims of crime, it is interesting to note that over 40 states have either amended

their state’s constitutions or enacted statutes which include provisions for speedy trial protections

for crime victims.37 Though most states have some sort of statutory or other declarative

mechanism for setting time limits, expressly or otherwise, the remaining 10 states and five U.S.

territories do not have any formal laws on the books to govern what constitutes a speedy trial and

instead merely rely on common law based on constitutional interpretation by the courts.38 It is

based on the text of these laws which courts analyze defendant’s claims that their speedy trial

right may have been violated, and for which the Supreme Court and subsequent courts’ decisions

designed the body of precedent by which to structure analysis of any such claims.

Barker’s Balancing Test & Clarifying Cases

Chief among the cases to be discussed in this study is the Supreme Court decision in

Barker v. Wingo, which created a testing tool providing a basis in the last 50 years from which

case-by-case interpretations of Sixth Amendment speedy trial violation claims.39 The test created

in Barker requires that a case-by-case evaluation be made of any claims of violations of the Sixth

35
See National Conference of State Legislatures, Speedy Trial Rights (Apr. 24, 2021),
https://www.ncsl.org/research/civil-and-criminal-justice/speedy-trial-rights.aspx.
36
See Ewell, supra note 12, at 122 (“[T]he applicable statute of limitations … is usually considered
the primary guarantee against bringing overly stale criminal charges.”)
37
See, e.g., Paul G. Cassell, Crime Victims’ Rights, in 3 REFORMING CRIMINAL JUSTICE 227
(2017).
38
Id.
39
Barker, 407 U.S. at 514.

15
Amendment speedy trial rights of a criminal defendant40 and those claims be analyzed using a

four-factor balancing analysis: (1) the length of the trial delay; (2) the reason for the delay;

(3) whether the accused asserted their speedy trial rights; and (4) the prejudice any delays may

have had on defendant.41 Although the Barker Court’s decision (using the newly described

analytical balancing tool) was that the defendant had not actually asserted his speedy trial rights

in his case (and, therefore, no serious prejudice to him could be found),42 the Court’s decision in

Barker set the precedent for how future courts should analyze claims of violations of defendant’s

Sixth Amendment speedy trial rights. Finding it necessary to further clarify the application of the

Barker test in later cases before the courts, subsequent rulings have been informative in

understanding the limitations of Barker and what remedies are available in the instance when

courts find a violation has occurred.

Not long after Barker, numerous circuit courts as well as the Supreme Court took

advantage of opportunities to revisit judicial thinking about speedy trial jurisprudence and added

to the body of doctrine in use today, with some clarifying points as to how certain factors should

be interpreted or weighted depending on the circumstances of each case. For instance, the

Court’s findings in Strunk v. U.S.43 clarified its earlier thoughts regarding the potential remedies

for a finding of a Sixth Amendment speedy trial clause violation and stressed the Court’s opinion

that the only possible remedy for a violation of a defendant’s speedy trial rights could be

“severe” and “not unique in the application of constitutional standards” when the facts of the

40
Barker, 407 U.S. at 530.
41
Id. at 530–33.
42
Id. at 536.
43
412 U.S. 434 (1973).

16
case necessarily dictate as much.44 Ultimately, the severe remedy in Strunk meant that the

specific and actual facts of the case itself necessitated that defendant’s conviction being

overturned, his sentence be vacated, and the indictment dismissed.45 Other courts, however, have

not been as willing to exercise such a dismissal remedy.46

The Eighth Circuit Court of Appeals, in Morris v. Wyrick,47 then added more clarity to

the Barker speedy trial analysis doctrine regarding the weight that should be placed on second

factor (the reasons for delay) when the government provides no reasonable explanation behind

the source of delays, as occurred in finding that because the court lacked any information as to

the state’s reasons for trial delays, the court was forced to “assume that there is no justifiable

reason and [as such, should] weigh this factor heavily against the state” in their balancing

calculations.48 Although the relief sought in Morris’s appeal was for an evidentiary hearing on

defendant’s habeas petition, the court considered the matter as directly related to his other

corresponding speedy trial claims and therefore applied Barker analysis as a support for its

ultimate decision to deny habeas relief.49

In a later matter, again before the Supreme Court, the Court decided in U.S. v.

MacDonald50 that the proper timing for raising a Sixth Amendment speedy trial claim is best to

occur after completion of a trial, rather than during the pretrial phase. Its final reasoning

specified that to consider such a claim before a trial judgment issues would be tantamount to

44
Id. at 440 (comparing to Barker, 407 U.S. at 522) (it is worth noting that the scenario described in
Barker was a hypothetical supposition, as opposed to Strunk’s analysis of facts at issue before the Court).
45
See supra note 44.
46
See, e.g., U.S. v. Jones, 524 F.2d 334, 352 (D.C. Cir. 1975) (the court was reluctant to apply
dismissal as to do so would be considered, at least by that court, to be a “draconian remedy”).
47
516 F.2d 1387 (8th Cir. 1975).
48
Id. at 1390.
49
See id.
50
435 U.S. 850 (1978).

17
asking the court to make a “speculative” evaluation of the amount of impairment to defense |

(i.e., the degree of prejudice inflicted, if any, on defendant) because “[a] pretrial denial of a

speedy trial claim can never be considered a complete, formal, and final rejection by the trial

court of the defendant’s [claims].”51

With respect to the assertion factor of the Barker test, a Tenth Circuit decision finding

that a defendant had not objected to the government’s numerous continuance requests (and, thus,

that he had failed to affirmatively assert his speedy trial rights) was, at least in part, persuasive in

that court deciding against providing relief for any of defendant’s collective claims before it as it

found support in Barker that the assertion factor was a “closely related factor to the other

[evaluative] factors.”52 The court’s analysis also conspicuously noted that defendant’s failure to

assert his right to speedy trial was just the kind of situation which the Barker Court proposed

would “make it difficult for a defendant to prove that he was denied a speedy trial.”53 This type

of commentary is indicative of the type of “real-world” application which courts have to make

when employing Barker on a case-by-case basis, the consequences of which differing depending

on the relationship or status of the party affected by the decision.

Though the above cases do not represent a full and complete recitation of the entire body

of case law succeeding Barker (as that catalog is quite voluminous), the intent is to illustrate that

specific factors of the Barker test are not only employed collectively in a weight-balancing test,

but the test’s individual factors may also stand out (or stand alone) in a court’s weighted case

analysis in differing ways as applied to speedy trial claims on an ad hoc basis. The following

51
Id. at 858–59 (stating also that the question of a claimed speedy trial violation raised in a pretrial
motion to dismiss “necessarily ‘remains open, unfinished [and] inconclusive’ until the trial court has
pronounced judgment” (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949))).
52
See U.S. v. Gomez, 67 F.3d 1515, 1522 (10th Cir. 1995) (quoting Barker, 407 U.S. at 531).
53
Id. (quoting Barker, 407 U.S. at 532).

18
section considers a review of literature accounting for the impact on competing interests within a

complex system driven by a culture of acceptable delay and how attention to those interests will

often be disregarded in challenging times and following extreme world events.

Crime Victims, Criminal Courts, and Calamity

Among the many philosophical concerns of criminal law is to develop a system of laws

protecting society from harm and punishing individuals who violate the law and cause harm, thus

committing crimes which are either considered “victimless” (i.e., generally affecting society) or

crimes which cause specific harm to another individual or entity.54 With respect to the latter, the

modern criminal justice system has progressed beyond a historical treatment of harm to victims

which required the injured party to bring “private” prosecutions against a convicted criminal to

achieve justice or collect restitution in compensation for damages55 to the recent movement to

amend the federal and states’ constitutions and codify the due process rights of crime victims and

provide remedy for infringement of those rights. One article found in the research provides a

solid basis from which to begin a conversation about the problems of time delays in the criminal

justice system and their effect on victims of crimes.

54
Carol A. Veneziano, Victimless Crime, in WILEY SERIES OF ENCYCLOPEDIAS IN CRIMINOLOGY
AND CRIMINAL JUSTICE: THE ENCYCLOPEDIA OF CRIMINOLOGY AND CRIMINAL JUSTICE (J.S. Albanese
ed., 2014), https://search-credoreference-com.ezproxy2.apus.edu/content/entry/wileycacj/
victimless_crime/0 (last accessed Jan. 11, 2023); see also, e.g., PHILOSOPHICAL FOUNDATIONS OF
CRIMINAL LAW (R.A. Duff & Stuart Green, eds., Jan. 24, 2013).
55
See Cassell, supra note 37, at 229 (citing William F. McDonald, Towards a Bicentennial
Revolution in Criminal Justice: The Return of the Victim, 13 AM. CRIM. L. REV. 649 (1976)).

19
Weaponizing Continuances

In a law note article entitled Note: Victimizing the Victim Again: Weaponizing

Continuances in Criminal Cases,56 the author provides a brief overview of the modern history of

the victim rights movement affecting the law and impacting cases in both federal and state courts

before discussing the relative nature of defendants’ rights to a speedy trial and how continuances

can be, as stated in the writer’s words, “used [by defense attorneys] as weapons, which

unfortunately results in revictimizing the victim.”57 The article examines the implications of

Barker, acknowledging that the decision lacked consideration of victim impact in large part

because crime victim rights did not yet exist at the time in the body of law preceding its ruling in

that case,58 despite acknowledgment that the “right to proceedings free from unreasonable delay”

place the “societal interest in providing a speedy trial which exist[] separate from ... the interests

of the accused” in direct opposition from each other.59 Explaining the traumatic harms inflicted

on victims throughout the life of a criminal case (from the time of the initial commission of the

crime and then repeatedly afterword as victims wait out the time it takes for the criminal justice

system to eventually bring an accused perpetrator to trial), the author looks deeper at the

conflicting interests of victims, the accused defendant, and the prosecuting agencies responsible

for balancing all parties’ interests while acting “neutrally and justly.”60 The note finally

concludes with a suggestion that federal statutes be amended to include victims’ rights

56
Kayla Lasswell Otano, Victimizing the Victim Again: Weaponizing Continuances in Criminal
Cases, 18 AVE MARIA L. REV. 110 (2020).
57
Id. at 114.
58
Id. at 121–22.
59
Id. (quoting Speedy Trial Act, supra note 34, at § 3161(a)(7) and Barker, 407 U.S. at 519
(emphasis omitted)).
60
Otano, supra note 56, at 122–31 (quoting Bennett L. Gershman, Prosecutorial Ethics and
Victims’ Rights: The Prosecutor’s Duty of Neutrality, 9 LEWIS & CLARK L. REV. 559, 559 (2005)).

20
protections regarding time delays in this hopes that doing so might force judges to consider the

interests of victims before deciding whether to grant or deny continuances (which is a

discretionary right of a judge) while also “weighing ‘the best interest of the public’ against the

defendant’s interests.”61 Although this literature review will not detail the specifics of any one

individual scholarly article which discusses the power and control that government prosecutors

wield in the speed of how and when cases travel through the courts (from initial charging

indictments to when and what plea offers might be proposed to defendants toward a non-trial

resolution or finally to reach a trial date before jury), the volume of that inspection in the

research in recent years is sizeable and demonstrates that the interests of the state is a topic

worthy of separate study. This review is tailored instead to the identification and discussion of

the outlying interests apart from the government which this researcher believes requires closer

inspection.62 Later analysis of the issue in Chapter 3 will examine the state’s role in the criminal

justice system is integral to any possible proposed solution to repair any deficiencies regarding

time in the current multifaceted system burdened with costly delays, however this review will

continues with a second discussion of crime victims’ rights and the universe of study built on and

around that topic, especially following the Barker Court’s decision issued in 1972.

61
Id. at 131 (quoting Speedy Trial Act, supra note 34, at §3161(h)(7)(A) and proposing that
“adding the right would be a safeguard to victim’s rights [... and] counteracts the risk of treating victims
as a whole like mere witnesses, or worse....”).
62
See, e.g., Katharine W. Batchelor, A Perfect Storm: Prosecutorial Calendar Control and the
Right to a Speedy Trial in the North Carolina Criminal Court System, 56 WAKE FOREST L. REV. 169
(2021) (arguing that the lack of a speedy trial statute in that state allows prosecutors to leverage their
authority to the detriment of defendants’ speedy trial rights); Ronald F. Wright, Prosecutor Institutions
and Incentives, in 3 REFORMING CRIMINAL JUSTICE 49 (Eric Luna ed., 2017) (proposing that many
prosecutors operate in a vacuum, myopically blind to the systemic effects of their work, and suggesting
that these agencies develop metrics for successful prosecution and institute evidence-based processes
which promote sound prosecution principles).

21
Crime Victims Movement

Since the Crime Victims’ Rights Movement began in the 1970’s, there has been a push

by a coalition of victim rights advocates for additional reform to the criminal justice system to

address a perception that victims had been relegated to a position of being the “forgotten man” in

the grander scheme.63 Attorney, professor, and long-time victim rights advocate Paul Cassell

(widely considered the preeminent modern scholar and expert on the issue of crime victims’

rights) has written extensively on the subject.64 In a recent article, titled Criminal Law:

Protecting Crime Victims in State Constitutions: The Example of the New Marsy’s Law for

Florida, he and co-author Margaret Garvin provide an extensive look at the efforts and

accomplishments of the coalition to effect change in the statutory scheme by curing defects in

state constitutions65 by adding provisions for victims’ rights protections for crime victims to

these foundational governing documents.66 The author features an evaluation of how the State of

Florida’s most recent constitutional amendments to provisions protecting victim rights has cured

63
See Cassell, supra note 37, at 229 (quoting McDonald, supra note 55, at 650).
64
See, e.g., id., at 228 n.3 (citing to at least four of the many scholarly publications authored or co-
authored by Cassell on the subject). Research note: this study focuses on just a few of his writings
pertaining to crime victims’ rights, but this examiner has consulted more than just those discussed in
detail herein.
65
Other legal scholars have also criticized legislative efforts to codify victim rights in states’
criminal codes and propose continuity across the states will help consolidate a universal doctrine for
courts to consider on the local and state levels. See, e.g., Mary Beth Ricke, Note: Victims’ Right to a
Speedy Trial: Shortcomings, Improvements, and Alternatives to Legislative Protection, 41 WASH. U. J. L.
& POL’Y 181 (2013) (also criticizing the underutilization of so-called victims bill of rights statutes already
on the books in many states); see also Douglas E. Beloof, The Third Wave of Crime Victims' Rights:
Standing, Remedy, and Review, 2005 B.Y.U. L. REV. 255 (2005) (describing the illusory nature of the
application of victim rights laws, citing the dysfunctions of systems which do not extend protections to
victims either through statute or in state constitutions, and supporting the position that more states and
even the federal government should adopt changes to the laws as proposed by the broad coalition of
victim rights advocates supporting various individual causes).
66
Paul G. Cassell & Margaret Garvin, Criminal Law: Protecting Crime Victims in State
Constitutions: The Example of the New Marsy’s Law for Florida, 110 CRIM. L. & CRIMINOLOGY 99
(2020).

22
past defects to the law which “[fell] short of their goal of ensuring that victims’ interests are

adequately protected throughout the criminal justice system” and have elevated that state to the

level of “vanguard” in the effort to add participatory rights and speedy trial protections to the

criminal trial process.67 With respect to speedy trial rights of crime victims, the article’s writers

applaud the recent Florida constitution’s victims’ rights amendments which extend to victims the

right “to proceedings free from unreasonable delay, and to prompt and final conclusion of the

case” and are “designed to be the victim’s analogue to a defendant’s Sixth Amendment right to a

speedy trial.”68 Mirroring many other scholars who lament the unfortunate and compounding

consequences of delays which cause additional trauma for victims awaiting trial and suffering

excessively as a result,69 Cassell and Garvin give praise that the new Florida amendments

implement criminal case management timelines, largely mirroring the standards found in the

federal Speedy Trial Act and serving to give Florida crime victims “broad and overarching rights

to ‘due process,’ ‘fairness,’ and ‘respect for the victim’s dignity.’”70 Much like the conclusion of

the study detailed in the next reviewed article, the hope of crime victim advocates is to effect a

cultural change in the American criminal justice system while providing assurances that victims

are actively included in the balancing equation of policy choices and court decisions affecting the

speed at which criminal cases reach disposition. To this end, this review now moves to the area

67
Id. at 100–02.
68
Id. at 120–21 (quoting ARIZ. CONST. art. II, § 2.1(A)(10) and CAL. CONST. art. I, § 28(b)(9)).
69
See Godbold, Speedy Trial—Major Surgery for a National Ill, 24 ALA. L. REV. 265, 285 (1972)
(“The prophylactic effect of the clause as a protection of the innocent is substantially eroded if the fact of
conviction in unimpaired trials removes from appellate consideration the interests of minimizing the
consequences of incarceration and public accusation.”).
70
See id. at 122, 137 (quoting directly from FLA. CONST. art. I, § 16(b)(1), a subsection of the
newly amended constitution section which ensures that, from the time of victimization throughout the
criminal process, victims are respected and have the right to achieve justice and are ensured a meaningful
role in the process); see also, e.g., Speedy Trial Act, supra note 34.

23
of discussion for this research which relates the culture of the criminal justice system to a

genuine quantitative (as well as qualitative) analysis of the complex problems in the system

contributing to the pervasive glut of delays weighing down and taxing court dockets across the

nation.

Culture of Delays

In Justice Delayed: The Complex System of Delays in Criminal Court,71 a team of

academic scholars joined together to undertake the task of gathering, analyzing, and interpreting

real-world data relating to felony-level criminal case-processing time outcomes from the Cook

County, Illinois, court system over a 10-year period (from 2011 to 2021). Taking into account

the large timeframe of data considered by the study, from a sampling derived from Cook County,

Illinois, which is the second-largest county in the U.S. and the largest in the state of Illinois (with

a current reported population of 5.3 million residents),72 the authors were able to build on

previous studies identifying and examining the sources of micro-level and macro-level

dysfunctions in the larger court system, making the sample study large enough to.73 Similar to

most all the literature reviewed during this research, this article begins with a review of law and

literature relevant to the subject of speedy trial case delays, discussing the Barker case and later

rulings which has resulted in an “evolving” and inconsistent standard of enforcement.74 The

71
Albrecht, supra note 5, at 747.
72
Id. at 762 n.92 (citing U.S. County Populations 2022, WORLD POPULATION REV.,
https://worldpopulationreview.com/us-counties/il/cook-county-population (last accessed Jan. 12, 2023).
The data presented here updates the article’s reported population numbers, more accurately reflecting
present figures.
73
Id. at 760 (referring to n.17 and the study at Maria Hawilo, et al., How Culture Impacts
Courtrooms: An Empirical Study of Alienation and Detachment in the Cook County Court System, 112 J.
CRIM. L. & CRIMINOLOGY 171 (2022)
74
Id. at 757 (citing Timothy J. Searight, The Sixth Amendment Right to a Speedy Trial: Applying
Barker v. Wingo after United States v. Doggett, 22 W. STATE UNIV. L. REV. 61 (1994)).

24
authors then move forward to an inspection of the scholarship concentrated on the subject of case

processing delays before more discussing how taking the novel approach of applying the

economic theory of path dependency provides a framework for understanding the “origin and

continuing nature” of delays under the premise that “a path-dependent organization is one where

a sequence of decisions limits future choices ... [which] means that by the time you near the end

of a complicated process, you only have one realistic set of choices to make at the very end.”75

Finally, after a thorough analysis and presentation of the data reviewed from over that 10-year

span,76 the study concludes that “the sequence of decision-making ... become[s] so entrenched

and reified that it creates a locked-in path that makes it impossible to deviate from without

intervention.”77 Interestingly, the authors also conclude that the prolonged effect of such a

situation leaves “a deeply intertwined system of delays that is no longer being propelled forward

by individual decision, but rather by system-wide expectations”—or, more simply put, a system

of business as usual with repeated and even expected delays, where “yesterday’s continuances

become today’s problems,” resulting in a court system which “struggles to balance its caseload

while seeking interventions designed to shock the system into efficiency.”78 It is from this

premise that this literature review will now turn to some very recent articles which effectively

75
Id. at 764–65 (explaining the basis of applying a stricter form of path dependency theory as
promoted in Georg Schreyogg & Jorg Sydow, Understanding Institutional and Organizational Path
Dependencies, in THE HIDDEN DYNAMICS OF PATH DEPENDENCE: INSTITUTIONS AND ORGANIZATIONS 3,
3–5 (Goerg Scheyogg & Jorg Sydow eds., 2009)).
76
The time-period studied also notably includes data extracted from up to a year into the COVID-
19 national healthcare emergency, which thus includes a brief timeframe which saw courts issuing
administrative orders for suspension of services and a period of “near extinction” of jury trials, starting in
early spring of 2020 and beyond. A more thorough exploration of this issue will follow in Chapter 3 and
in connection with the literature reviews immediately following this section. See also, e.g., Albrecht,
supra note 5, at 771 n.120 (discussing and referring to number of very recent studies of the effects of the
pandemic shutdowns on caseload backlogs, specifically in the Cook County, Illinois, system).
77
Albrecht, supra note 5, at 784–85.
78
See, e.g., Hopwood, supra note 25.

25
renew the scholarly dialogue surrounding how speedy trial rights are affected in times of

emergency and what efforts, if any, are made by the controlling stakeholders in the criminal

justice system responsible for administering justice services and preserving access to justice to

defendants and victims.

Rights versus Interests

Since the start of the COVID-19 global pandemic in 2020, concerns have reemerged in

academic literature that outdated case management processes and tools designed to protect the

rights of the people (including the Barker test of speedy trial rights) are inadequate to address the

potential for harm to the constitutional and procedural due process speedy rights of the accused

(and the rights of the victims of crimes, as will be discussed further in Chapter 3). Two specific

articles were informative in this research in that they provide a glimpse into the discussion of

how procedures based on aging law and precedent may not stand the test of time when

technology and creative processes which are otherwise helpful in connecting people and services

are either not available nor quickly implemented or when courts and government agencies fail to

adequately plan for reasonably foreseeable events (such as a court closure for a natural disaster

or health emergency) or to implement protocols to continue operations in such events.

In the first article entitled The Burden of Time: Government Negligence in Pandemic

Planning as a Catalyst for Reinvigorating the Sixth Amendment Speedy Trial Right, the authors

reflect on how the recent court closures (occurring at the direction of health officials in attempts

to slow the spread of the COVID-19 virus through public gathering spaces) were not novel

events in history, and alleges that failures to properly plan for how to continue operations and

services (such as holding court hearings, conducting jury trials, or even allow for parties to

continue pretrial activities through alternative means, such as through virtual meetings or

26
remotely through other communication or file-sharing services) essentially amount to gross

negligence on the part of the government.79 The article surveys in depth the long history of Sixth

Amendment jurisprudence, before narrowing its inspection specifically on the Barker test as the

mechanism for reviewing claims of a violation of the constitutional speed trial right, while

exploring the individual and institutional interests of the defendant whose rights are delayed

when suspensions to services prevent him from moving forward on his case and when

government agencies (and courts) fail to meet their burden to mitigate against unnecessary

delays to bringing the accused to trial.80 Acknowledging that no clear conclusions can yet be

derived about how courts in general will manage or recover from the anticipated backlogs and

exaggerated delays which will only serve to further clog court dockets, the author instead offers

the proposition that the future analytical framework of speedy trial rights properly weigh the

government’s negligence through lack of planning as a significantly contributing factor balanced

against the government if (and likely when) claims are brought for a violation of those Sixth

Amendment rights in the wake of the pandemic.81

The second article reviewed relating to post-pandemic considerations extends the

conversation of the previous article’s propositions and expands the discussion to include a

review of the ways courts could have (and some did) continue to deliver services (including

conducting socially distanced jury trials) through the implementation and use of video

conference technologies. In a law review article entitled, Revenge of the Sixth: The

Constitutional Reckoning of Pandemic Justice, the author argues that the pandemic served as a

79
See, e.g., Hildebrand & Cordero, supra note 15, at 1.
80
Id. at 2–27.
81
See id. at 29–32 (proposing that to do so would “reinvigorate” the Sixth Amendment speedy trial
right and work to hold the government accountable for its negligence and the harms that avoidable delays
can inflict on not just defendants, but on others, such as crime victims awaiting justice).

27
type of stress test, exposing the issues discussed by the previously reviewed article in how to

deal with the government’s and courts’ obligations to protect the speedy trial rights of the

accused when forces outside of its control require the criminal justice system to restrict in-person

proceedings in the interest of public health.82 In his evaluation, the writer cites extensively to

case law dealing with the issue of holding public jury trials (the correlating right attached to the

speedy trial right in the Sixth Amendment’s statement that “the accused shall enjoy the right to a

speedy and public trial, by an impartial jury [...], etc.”83) and the implications of how utilization

of technology might impact those and other constitutional rights.84 Though this article and other

reports consulted in this study85 is not entirely expositive of how the use of technology impacts

speedy trial rights per se, this author’s inspection of the closely-related issues of overcoming

barriers to holding jury trials (even if only remotely) leads to the suggestion that through proper

planning (and perhaps legislative action) an accused defendant may not be forced in the time of

an emergency shutdown of services to be burdened with a choice between asserting his speedy

trial rights and or sacrificing his right to a public jury trial simply because the government (and

courts) cannot accommodate protecting those rights on balance with the public health concerns

of society.86

82
See Draper, supra note 16, at 205.
83
U.S. CONST. amend. VI.
84
See, e.g., Draper, supra note 16.
85
Together, these articles published by case management specialists have similarly made
recommendations about how the tracking of time to disposition for different types of cases can inform
better practices and policy-making decisions in the effort to improve outcomes and reduce delays and
waste of resources in the criminal justice system. See, e.g., Brian J. Ostrom, et al., NAT’L CTR. STATE
COURTS: TIMELY JUSTICE IN CRIMINAL CASES: WHAT THE DATA TELLS US (2020),
https://www.ncsc.org/__data/assets/pdf_file/0032/69890/Timely-Justice-in-Criminal-Cases-What-the-
Data-Tells-Us-v2.pdf; Freeman & Ostrom, supra note 6, at 91.
86
Id. at 259–64 (discussing the potential abuses of the “trial penalty” in plea-bargaining while
access to trials is limited by directives to limit in-person gatherings and proposing statutory amendments

28
 Now that this review has identified just a few of the complex considerations which

plague the difficult question of how speedy trial rights can be more effectively protected and

preserved, and how the problem does not just affect the criminally accused, yet another volume

of study of the disparate applications of Barker has produced criticisms and proposals to amend

or even abandon portions of the Barker test, toward which this literature will now turn for

inspection.

Scholarly Proposals to Amend or Abandon the Barker Test

After considering the above reviews where scholars have difficulty reconciling the ways

that speedy trial rights may impact the various stakeholders in the criminal justice system, both

in the regular course of business and in times of calamity, two specifically selected journal

articles within the subject field illustrate ways in which the scholarly community has attempted

to propose solutions to fix perceived faults in the current test. The first article reviewed seeks to

add to the evaluative device outlined in Barker by proposing an expansion of the required

analysis using the Barker balancing test tool, while the second proposes an amendment to the

Barker test to expand the required valuation of one specific factor of the evaluative test that

analysis of Sixth Amendment speedy trial violation claims. A review of each follows

immediately below and a brief analysis of both will follow in this chapter’s summary.

In Brian P. Brook’s article titled New Speedy Trial Standard for Barker v. Wingo:

Reviving a Constitutional Remedy in an Age of Statutes,87 the article discusses the application of

the Barker balancing test when defendants seek constitutional relief (as opposed to statutory

to the Speedy Trial Act and similar state laws, or by amendment to the Constitution, as in instrument to
guarantee fair and constitutional jury trials always, and even during a pandemic shutdown).
87
Brian P. Brooks, New Speedy Trial Standard for Barker v. Wingo: Reviving a Constitutional
Remedy in an Age of Statutes, 61 U. CHI. L. REV. 587 (1994).

29
relief) and concludes that common law jurisprudence currently in effect surrounding Sixth

Amendment speedy trial rights (stemming from Barker and subsequent affirming rulings) does

not serve to protect the societal or individual interests.88 Brook’s article begins with a discussion

of the historical underpinnings in the common law prior to the Barker decision, the latter of

which the author claims to have been an attempt by the Court “to bring some order to speedy

trial jurisprudence” but that the Barker test was merely a consolidation of tests previously and

variously applied to cases preceding Barker rather than a “radical innovation” in speedy trial

precedent.89 After a brief historical review, Brooks then details how appellate courts have

dissimilarly approached speedy trial claims, with a split between circuits taking a “straight”

balancing approach and other appellate circuits taking a more “weighted” approach, with a heavy

emphasis placed on the prejudice factor as having the most importance for a court to find a

speedy trial violation.90 In this analysis, Brooks argues that even the Supreme Court itself

misapplies its own Barker balancing test when reviewing lower court decisions involving speedy

trial claims.91 In response to this scrutiny of gross mishandling of speedy trial rights in

jurisprudential review, Brooks extols the virtues of the development and statutory application of

the federal Speedy Trial Act,92 observing that “separating the interests protected by the speedy

trial right from the incentives that may lead one party or the other to seek trial delay ...

demonstrates one way to create positive incentives for prosecutors to bring cases to trial quickly

88
Id. at 611.
89
Brooks, supra note 87, at 588.
90
Id. at 592–95.
91
See id. at 595.
92
See Speedy Trial Act, supra note 34.

30
and vindicate defendants’ constitutional interest in speedy trials.”93 Following this observation,

the author exposes shortcomings to the differing approaches used in interpreting the application

of the Barker test, and subsequently proposes an alternate approach, suggesting it be called a

“motive” test, with the goal that analysis of speedy trial claims should place more emphasis on

probing the reason for delays than on the determining how prejudice against the defendant

should proverbially tip the balancing scales.94 Brooks finalizes his pitch using supporting

reference to specific arguments offered by various Supreme Court justices in a number of cases

dealing with Sixth Amendment speedy trial analysis and argues that to implement the proposed

motive test will allow courts to more productively manage delay incentives by (a) reducing the

defendant’s incentive to delay asserting speedy trial rights (thus increasing defendant’s chance

that this assertion balancing factor will weigh more favorable for them) and (b) dissuading the

state from acting improperly, out of bad faith, or negligently managing its prosecution of the case

(all actions which the speedy trial guarantee is designed to fundamentally protect against).95

In a more recent article written by Eliot Tracz, titled Revising the Right to a Speedy Trial:

Reconciling the Sixth Amendment with the Speedy Trial Act,96 a different proposal as to change

the Barker test is presented for consideration. As the article’s title implies, the observations made

by this author rest largely on the comparison of the historical intent of the speedy trial right

included in the Sixth Amendment to the statutory mechanism for trial management in federal

93
Brooks, supra note 87, at 603, n.89 (internal quote omitted) (citing U.S. v. Saltzman, 984 F.2d
1087, 1091 (10th Cir. 1993) and noting that “the Supreme Court has consistently interpreted the Sixth
Amendment speedy trial guarantee as protecting both individual and societal interests”).
94
Id. at 608 (clarifying, however, that a “[t]he ‘motive’ label [should] not imply a free ranging
judicial inquiry into the psychological motivations driving [either parties’] behavior”).
95
Id. at 608–10.
96
Eliot T. Tracz, Revisiting the Right to a Speedy Trial: Reconciling the Sixth Amendment with the
Speedy Trial Act, 47 CAP. U. L. REV. 1 (2019).

31
cases. Driving the conversation in the article, Tracz argues that the basic foundation of criminal

law jurisprudence laid in the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments contain

crucial rights which exist to protect against “the danger that government officials might attempt

to rule in their own self-interest at the expense of [citizens’] sentiments and liberty.”97 Following

an explanatory review of Barker and recounting the intent of each of the parts of the test created

in that case,98 the author describes the ways in which the Speedy Trial Act gives “meaning” to

protecting these rights in prescribing timelines for the management of criminal cases in federal

courts, outlining reasons for exceptions to meeting the set deadlines (including the requirement

for judges to make specific “ends-of-justice” findings to justify and record reasons for any delays

or continuances), and establishing remedies for when violations occur (such as the issuance of

sanctions in the form of fines or orders of dismissal of the indictment in the worst of

situations).99 Regarding delays caused by repeated, open-ended continuances granted by

courts,100 Tracz exposes ways in which lower courts have circumvented the Speedy Trial Act

(and Supreme Court’s interpretation of the plain language of the Act) and have effectively

rendered the Act “toothless” in its application.101 Expanding on this claim, the author proceeds

with a comparison of the interests protected by the Sixth Amendment speedy trial right,

organizing them by the parties involved (i.e., balancing the interests of accused individuals

97
Id. at 2 (quoting AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 82
(1998)).
98
See id. at 3–8.
99
See id. at 8–12 (quoting H.R. Rep. No. 93-1508 (1974), reprinted in 1974 U.S.C.C.A.N. 7401,
7407–08).
100
See id. at 12–14 (noting also that the Supreme Court, in Zedner v. U.S., 547 U.S. 489 (2006),
rejects the notion that defendants may “opt out” and waive speedy trial rights under the Speedy Trial Act,
because the Court found the Act was “designed to protect the interests of the defendant as well as the
interests of the public,” the latter of which cannot be protected if defendants were allowed to universally
opt out of enforcement of the timelines prescribed by the law).
101
Tracz, supra note 96, at 13 (citing Hopwood, supra note 25, at 719).

32
against societal interests)102 before explaining the differences in applying Sixth Amendment

analysis using only the Barker test versus speedy trial right assessments which include the

application of the Speedy Trial Act’s requirements. Ultimately, the author proposes that the

Barker test be retired in favor of leaning toward a reliance on legislative tools to clear up any

ambiguity in the Sixth Amendment and provide consistency in speedy trial analysis different

than the current record of unpredictable and even inflexible ways that courts apply Barker in

evaluating potential violations of the speedy trial right.

Summary of Review

Though this chapter contains only a selected review of content from the plethora of legal

cases and law review articles consulted during this research, the above articles represent an

outline of the examination to follow tying the focus the research and the problem to be explored

to an analysis of the four-factor balancing test created in Barker v. Wingo as a perhaps

incomplete or improper tool for evaluating the speedy trial right of the criminally accused. The

research relied upon throughout this study and in the analysis below centers around an inspection

of the functional application of each of the four fundamental Barker factors as prescribed by the

Supreme Court in its creation of the balancing test. The complicated implications of what

scholars criticize is an inconsistent treatment of the fundamental speedy trial right under Barker

and courts’ imbalanced handling of the interests of the accused compared against the combined

interests of society and crime victims to speedy justice will be surveyed and discussed on a

backdrop of test cases where Barker has been applied. The existing scholarly literature on these

subjects—along with an examination of preliminary inquiries into the speedy trial consequences

102
See id. at 15–18.

33
of an increase in trial delays attributable to the recent global COVID-19 pandemic—will likely

inform this study’s eventual conclusions suggesting ways the legal and scholarly community can

fill the gaps in current understandings of speedy trial issues with the potential for proposed

solutions designed to reinvigorate and further preserve the intent of the Constitutional framers to

protect and guard against the potential for the government to abuse the fundamental rights of its

citizens under the law.

34
 CHAPTER 3: ANALYSIS

American courts have almost universally recognized that any evaluation of a speedy trial

violation claim involves a complex process of considering not only the specific facts of the

treatment of time in a case, but also a contemplation of a myriad of other issues and the

execution of delicate balancing act between considering the individual rights of the accused and

protecting the interests of society in general. To appreciate the complexity of the issues facing

judges in their completion of this task, it is necessary to analyze, even if only briefly, some of the

points of consideration which might arise in their deliberation on the issue.

To this end, the first section of this chapter will provide the bulk of the analysis of this

chapter, beginning first with a discussion of the history of speedy trial jurisprudence before and

after Barker v. Wingo memorialized the Supreme Court’s test for determining when and if a

violation of those constitutional rights have occurred, and will follow the outline of the four

factors for evaluation using that test to identify how courts treat the four factors individually in

their decision-making analytical processes. Where appropriate, the analysis will also include an

inspection of the similarities and differences between how state and federal laws codify and treat

the speedy trial right in either statute or rule in relation to each factor. The second section of this

analysis explores the delicate balance of interests of the accused defendant against the general

interests of society which the Constitution also serves to protect, with a specific focus on the

consideration of crime victims as a typically under-appreciated and even ignored party of the

criminal justice system in the evaluation of speedy trial concerns after a limited introduction

acknowledging the role the courts play in preserving and protecting those rights. The section will

conclude with a brief consideration of the potential impact on other constitutional rights on

balance with courts’ consideration or evaluation of the speedy trial right under Barker. The third

35
and final section of this chapter will conclude this analysis chapter with a brief evaluate of how

speedy trial law under Barker can be seen to shift the burden of proof from the government (to

be responsibility for prosecution of alleged criminal acts and to prove the guilt of an accused

defendant) onto a defendant (to prove that any delay to bring him or her to trial somehow

prejudiced their ability to defend themselves) and the efforts of scholars and courts to rebalance

the scales of burden which the Barker test seems to have generated in the practical application of

the evaluative tool. First, the fundamentals under Barker which guided this research should be

explored and therefore follow.

Barker Fundamentals & Differences in Application and Law

Though some scholars consider the origins of the right to a speedy trial as being

“ancient,”103 the contemporary understanding of the right in American jurisprudence has truly

only had a history of about 100 years of inspection. The most common understanding of the right

to a speedy trial stems from the general legal fact that a speedy trial is “one conducted according

to prevailing rules, regulations and proceedings of law, free from arbitrary, vexatious and

oppressive delays.”104 Barker v. Wingo is but one of cases involving an analysis of Sixth

Amendment speedy trial rights, however it is the first one to culminate previous inspections into

103
Brooks, supra note 87, at 587 n.1 (noting the origins of the right reaching as far back as first seen
in 1166, in the ASSIZE OF CLARENDON, and in 1215, in the MAGNA CARTA); see also Klopfer v. N.C., 386
U.S. 213, 223–26 (1967) (acknowledging the fundamental nature of the speedy trial right, evidenced by
the fact that it is prominently placed within the Constitution and later incorporated into law by all the
states, in some form or another).
104
See Shepherd v. U.S., 163 F.2d 974, 976-78 (8th Cir. 1947) (finding, however, that the “right of a
speedy trial is relative” and regardless that a speedy trial right may be found to have been violated, the
remedy of a dismissal or discharge of the charges may not always be reasonable on balance with the
state’s justified reasons for the delay and the public’s interests).

36
a somewhat coherent test form for use by later courts.105 For purposes of this section, and

because this research focuses on the worth of the Barker decision as the modern tool for

determining whether a violation of this trial right has occurred, the following examination is

generally organized by the four factors highlighted by the Barker Court as the relevant

considerations courts must make in evaluating claims of a speedy trial guarantee violation

—e.g., the amount of time of delay, the reason for the delay, defendant’s assertion of the right,

and prejudice to the defendant.106 In simplistic terms and adopting the use of the information-

gathering framework of the “5 W’s and a How” (of who, what, when, where, why, and how)

these factors could also be equated to: (1) the “when” (which in essence triggers the discussion to

answer the analytical question of “at what point did the amount of time elapsed become

excessive and violate defendant’s speedy trial right”); (2) the “what” (referring to the reasoning

as to what event or events happened to cause or contribute to the delays at issue); (3) the “how”

(as in, how and how often did defendant let the government know he wanted his speedy trial

rights to be observed and applied in his case so he could achieve a final resolution to his case);

and, finally (4) the “why” (the portion of the analysis which examines whether the state’s delay

in bringing him to trial caused any injury to the defendant and his ability to fully present a

defense to the charges he faces, and why this harm to defendant should be remedied).107 Because

105
See Barker, 407 U.S. at 515–16 (acknowledging the decision to be the first wherein the Court was
“compel[led] to make ... an attempt” to “set out the criteria by which the speedy trial right is to be judged”
(citing Dickey v. Fla., 398 U.S. 30, 40–41 (1970) (Brennan, J., concurring)).
106
See, e.g., Barker, 407 U.S. at 514.
107
This framework offers an alternate viewpoint from which to explain the background of how the
separate factors fit together in a more personal connection to the defendant who seeks remedy for a
violation of his fundamental speedy trial rights. In this, the missing ‘who’ and ‘where’ elements are
already known, in that the ‘who’ is undoubtedly the defendant claiming the violation of a speedy trial
right and the ‘where’ is that the violation has allegedly occurred within the context of the pretrial criminal
justice process.

37
time (or the “when”) is the necessary element for any evaluation of “speed” as it relates to a

“speedy trial right” and the use of Barker as the tool for judging and claim of a violation of the

right, the first factor analysis of time will be longer than the following since the threshold first

lies in that beginning factor before any other factors will be considered by the courts.108

Factor 1: Time (or, the When)

Beginning this time factor discussion, the earliest recorded Supreme Court opinion

reviewing the Sixth Amendment speedy trial right came about in the 1905 case of Beavers v.

Haubert.109 In that case, the defendant faced a myriad of criminal charges, which the prosecution

decided to remove from consideration at the state level and instead elevate for trial on the federal

level. Ultimately holding that the speedy trial rights of the defendant in that case were not

affected by the government’s jurisdictional jockeying, the Supreme Court in Beavers determined

that any analysis of an accused’s speedy trial rights must be balanced against the practical

concerns of the administration of justice, stating that finding that the right to a speedy trial is

“necessarily relative ... [and] consistent with delays, ... [but that the right] does not preclude the

rights of public justice.”110 This general statement forms the basis from which later courts (and

especially the Barker Court, almost 70 years later) would determine that any analysis of claims

of a speedy trial violation should be considered on a case-by-case (or ad hoc) basis against the

specific backdrop of the facts of the individual case at issue and to also take into the account a

consideration of the rights or interests of public justice (the latter of which will be discussed in

greater detail below). It is at this point that the treatment of time factor analysis (and virtually

108
See, e.g., Joseph, supra note 13, at 611 (analyzing the application of speedy trial rights and
advocating for universal change to the treatment of the right generally).
109
198 U.S. 77 (1905).
110
Id. at 87.

38
any speedy trial analysis) splinters into various forms and illustrates how complicated any

speedy trial analysis can be under Barker and based on the assorted and unique facts of each

case.

In Klopfer v. N.C., the Supreme Court found that the “fundamental” right to a speedy trial

is “one of the most basic” rights in the Constitution and as “basic” a right as any of the others

enumerated in the Sixth Amendment.111 Though not in full agreement as to the basis for the end

result, the Klopfer Court’s ultimate ruling (though notably pre-dating Barker) determined that

granting the government an open-ended, indeterminate deadline to decide whether to retry a case

(after the first trial ended with a hung jury, i.e., no guilty verdict) without a showing of sufficient

good cause to continue the delay was a clear violation of defendant’s speedy trial rights under the

Sixth and Fourteenth Amendments.112 Scholars have identified the significance of Klopfer in

speedy trial jurisprudence as the moment that the Court transformed the “relatively moribund”

speedy trial right into a reminder that “the right to speedy justice [is] as integral to the proper

functioning of the criminal process as other procedural safeguards afforded criminal defendants

under the Sixth Amendment.”113 Though this outcome would suppose that the courts might have

a universal and clear bright-line timeframe in mind when procedurally determining how much

time is too much time when applying this first Barker factor, courts have nevertheless long been

challenged (and even “embarrass[ed]”) by the task of determining the practical meaning of what

the Constitution’s writers meant by the “confusing” words “speedy trial” in their preservation of

111
Klopfer, supra note 103, at 223, 226.
112
See, e.g., id. at 226–27 (Harlan, J., concurring, however opining that the result of the case should
not have been premised on any Sixth Amendment speedy trial finding but rather on that the State of North
Carolina’s “unusual [] procedure” was inconsistent with Fourteenth Amendment requirements of
fundamental fairness (citing Pointer v. Texas, 380 U.S. 400, 408 (1965))).
113
Garcia, supra note 28, at 37.

39
this trial right.114 It is unfortunate, too, that—even though speedy trial precedent has “recognized

the ‘erosive effects’ of the passage of time on the ability of a defendant to defend [him or]

herself”115—there are times (even recently) when the Court has decided not to exercise their

jurisdiction to fully review some speedy trial cases in their entirety, further adding to the

confusing landscape of navigating these complex analysis problems.

A stark example of how even the nation’s highest court can be confused when faced with

what seems to be a clear question of speedy trial concern came in the form of its brief

consideration of the Louisiana case of Boyer v. Louisiana,116 wherein an appealing defendant

challenging his second-degree murder conviction attempted to raise the issue about whether an

over seven-year trial delay was an issue for the Court’s consideration. Though the record in the

case showed that natural disasters (like Hurricanes Katrina and Rita) likely contributed to some

of the delays (wherein government and court operations were either limited or ceased in their

aftermath), the slim 5-4 majority finding in Boyer hinged its denial of a speedy trial

consideration on the blanket assertion that the lack of funding for counsel issue (the reasoning

for the bulk of the delay on time) was not a constitutionally protected right and, as such,

certiorari should not have been granted in the first place.117 Illustrating the conflict within the

Court on the deciding against answering the speedy trial question under its own Barker

precedent, the minority dissent authored by Justice Sotomayor maintains that the majority’s

decision: (a) was off point and dismissive of the speedy trial question raised by the facts and

nature of the appeal from the lower court’s decision, (b) that certiorari was properly granted and

114
See also Hildebrand & Cordero, supra note 15, at 9 (quoting U.S. v. Fox, 3 Mont. 512, 517
(1880)).
115
Garcia, supra note 28, at 37 (quoting Smith v. Hooey, 393 U.S. 374 (1969)).
116
569 U.S. 238 (2013) (on appeal from State v. Boyer, 56 So. 3d 1119 (La. Ct. App. 2011)).
117
See, e.g., id.

40
should have been fully considered by the Court, and (c) that the significant time delays should

have been the “compel[ling]” trigger point from which the Court should have allowed for a more

complete Barker analysis of the second factor of reasons for the delay at issue on appeal, as

opposed to outright denial of consideration of any of the speedy trial question before it.118 While

this case is illustrative of how the Supreme Court did not avail itself of the opportunity to

provide guidance (and perhaps even relief) to a defendant seeking clarification on how his case

was handled, it goes to show the mere existence of an excessive delay does not always rise to the

level of an appellate court to grant and provide a review of the claims made, even when it seems

one should be completed just by virtue of a delay having occurred to whatever extent.

Returning to the issue specifically of time calculations, numerous post-Barker courts

have lent to interpreting the time factor question and the courts have since at least agreed on a

bare minimum standard for review, however with some caveats, in that the Supreme Court and

other courts have determined only cases involving a “presumptively prejudicial” time delay

(usually “approaching” or exceeding a period of one year and with clear start and end dates from

which to calculate) should be recognized as the minimum time bar from whence a speedy trial

examination of the three other Barker factors should be triggered based on certain specific start

and end calculations.119 Thus, as it was envisioned by the Barker Court in its analysis,120 it is

118
Id. at 244 (Sotomayor, J., dissenting) (opining that the lower court’s own decision found that the
seven years from arrest to trial met the Barker requirement of being a delay that was “presumptively
prejudicial” under Louisiana state precedent (quoting State v. Ellis, 651 So. 2d 949 (La. App. 3d Cir.,
Mar. 1, 1995)), and the fact that delays hinging mostly on the state’s actions directly contributed to the
delays and should have been a factor in persuading the majority Court to consider the matter in full); see
also Barker, 407 U.S. at 530.
119
Doggett v. U.S., 505 U.S. 647, 651–52 (1992) (generally determining that, under Barker, the
filing of the indictment activates the Sixth Amendment speedy trial calculation and finding that an eight-
and-a-half year delay between indictment and arrest were sufficient to warrant a dismissal of charges
against the defendant (quoting Barker, 407 U.S. at 530–31)); see also U.S. v. Batie, 433 F.3d 1287, 1290

41
only when a statute or law provides a clear time deadline for completion of a trial that courts can

easily move past this first Barker time factor toward a review of the other Barker review

elements without having to rely solely on court precedent to evaluate whether the minimum time

bar has been reached to precipitate further review of the claim. Though nearly all states and the

federal government have some sort of method for which to provide for speedy trial

protections,121 one stands out specifically as a standard-bearer for others and is worthy of

specific mention, though it too may not be without fault or criticism as the ideal tool for

determining time standards or otherwise.122

One of the longest standing examples of a law or statute which provides somewhat clear

timelines for criminal prosecutions comes in the form of the federal Speedy Trial Act of 1974

(and its later amendment passed in 1979).123 Although the Act has been criticized for being

(2006) (finding that a delay approaching one year (or, in this case, seventeen-and-a-half months) met the
“presumptively prejudicial” standard); see also Jackson v. Ray, 390 F.3d 1254, 1261 (10th Cir. 2004)
(finding the delay period starts with either the indictment or arrest, whichever comes first and, although
the court was left in doubt as to whether the delay impaired petitioner's defense, the court found no clearly
established Supreme Court precedent establishing prejudice from the delay or mandating a balancing test
that reached a result contrary to the lower state appellate court's decision); see also U.S. v. Nixon, 919
F.3d 1265, 1269 (10th Cir. 2019) (calculating that the delay period to be considered ends either at the
point of trial disposition or defendant’s filing of motion to dismiss claiming speedy trial grounds); see
also U.S. v. Hill, 197 F.3d 436, 443–44 (10th Cir. 1999) (finding that only if the delay is “presumptively
prejudicial” will a court need to consider the remaining Barker factors in its analysis).
120
Barker, 407 U.S. at 523 (finding that the Court had “no constitutional basis for holding that the
speedy trial right can be quantified into a specified number of days or months” and leaving that
determining task properly to the legislative and administrative bodies of government to codify and also
citing the American Bar Association’s recommendations of time standards as a potential guide (see
American Bar Association Project on Standards for Criminal Justice, Speedy Trial 14-16 (Approved Draft
1968)).
121
See Joseph, supra note 13, at 613–15 (showing that, at least by 1980, forty-seven of the fifty
states each have constitutional provisions almost completely replicating the Sixth Amendment speedy
trial clause and citing each, then showing that the traditionally preferred method for setting time limits, if
and when they exist, is through “extraconstitutional” means of statutes and rules and ten citing to the
forty-four states (again, as of 1980) which do so by either or both of those methods).
122
See, e.g., Hopwood, supra note 25, at 709.
123
See, e.g., Speedy Trial Act of 1974, supra note 34.

42
“effectively marginalized” by federal and district courts through a process of routinely accepted

and allegedly justified continuances,124 the stated purpose of the law enacted in the wake of

Barker was to establish well-defined time limits for completion of various stages of a criminal

prosecution and give federal courts (and the parties) a road map for timely disposition of cases to

ensure the right to a speedy trial.125 Mirroring this intent, many states (though not all) have

adopted similar laws either by statute or through procedural rules which provide a stated

timeframe by which parties and courts may manage time and guide when the courts may be

required to analyze whether a defendant’s speedy trial rights might be impacted in deciding

whether to approve case management delays or setting and completion of criminal trials.126 The

challenge, however, with varying applications of speedy trial laws is that there is sometimes little

uniformity in how the protections apply from one jurisdiction to another, even when those cases

eventually reach the Supreme Court for a possible final disposition.127 This is especially true for

instances in which any reasonably excessive and presumptively prejudicial timeframe triggers

the second factor of Barker analysis—the reason for the delay.

Factor 2: Reason (or, the What)

The second factor in the Barker test of reason for delay (which the Court determined was

“closely related to [the first factor of] length of delay”) provides that the government must

defend and provide reasonably justifiable explanations for why and how excessive delays should

124
See Hopwood, supra note 25, at 709–10 (alleging that repeated over-use of continuances based on
weak justification amount to an “end-run” around the Act’s intent and purpose and run contrary to
numerous Supreme Court admonishments to not “add[] judicial gloss” by failing to abide by the Act as it
is written (citing Bloate v. U.S., 559 U.S. 196, 213 (2010); Zedner v. U.S., 547 U.S. 489, 502 (2006)).
125
See ANTHONY PARTRIDGE, LEGISLATIVE HISTORY OF TITLE I OF THE SPEEDY TRIAL ACT OF
1974 (Fed. Jud. Ctr. Aug. 1980).
126
See, e.g., supra note 121.
127
See, e.g., Joseph, supra note 13.

43
not be considered a violation of defendant’s Sixth Amendment speedy trial rights.128

In illustration of the Court’s intent that the test be a balancing test, the Court explains that

different reasons should be assigned different weights according to their severity and provides

examples of how that weighting should be ascribed based on different types of circumstances.129

For instance, if the government were to make a deliberate attempt to delay for purposes of

harming any defense the defendant might try to raise, then the reason would be “weighted

heavily against the government” but when overcrowded dockets or mere negligence causes a

delay, the Court says the reasons should be “weighted less heavily against the government [...

but] nevertheless should be considered because the ultimate responsibility for such

circumstances must rest with the government rather than with the defendant.”130 If the Court’s

decision were to be visualized, it would be helpful to look at each factor on a balancing scale,

perhaps attributing a large weight to deliberate attempts at delay, a medium weight to delays

such as docket overcrowding or negligence, and no weight for “valid” reasons such as missing

witnesses because those reasons are often considered unavoidable and “justif[ied]” and out of the

state’s, courts’, or parties’ control.131

Though the facts at issue in Barker were not reason-related, a number of later court

decisions have attempted to clarify what types of actions should be attributed what degree of

weighting against the government in the Barker analysis process on a case-by-case, fact-based

basis.132 It remains, and case law has shown, that the reasons for delays can be plentiful, but as to

128
Barker, 407 U.S. at 531.
129
See, e.g., id. at 514.
130
Id.
131
Id.
132
See, e.g., Wyrick, 516 F.2d at 1390 (finding that there was an insufficient record for the reasons
for delay as alleged in the government’s defense to the defendant’s motion to dismiss and, as such, there

44
how heavily courts might treat each reason is entirely subjective and dependent on the statutory

scheme under which the decision-maker is bound.133 It is also clear that the power that the

prosecution yields in much of the pretrial process adds to the element of complexity and even

confusion in determining what weight should be given to certain reasons for delay, however

courts have found that, absent “a showing of intentional and purposeful discrimination,” good

faith in prosecution is to be presumed.134 Not all jurisdictions have a clearly articulated statute or

legal precedent by which to guide what types of reasons are justified, so an exploration of a

couple of laws or cases which deal with this issue should serve to illustrate some of the ways that

courts (and the government’s representatives, as the ones responsible for the pace of the

prosecution) validate reasons for delays to reaching trial under statute or through precedent.

Again, the Speedy Trial Act provides guidance to federal courts in evaluating the reasons

for delays and determining what is acceptable and should not weigh against the government. For

instance, the Act provides in both its original form and in later revisions a list of certain

“necessary delays” which may be considered reasons for justified delay and requires that

express, on-the-record findings must be made to support “ends of justice” continuances, with

was “no justifiable reason” for the delays and therefore the delays should “weigh heavily” against the
state); U.S. v. Carini, 562 F.2d 144, 150 (2d Cir. 1977) (finding that delays caused by protracted bad-faith
plea negotiations led by the prosecutors and institutional delays, when charges were “simple and
uncomplicated,” weighed significantly against the government (quoting Barker, 407 U.S. at 531)); U.S. v.
Gallardo, 773 F.2d 1496, 1505–06 (9th Cir. 1985) (finding that “ends of justice” continuances followed
proper procedure under the Speedy Trial Act’s timelines and that not all pretrial delays should weigh
unfavorably against the government because defendant had contributed to delays by stipulation).
133
See Barker, 407 U.S. at 521–23 (recognizing that “[d]elay is not an uncommon defense tactic”
and that the Court’s “approach must be less precise” since states are free to determine reasonable
timeframes by rule or legislation and to set rules for what reasons are acceptable reasons for delay); see
also U.S. v. Brock, 782 F.2d 1442 (7th Cir. 1986) (priority-setting is ill-suited to judicial review).
134
U.S. v. Parham, 16 F.3d 844, 846 (8th Cir. 1994); see also, Brock, 782 F.2d at 1444 (broad
discretion is allowed for delays to allow wider investigation); U.S. v. Martinez, 785 F.2d 663, 670 (1986)
(a court’s review of investigation delays is limited by its deference to prosecutorial discretion as a balance
of powers between the different branches of government).

45
stated reasons for the delays specified in those findings.135 States, too, have taken to legislation

through amendment to their state constitutions and jurisdictional bodies of law to contribute to

guidance on what reasons should be considered acceptable for delay, and in some instances have

provided examples for how the Barker test could be improved.

For instance, the Montana Constitution provides a similar recitation of the U.S.

Constitution’s Sixth Amendment speedy trial clause.136 The Montana Supreme Court has then

been able to use the Barker balancing test to apply to its own speedy trial analysis to great effect

in providing clarity not only to the reason factor of the test and demonstrating how statutes with

clear speedy trial provisions can guide better decision-making by the courts in their review of

specific facts and courts can then provide better precision of reasoning in future decisions.137

The case is illustrative in how amending application of Barker factors can be beneficial in that it

references the Montana Bruce decision as an exemplar case instrumental in clarifying the Barker

factor analysis by “incorporating objective, bright-line criteria into three of them, and ...

modifying the function and importance each factor plays in the overall balancing [test]” and thus

assisting the Court in reaching its final decision. (To this end, scholars also agree.138) Although

the Montana Ariegwe court found that 95% of the time delays were attributable and weighed

against the state because of reasons of delayed production of crime lab reports, the Court did not

135
Summary of H.R. 658, 93rd Cong. (1973-1974), https://www.congress.gov/bill/93rd-
congress/house-bill/658; see Speedy Trial Act, supra note 34, at § 3161(h)(8).
136
See Myles Braccio & Jessie Lundberg, Note: “The Mother of All Balancing Tests”: State v.
Ariegwe and Montana’s Revised Speedy Trial Analysis, 69 MONT. L. REV. 463, 472 n.82 (2008) (citing to
MONT. CONST. art. II, § 24 and illustrating that states often mirror the basis federal right in some form or
another).
137
See, e.g., City of Billings v. Bruce, 965 P.2d 866, 871 (Mont. 1998) (finding that Barker analysis
was producing “seemingly inconsistent results” nationwide); see also State v. Ariegwe, 167 P.3d 815, 827
(Mont. 2007).
138
See, e.g., Braccio & Lundburg, supra note 136.

46
find a speedy trial right violation because it otherwise decided the state-responsible delays did

not ultimately prejudice the defendant.139 Thus, it could also be argued that this case also shows

how much (or how little) the latter two factors of assertion or prejudice may or may not influence

the final outcome in the balancing act, regardless of how clear the basis is for the court’s

reasoning. To this end, this analysis turns to and examination of the third Barker factor of

assertion and its treatment in law.

Factor 3: Assertion (or, the How)

The third Barker analysis factor under this review is the assertion factor, which provides

that a defendant must openly declare the desire for a speedy trial as is his fundamental

constitutional right under the Sixth Amendment. The issue of whether defendant had properly

asserted his speedy trial right was the base question before the Court in Barker at its core

(despite its eventual elevation as the standard-bearer for its culmination of prior rulings toward

creation of the speedy trial test in use today utilizing this and the other factors).140 In its decision,

the Barker Court took great care to point out the fundamental nature of the speedy trial right

under the Sixth Amendment of the Constitution still requires that the prosecution take

affirmative steps to protect the right of the defendant to a speedy trial, but provided the caveat

that defendant’s “failure to assert the right [could also] make it difficult for [him] to prove he

was denied a speedy trial.”141 Finding also that prior decisions were incorrect in allowing any

139
See Ariegwe, 167 P.3d at 854 (finding that “Factor Two weighs in favor of the conclusion that
[defendant] was deprived of his right to a speedy trial, but that “the State’s highly persuasive showing of
no prejudice (Factor Four) outweighs ... the State’s culpability in causing the delay (Factor Two) ... [and
that] the little weight [] assigned to [Factor Three] is not enough to tip the scale in [defendant’s] favor”).
140
See e.g., Barker, 407 U.S. at 514.
141
Id. at 532; see also Hodges v. U.S., 408 F.2d 543, 551 (8th Cir. 1969) (setting the precedent for
the Barker Court’s decision: “The government and, for that matter, the trial court are not without
responsibility for the expeditious trial of criminal cases.”).

47
“demand-total waiver” (wherein a defendant may be considered to have universally waived the

right to assert his constitutional rights) and rejecting a rigid demand waiver rule as the proper test

for this factor,142 the Court determined that courts should also not interpret that a failure to

explicitly demand his rights (or, in essence, in his silence be presumed that defendant has

acquiesced to a universal waiver in full of the right) as an “intentional relinquishment or

abandonment of a known right or privilege.”143 Though the Court’s ruling in Barker would seem

to clarify that the speedy trial right should be presumed as a matter of fundamental law—and that

even a minimal effort by a defendant to assert the right would be enough to persuade that any

previous waiver had been retracted and the right re-invoked—courts (and even prosecutors and

defendants) have been known to conflate and add to confusion over the issue of how assertion

factors into the speedy trial analysis and whether a universal waiver is legitimate under the law

(at least according to Barker).

One example of a judicial decision which confuses the matter of presumptive assertion

(and whether assertion of a speedy trial right can waived) occurred in the 1976 published

memorandum decision in the case of U.S. v. Beberfeld,144 not long after the Barker Court’s

decision providing detailed guidance on assertion and demand-waiver matters. Beberfeld

involved a defendant who was arrested in a drug sting operation but was offered a cooperation

agreement which would allow her to delay her arraignment on the arrest charges in exchange for

a written statement of her involvement in the crimes, as well as a signed waiver of her Fifth

142
Kermit L. Dunahoo & Raymond W. Sullins, Speedy Justice, 22 DRAKE L. REV. 266, 268 (1973)
(citing to Godbold, supra note 69, at 294, as the original source for coining the term); see also Barker,
407 U.S. at 523–29 (discussing at length its decision, including the reasoning for the Court’s rejection of
the demand-waiver rule in application to speedy trial tests).
143
Barker, 407 U.S. at 514.
144
408 F. Supp. 1119 (1976).

48
Amendment rights against self-incrimination and to her Sixth Amendment rights to appointed

counsel and a speedy trial (the latter of which was presented to her in the form of a document

which also applied to her waiver of arraignment and speedy trial rights under the Second

Circuit’s Rules Regarding the Prompt Disposition of Criminal Cases codified under the law for

her charging jurisdiction, which calculated a trial deadline of six months from date of arrest or

other formal action, whichever was earliest).145 Eight months after the cooperation arrangement

commenced but essentially amounted to being unproductive for the government’s purposes,

defendant was formally charged and arraigned and later filed for a dismissal of her charges on

the grounds that her speedy trial rights were violated, asserting that the government’s actions

were in violation of her constitutional rights and local law, that the trial time deadlines under

local rules should not have been tolled (as her submission of a waiver was involuntary,

uninformed by lack of access to counsel, and essentially coerced), and that her decision to sign

those waivers was elicited as a result of the government’s bad-faith acts at the time of her

arrest.146

Ultimately, the Beberfeld court decided that because the defendant had procured services

of counsel during the time of her participation in the cooperation agreement, the government’s

actions, though negligent, were excusable the government had good reason to have relied on the

initial waiver (signed before defendant had proper legal advice) as assurance that the defendant’s

abandonment of any assertions of her rights were valid because of defendant’s “gamesmanship”

145
Id.; see also U.S.D.C., SDNY Rules Regarding the Prompt Disposition of Criminal Cases,
Rules 4 (setting the six-month rule from date of arrest) & 5(h) (classifying cooperation as an exceptional
circumstance, subjecting the time of cooperation to exclusion from the six-month rule)).
146
Beberfeld, 408 F. Supp. at 1119.

49
throughout the course of her cooperation term.147 It is notable, however, that nowhere in the

Beberfeld decision’s text does the deciding court reference the Barker tool as the mechanism by

which it balanced defendant’s assertions that her speedy trial rights should not have been

considered waived in any respect, but rather it relies loosely on the Speedy Trial Act and the

exception of the language of the local Rules for guidance, implying that waiver of the rights is

justified because one of the exceptions applied in the case and because “public interest” is served

in allowing the prosecution to pursue its charges against the defendant.148 Further, despite its

own acknowledgment that the local procedural rules (which it calls the “Plan”) “set[] forth a

comprehensive framework in which such a waiver, by itself, has no place,” irrespective of

allegations of defendant’s “gamesmanship” activities (and which are not explicitly included as

point of consideration in the framework provided by law).149

Though the case never was appealed (as it arguably could have been, on the demand-

waiver issue alone), the question remains whether the Beberfeld court properly followed the law

under Barker in its analysis of the issue and the case is demonstrative of how courts (and the

actions of either the government or a defendant) can often create a situation for a confusing

application of the assertion factor under Barker, even if its guiding principles were not consulted

by the court in deciding the issue (albeit under other similar law). This type of judicial balancing

act of fitting facts to principles of justice is never more delicate than when a court reaches the

fourth factor of determining, on balance with the preceding factors base on a totality of the facts

147
Id. at 1125–26.
148
Id.
149
Id. at 1126.

50
of a specific case, whether a defendant experienced any prejudice as result of a violation of the

speedy trial right, which the following section will now explore.

Factor 4: Prejudice (or, the Why)

Returning again to the proposed alternative framework of the Five W’s and the How as

first conceived prior to this section’s four-factor analysis, this following inspection of this

prejudice factor will attempt to show the human side of the effect of the creation (and

implementation) of the fourth Barker test factor of prejudice, since this factor begins to touch on

the potential for real harm to a defendant, in that it moves beyond the technical fact-based

calculations of time (the first “threshold” factor), the gathering of evidence of the reasons for the

delays (assuming the first factor has been met, sufficient to reach this second factor step), and the

evaluation of how, if at all, defendant made it clear and convincing that he wanted to invoke and

assert his speedy trial right (in the third factor assertion step). To simplify the analytical process,

the following examination will describe the Barker Court’s portrayal of the factor and how it

reasoned the prejudice analysis should be applied by other courts before concluding with a quick

discussion of the controversial effect of it (and the entire test) in real-world application, but only

after a first quick assessment of the harms to the defendant that the Court purports the test should

ultimately prevent in its efforts to uphold a defendant’s fundamental and constitutional speedy

trial rights.

To begin, in creating the fourth factor of its test of the speedy trial right, the Barker Court

identified (as discussed above, by culmination of preceding speedy trial opinions previously

delivered by the Court150) that the Sixth Amendment speedy trial right should serve to protect

150
See discussion infra above; see also, e.g., Barker, 407 U.S. at 514.

51
three specific interests of defendants: first, the right should function to prevent oppressive

pretrial incarceration for defendants who, though presumed to be innocent, might remain in

pretrial custody awaiting trial; second, the right to a speedy trial should work to minimize

anxiety and concern of the accused by bringing a case to a final resolution instead of forcing a

defendant to wait for an outcome to determine his ultimate fate; and, finally, the third “most

serious” interest to be protected, according to the Court, is the desire that defendant’s ability to

prepare for and deliver a defense against the accusations not be impaired.151 (Showing how

persuasive the Court’s claims have had on modern jurisprudence, it should be noted that decades

later, evidence exists that courts continue to rely heavily on the Barker Court’s version of the

fundamental basis and reasons for the speedy trial right as is seen in the Tenth Circuit Court of

Appeal’s near-verbatim recitation of the Barker case’s language in its 1995 ruling in U.S. v.

Gomez.)152

Returning to Barker, however, the Court (in explanation of how the prejudice factor

should operate in the context of its balancing test and while remembering that prejudice in this

context is defined as an injury or damage that might be caused to defendant in disregard to his or

her fundamental constitutional rights, specifically under the speedy trial clause of the Sixth

Amendment) goes on to also declare for legal posterity that (“unlike” other constitutional rights

afforded to the criminally accused) a defendant is not prejudiced “per se” when a violation of the

speedy trial right is found, but rather the specific and unique circumstances of each case should

determine whether enough prejudice has occurred (on balance with and weighed against the

other factors) sufficient to compel a court to offer or order a remedy to repair the invasion on this

151
Barker, 407 U.S. at 532.
152
Gomez, supra note 52 at 1515.

52
constitutional right (a topic to be discussed more in brief below).153 From this prefacing

inspection of the purported basis for why the speedy trial right exists, the Court then moved

toward the application of the proposed fourth factor and analyzed the facts of the case before it in

terms of whether the defendant in the case had been prejudiced by any violation of his Sixth

Amendment constitutional right to a speedy trial.

Following these initial observations and findings for the record, the Court employed the

balancing test it set out earlier on in its decision using the four factors and, in explaining its

application of each of the factors, set forth and ascribed certain weights respectively, and

ultimately made the decision that “prejudice was minimal” to defendant based on findings that

“counterbalancing factors ... outweigh[ed] ... deficiencies” in previous findings on earlier

factors.154 In summary, what the Barker Court ruling does—in addition to consolidating

previous rulings to create and articulate a preferred test for speedy trial rights challenges on

review by courts—is to demonstrate, in its own words, that testing the “vague concept” of the

procedural right to a speedy trial is “[t]he difficult[] of the task of balancing the[] factors” which,

in doing so, should function to protect against the possible harms to defendants personal interests

previously enumerated above.155 This difficulty in determining prejudice (the presumed “most

serious” factor for any court’s consideration according to the Barker Court) as courts have

employed the test in cases following it has brought with it the similar effect as the Barker

ruling—the conclusion that, though some violation of the speedy trial right may occur, if

defendant’s overall ability to defend his case once he finally gets his day in court is not

153
Barker, 407 U.S. at 521.
154
Id. at 534.
155
Id. at 521, 533.

53
significantly impacted, then no remedy will be offered in compensation for the violation of the

fundamental right absent some other egregious reasoning as extrapolated from an appellate court

on review of a lower court’s actions. This probably unintended result is the source of the most

significant criticism the Barker test has received from the scholarly community in the decades

since its issuance, and seems to also spark the most interest for some in their efforts to propose

amendments to the test or to abandon the fourth factor as a part of the speedy trial analysis

altogether.156

The most expressive enumeration of the numerous difficulties with the application of the

prejudice factor as a part of the Barker balancing test is contained within Brian P. Brooks’ article

entitled New Speedy Trial Standard for Barker v. Wingo: Reviving a Constitutional Remedy in

the Age of Statutes.157 In the author’s comment,158 Brooks cites to the rise in statutory remedies

and differences in how lower appellate courts have decided to apply Barker as evidence that the

Court did little in its consolidation of previous speedy trial analyses (into a bona fide test for

universal application in future speedy trial constitutional challenges) to provide any real clarity

on how to remedy how the procedural right can truly be protected as intended by the

Constitution’s framers and on par with all other fundamental criminal procedure rights

accompanying it within the framework of the Sixth Amendment.159 This latter proposition is

156
See, e.g., Brooks, supra note 87.
157
Id. at 592–95.
158
The author is also coincidentally most recently known to the public, beyond the academic sphere,
as the former Acting (and nominee for) Comptroller of the Currency under President Trump’s
administration in 2020–2021.
159
See, Brooks, supra note 87, at 590, 592–95 (citing to H. Richard Uviller, Barker v. Wingo;
Speedy Trial Gets a Fast Shuffle, 72 COLUM. L. REV. 1376, 1378–80 (1972), and describing how lower
courts have altered their approach to Barker’s “balance” test, opting instead to take a “straight” balancing
approach which gives equal weight to each of the four Barker factors, rather than parsing out the time
factor as a threshold or trigger factor and then weighing out reasons, assertion, and prejudice with lighter

54
supported by even more in-depth scholarly analysis of the issue of original intent, the content of

which argues that Barker-endorsed precedent in Beavers v. Haubert160 wrongly portrays the

speedy trial right as different than any other criminal procedure guarantee in the Constitution

(which protect defendants’ rights against actions of the government), rather than supposing (as

Beavers does) that there is any competition between a defendant’s rights and societal

interests).161 Following from this criticism, and the Court’s reliance on arguably faulty precedent,

and the collected passages of this preceding section having discussed in detail the noticeable

complexity of the practical application of the four Barker factors, a short discussion of the

various individuals whose interests are impacted by speedy trial decisions and other due process

concerns should help to broaden the picture of how it is not just a defendant and the courts and

lawyers’ interests affected by trial delays, but that there are segments of society whose own

fundamental rights are also not as often acknowledged by the courts in the general speedy trial

analysis discussion, though there has been some movement toward this end.

Competing Interests & Due Process Rights

Complicating the application of Barker in analyzing speedy trial claims is the criticism

that most cases where a defendant is granted relief only come about in situations where the facts

of the violation show that “society lacks a countervailing interest in continuing to hold [a

defendant] for trial.”162 As previously discussed above, it is the difficulty of balancing opposing

interests raised by Barker which leads this research into an identification and short analysis of

or heaver weighting depending on the court’s subjective interpretation of the perceived importance of
each respectively).
160
198 U.S. 77 (1905).
161
See Uviller, supra note 159, at 1378.
162
Barker, 407 U.S. at 519.

55
the many interests consumed within the general category of “society” to which Barker and so

many other courts consider to be in opposition.163

Courts and legislators have repeatedly recognized that any laws created for the purposes

of protecting speedy trial rights are designed with the competing interests of the government

(prosecutors who decide on the criminal charges and who drive the cases from indictment to

eventual trial-setting) and defendants (whose interests in defending themselves are not always

served if they were to aggressively assert that their charges are brought to trial expediently), but

within the mindset that the defendant’s right to speedy trial should be balanced against society’s

interests (however broadly or narrowly that might be subjectively determined). Generally

speaking, scholarly inspection into the issue of the diverging interests of all the differing parties

impacted by the criminal justice system is wide and voluminous, as are the number of mentions

of these interests throughout historical case law, but the focus has rarely looked into the makeup

of what constitutes the general “society” whose interests are so juxtaposed against a criminally

accused defendant in is personal assertion of a fundamental right to a speedy trial under the Sixth

Amendment.164 Therefore, to address this relative oversight in the jurisprudence on the subject,

this section of legal analysis will focus on the interests of those conspicuously not considered by

name in the Barker Court’s decision, but whose concerns arguably fall into that section of

“society” whom the Court generally referenced in passing when it proclaimed that “society has a

particular interest in bringing swift prosecutions, and society’s representatives are the ones that

163
Id.; see also, Sanjay Chhablani, Disentangling the Sixth Amendment, 11 U. PA. J. CONST. L. 487,
538 (2009) (citing to Coy v. Iowa, 487 U.S. 836, 845–46 (1990) (O’Connor, J., concurring) (showing,
though not directly related to the speedy trial right, the interests of a child victim witness should be
treated differently than a defendant or other parties as to the right to confrontation by the accused and the
manner by which that right might procedurally be asserted).
164
See, e.g., Brooks, supra note 103, at 588–89.

56
should protect that interest.”165 To this end, the discussion will now turn to a focus on the role of

the courts (whose responsibility it is to shepherd parties and the cases related to each through

from point of entry at initial appearance or arraignment to the time of disposition of a case,

whatever the outcome) and the victims of crimes reluctantly dragged into traversing the

proverbial mud bog of a slow-moving criminal justice court system.

The Role of Courts and Rights of Crime Victims

Legislators, in their role as representatives of the public interest, have attempted in their

passage of amendments to speedy trial laws (culminating in the Speedy Trial Act of 1979166) to

make their intent clear that the competing interests of courts, defendants and their attorneys, and

government prosecutors should not preclude the rights of society to expedient processing of

cases in the criminal justice system, as is evident in the comments of one senator during

committee meetings preceding the passage of the 1979 amendments to the Speedy Trial Act

when declaring that “speedy trial [rights] will never be a reality until Congress makes it clear that

it will no longer tolerate delay ... [even though] [t]he over-worked courts, prosecutor, and

defense attorneys depend on delay in order to cope with their heavy caseloads.”167 As the senator

notes, the judiciary’s role (as the check on the legislative and administrative branches of

government) has a duty to protect all of “society” with respect to speedy trial rights, which is not

without some notice by jurists and scholars attuned to the issue.

165
Barker, 407 U.S. at 527.
166
Speedy Trial Act, supra note 34.
167
See Robert L. Misner, Delay, Documentation and the Speedy Trial Act, 70 J. CRIM. L. &
CRIMINOLOGY 214, 219 (1979) (quoting Senator Sam Ervin’s testimony prior to the passage of the 1979
STA amendments (H.R. 4807 Before the Subcomm. on Crime of the House Comm. on the Judiciary, 93d
Cong., 2d Sess. 157 (1974))).

57
 Some courts, in their review of speedy trial rights, have taken upon themselves the mantle

of responsibility as can be noted by the Beberfeld court’s commentary, when it determined that

“[b]ecause the public interest is involved, the court must assume ultimate responsibility for

prompt disposition ... [and] ‘the interest of the public and the rights of defendants can best be

protected through a firm control of criminal prosecutions by the district courts.’”168 The actions

of courts, however—in repeatedly allowing the parties (i.e., prosecutors’ control of court calls

and a disorganized public-defender system169) to effectively control the speed (or sluggishness)

of case management decisions—seems to suggest an apathetic approval by judges, leading to the

development of a “culture of delay.”170 This delay culture also impacts and affects the alleged

victims of crimes in a highly-chronicled way, which necessitates at least a brief overview in this

discussion to follow.

Though the entirety of the Barker decision only contains one passing reference to the one

victim in that case (and its test creation was focused solely on the development of a standard of

review for claims of speedy trial right violations under the U.S. Constitution), there has been a

significant bipartisan movement in the last 40 years post-dated Barker which has resulted in the

rights and interests of crime victims to be adopted into law, either through constitutional

amendment or other statutory mechanisms, on the shared premise that “[w]hile defendants have

strong interests in fair trials, victims likewise have strong personal interests in being listened to

168
See Beberfeld, 408 F. Supp. at 1123 (citing U.S. v. Lasker, 481 F.2d 229, 234 (2nd Cir. 1973),
cert. denied, 415 U.S. 975 (1974), and quoting U.S. Dist. Ct., S.D.N.Y., Rules Regarding the Prompt
Disposition of Criminal Cases, R. 9(a)).
169
Id.
170
See, e.g., Albrecht, supra note 5, at 753 (performing a data-driven case-study of a large-scale
criminal justice system’s record of delays, and identifying that the “unregulated granting of continuances”
reflects the accepted culture courts in general).

58
and taken seriously.”171 To this end, crime victim advocates and legal scholars, such as Paul G.

Cassell and others like him associated with the Marsy’s Law For All movement,172 have worked

diligently to enshrine victims’ rights into law to give voice to the interests of these often ignored,

unintentional participants in the criminal justice system to some form of justice and efficiency in

the courts, in the hopes that the stresses and anxieties unique to them might be minimized.173 To

their success, a vast majority of states have enacted laws (either through statute or procedural

rule) to lend influence to courts to include victims in the calculus of determining the

constitutionality of speedy trial rights though enforcement of victims’ speedy trial rights has

been “wildly uneven.”174 This noticeably imbalanced approach to the treatment of these rights

gives rise to a concern for the protection of rights apart and separate from the speedy trial right,

regardless of whether it is the rights of the victim (to notice or to be heard) or to the defendant

(as the individual accused of committing the crime for which he may desire a speedy trial)

—specifically, the constitutional rights of both to an assurance of due process under the law.

Speedy Trial Rights as Due Process Concerns

The Barker Court’s conclusion notably found (after performing its four-factor balancing

test described in greater detail above) that the defendant had not been “deprived of his due

process right to a speedy trial”175—therefore, this analysis will now quickly delve into the due

171
STEPHANOS BIBAS, THE MACHINERY OF CRIMINAL JUSTICE 91 (2012).
172
See, e.g., Marsy’s Law For All, https://www.marsyslaw.us/about_marsys_law (last accessed Feb.
10, 2023).
173
See BIBAS, supra note 171; see also, e.g., Otano, supra note 56, at 111; Cassell, supra note 37, at
240–42 (discussing the crime victims’ “right to proceedings free from unreasonable delay” and outlining
the many cases and support for this right to be preserved into law in recognition of crime victims’ parallel
interests in speedy trials as a part of the “societal interest” recognized by the Barker Court (Barker, 407
U.S. at 519).
174
BIBAS, supra note 171, at 90.
175
Barker, 407 U.S. at 536.

59
process implications of speedy trial rights on defendants, with a touch of the discussion to

mention (again) the rights of crime victims as a party to the criminal justice system. Reminded

by the historically-accepted legal truth that the Sixth Amendment right to a speedy trial is oft

times integrally linked to the fundamental due process rights of individuals under the Fifth and/or

Fourteenth Amendments,176 Barker’s treatment of the speedy trial right as a “due process

right”177 therefore invites a similar corollary between the speedy trial rights of an accused

defendant and the rights of other criminal justice system participants, such as crime victims, and

the responsibility of the courts to guard each and all of these rights.

Criminal justice scholars write that “a well-functioning court system is expected to

provide due process through decisions and actions based on individual attention to each case

using consistent court-wide practices operating within predictable time frames.”178 It follows

then—in connection with the proposed discussed above regarding a crime victims’ right or desire

for due process notice and the opportunity to be heard throughout the criminal justice process—

that not only might a defendants’ speedy trial rights be beneficially impacted by a more

predictable and consistent system of adhered-to and enforced deadlines, but victims too might as

well. Although courts might sometimes treat crime victims’ rights disparately from defendants,

from jurisdiction to jurisdiction (depending on the level of interest a judge might take in

176
See, e.g., Klopfer, 386 U.S. at 222–23; see also Sarah M. Bernstein, Fourteenth Amendment—
Police Failure to Preserve Evidence and Erosion of the Due Process Right to a Fair Trial, 80 J. CRIM. L.
& CRIMINOLOGY 1256, 1267 n.93 (citing Hooey, 393 U.S. at 374, finding that the denial of the
constitutional speedy trial right cannot be justified by other due process considerations such as expense of
transporting an incarcerated defendant to the jurisdiction of prosecution).
177
Barker, 407 U.S. at 536.
178
See, e.g., Albrecht, supra note 5, at 757–58 (quoting Brian J. Ostrom, et al., Improving the Pace
of Criminal Case Processing in State Trial Courts, 29 CRIM. JUST. POL’Y REV. 736, 737 (2018)).

60
considering the victim as an integral party to the criminal justice system),179 the swell of support

and passage of constitutional and statutory protections specifically addressing the due process

(and speedy trial) rights of crime victims gives hope that future courts will be compelled (if not

forced, by appellate review and censure) to integrate the crime victim into any evaluative

analysis of claims of speedy trial and due process rights having been violated.180

Succeeding from the discussion of the related rights of defendants and crime victims on

balance with Barker’s proportional consideration of societal interests discussed above in this and

the previous section, this analysis will now turn to some of the other legal and doctrinal concerns

which have arisen in the times since the Barker Court’s attempt to distinguish speedy trial rights

in the body of constitutional law and to memorialize a test for use in answering any summons to

contest whether the government has infringed on any of those rights.

Rebalancing a Shifted Burden

To top off this analysis of the complications of the Barker test as the preferred

mechanism to evaluate speedy trial challenge—while still attempting to keep the lid on

Pandora’s box covering the deep well of analysis of the many constitutional concerns related to

the issue at hand—this section will skim the surface of a speedy trial issue which made repeated

appearances during the research for this project, specifically dealing with the potential for seeing

the application of the Barker test as a mechanism for burden-shifting in the relationship between

the prosecutor’s (or government’s) role as the charging and enforcement authority in the criminal

179
See, e.g., Otano, supra note 56, at 134 (citing U.S. v. Wilson, 350 F. Supp. 2d 910, 931 (D. Utah
2005)).
180
See, e.g., Cassell, supra note 37, at 248–52 (outlining suggestions that perhaps a federal
constitutional amendment to enshrine victims’ rights might also help clear up the inconsistencies in how,
if, and when victims’ rights should be considered on balance with the rights of the accused defendant
alleged to have caused harm to that victim).

61
justice system versus the accused’s role as the presumed-innocent-until-proven-guilty acting in

defense against those charges.

The Power of the Prosecutor

In the shadow of the Barker Court’s assertions that “the prosecution carries the burden of

proof” in criminal cases and that “the primary burden ... to assure that cases are brought to trial”

rests on the courts and the prosecutors, as representatives of the societal interest to do so

“swift[ly],” it is important to recognize when any legal decision ignores these fundamentally

recognized legal truths.181 A volume of scholarly literature researching this issue has exposed

that the criminal justice system is decentralized so much toward the favor of the government (or

prosecutor) in its powerful discretionary role that courts, defendants, and even trial juries have

little ability to exercise any oversight over the potential for government overreach.182 Substantial

case law exists which enumerates the many discretionary powers which only the prosecution

holds,183 which has led to recent scholarly inspection into the real-word effects of prosecutors

having control over court dockets and calendars, the results of which find it problematic that so

much power balanced towards and into the hands of the government leaves room for a

181
Barker, 407 U.S. at 521, 529.
182
See, e.g., Anna D. Vaynman & Mark R. Fondacaro, Open Issue: Prosecutorial Discretion,
Justice, and Compassion: Reestablishing Balance in our Legal System, 52 STETSON L. REV. 31, 31–32
(2022) (the body of literature on the issue of the balance of power giving “unfettered” power to
prosecutors in controlling the influx and management of cases throughout the criminal justice system).
183
See, e.g., Tracz, supra note 96, at 1 nn.4–9 (citing to a collection of case law enumerating the
broad discretion of powers held solely in the hands of the prosecutor, i.e.: (1) power over the initial
decision to investigate crimes (U.S. v. Martinez, 785 F. 2d 663, 670 (9th Cir. 1986)); (2) the power to
permit or decide what offer to make in a plea-bargain towards a non-trial resolution of the case (U.S. v.
Williams, 47 F.3d 658, 663 (4th Cir. 1995)); (3) and the powers to determine: (a) whether to bring charges
(U.S. v. Williams, 504 U.S. 36, 48 (1992)); Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990)); (b) what
charges to bring (U.S. v. Batchelder, 442 U.S. 114, 123–24 (1979); Hunter v. U.S., 73 F.3d 260, 262 (9th
Cir. 1996)); (c) where to bring charges (U.S. v. Melendez, 60 F.3d 41, 50 (2d Cir. 1995); U.S. v.
Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992)); and (d) when to bring charges (U.S. v. Lovasco, 431 U.S.
783, 795–96 (1977)).

62
tremendous potential for abuse of that authority and the possibility for too much leverage against

defendants in the plea-bargaining process.184 On balance with those concerns, scholars within the

legal community have proposed reforms designed to teach criminal prosecutors how to remain

mindful of their burden in effecting swift and deliberate justice and their powerful systemic role

in achieving those results.185 Systemic change from within, however, may not be the only way to

rebalance the scales of power.

Courts have repeatedly emphasized that the burden for explaining trial delays are always

on the prosecutor (such as the Barker Court memorialized in its explanation as to how the second

factor analysis as to reasons should be viewed)186 and on the bedrock principle that a defendant is

presumed innocent and the burden of the government to prove a defendant to be responsible for

the commission of a crime.187 However, because the priorities and activities of prosecutors (as

agents of an opposing branch of government from the judiciary) are “ill-suited” judicial review,

strongly supported proposals have been made from within the legal community to revise and

amend the precedent-setting Barker test to more fully account for the perception that courts are

ill-equipped for the task of rebalancing that power scales so deeply ingrained in the machinations

governed almost entirely by government actors representing law enforcement agencies overseen

184
See, e.g., Batchelor, supra note 62, at 171 (citing Andrew M. Siegel, When Prosecutors Control
Criminal Court Dockets: Dispatches on History and Policy from a Land Time Forgot, 32 AM. J. CRIM. L.
325, 331–32 (2005) and referencing the historical development of how criminal dockets have been
controlled and how the management of those dockets has evolved to the present day).
185
See, e.g., Wright, supra note 62, at 67–71 (recommending an alternative balancing power in the
form of outside, community review of prosecutorial activities and the requirement that decisions be data-
driven and reported for purposes of determining whether performance is matching up with stated policy
objectives for public safety).
186
This discussion of the balance of weight for reasons for delay resting on the government is more
fully explored above. See, e.g., Barker, supra note 128 (and related discussion infra); see also McNeely v.
Blanas, 336 F.3d 822 (9th Cir. 2003) (prosecution bears burden of explaining trial delay).
187
See, e.g., Coffin v. U.S., 156 U.S. 432, 453 (1895) (presumption of innocence is an “axiomatic
and elementary [principle] ... at the foundation of the administration of [] criminal law”).

63
by the administrative branch of government.188 A comparison of the outcomes of and reasoning

contained within two Supreme Court speedy trial decisions illuminates how the application of

the Barker test can sometimes inadvertently contribute to the problem of burden shifting, as it is

sometimes difficult to determine where the government’s power begins and ends, especially in

light of often underfunded and overburdened indigent defense systems whose funding is

dependent on government controls.

Comparing Doggett vs. Brillon

Barker decisively quantified that an unnecessary delay of trial should be considered

presumptively prejudicial to a defendant under the Sixth Amendment.189 Following that

precedent, the Supreme Court in Doggett v. U.S. determined that the government’s “excessive”

and “negligent” delays were “unreasonable” and absolutely in violation of the defendant’s

constitutional speedy trial rights, after an 8½ year delay between indictment and when the

government finally tracked down the defendant, who had left the country but had returned and

been living free without arrest for six of those years, and reversed the defendant’s plea

conviction.190 The Court’s ruling in Doggett resulted in a significant amount of critical response,

some of which poses questions over whether the Court went far enough to correct perceived

188
See, e.g. Tracz, supra note 96, at 22–26 (proposing that either the Barker test be abandoned
altogether, or that the assertion and prejudice factors be removed, as a mechanism to force the balance of
burden of proof back onto the government to prove that the reasons for its actions alone did not contribute
to a violation of a defendant’s speedy trial rights, as opposed to presuming that the defendant has any duty
to participate in the state’s effort to prosecute a case against him).
189
Barker, 407 U.S. at 530.
190
505 U.S. 647 (1992) (concluding that six years of an eight-and-a-half year delay before
defendant’s arrest on an old indictment due to the government’s failure to make efforts to locate
defendant and pursue its charges against him constituted a violation of his speedy trial rights as length of
the delay was “presumptively prejudicial” and weighed heavily against the state in consideration of
balance using Barker’s test factors).

64
deficiencies in how Barker factors are weighed by courts.191 While most have generally praised

the Court’s evolution toward realizing an achievable rebalancing of burden back to the side of an

acknowledged powerful government to demonstrate clearly when and why delays happen and be

held responsible for any for their part in infringing on the right to speedy trial, others have

criticized and claim that the Doggett Court may have missed an opportunity to correct

perceptions that, but for faulty reliance on precedent (i.e., the use of the Barker by courts

following the decision), speedy trial jurisprudence post-Barker has done more to harm than

protect speedy trial rights in failing to create a bright line correction and set the record straight on

how Barker should be applied when evaluating the prejudice factor of the test.192 Comparing this

case to the Court’s decision in a more recent case involving an analysis of a different factor of

the Barker test will show the vast complexity of how the speedy trial analysis can seem to be

straightforward and warranting a remedy for the government’s violation of the speedy trial right

in one case, but then deliver a controversial result in another by not accounting for the

government’s overarching power in nearly all facets of the criminal justice system, even

including the public-defender system.

191
See, e.g., generally, Michael P. Reagan, Constitutional Law – Government’s Excessive Negligent
Delay Presumptively Prejudices Defendant’s Trial in Violation of Speedy Trial Guarantee – Doggett v.
United States, 112 S. Ct. 2686 (1992), 27 SUFFOLK U. L. REV. 951 (1993); Robert W. Mueller, Negligent
Delay and the Sympathetic Defendant – Doggett Defines New Presumption of Prejudice – Doggett v.
United States, 14 MISS. C. L. REV. 609 (1994); Searight, supra note 74, at 61.
192
Compare Reagan, supra note 191, at 959–60 (“[I]n establishing a standard of presumptive
prejudice to the defendant ..., the Doggett Court properly took strides to correct the hams caused by
judicial misinterpretations of the speedy trial right ... [and] expand[ed] the Barker test to remove a
defendant’s burden of proving prejudice ...”) with Searight, supra note 74, at 71–73 (criticizing the
manner in which the Doggett majority’s opinion seems to cherry-pick from and misapply precedent in
reaching its decision (as similarly argued in the dissent’s response to that opinion) and thus creating “odd
law” (quoting Doggett, 505 U.S. at 659 (Thomas, J., dissenting))).

65
 While the Doggett Court’s decision found that the government had failed to meet its

burden and obligations to give notice to defendant of his charges (and, thus, seriously neglected

its duty to timely pursue its charges against the defendant in violation of his constitutional

speedy trial rights),193 the Supreme Court’s decision in the case of Vermont v. Brillon194 in

contrast deals with the inaction of a public defenders appointed to represent an indigent

defendant, whose own disruptive behaviors the Court ultimately attributed to defendant in their

final decision. The relevant part of the case under review before the Brillon Court was whether

the amount of time delay toward defendant’s case getting to trial was properly weighed against

the government “in ranking assigned [i.e., court-appointed and publicly-paid-for public defender]

counsel as state actors in the criminal justice system.”195 In succinctly dismissing the lower

court’s finding that public defenders are actors of the state, the Brillon Court essentially ignored

the entire body of persuasive law to the contrary on which the Vermont Supreme Court had

relied upon and referenced in support of its very detailed majority conclusions.196

Though the outcome of reversing the lower court’s decision does not appear on first

glance to be a significant blow to speedy trial rights general, what the Courts decision does to

however is, as one scholar put it, “make[] clear that indigent defendants must climb a large

barrier” and shift the burden to defendants to prove that delays caused by appointed counsel (as

an extension of defendant, as his “agent when acting, or failing to act, in furtherance of the

litigation”197) should not be weighed in the third or fourth Barker analysis against the defendant,

especially when the record contains proof that defendant himself had repeatedly attempted to

193
See Doggett, 505 U.S. at 647.
194
556 U.S. 81 (2009).
195
Id. at 81–82.
196
State v. Brillon, 955 A.2d 1108 (Vt. 2008), rev’d, 556 U.S. 81 (2009).
197
Brillon, 556 U.S. at 82 (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)).

66
openly assert the right to a speedy trial in front of prosecutors and in open court, which his

appointed counsel and the trial court chose to ignore and attribute as just another disruption by

the defendant.198 The comparison of the Court’s decisions above and the different views that

each Court shapes for future courts in distinguishing how a well-behaved defendant with the

ability to prove that time has made his speedy trial claims more persuasive can be treated

differently than an indigent and disruptive one whose court-appointed counsel acts contrary to

the defendant’s openly stated desires asserting his speedy trial rights is an interesting one.199

While applying the Barker test to the facts of each case, each case reveals how subjective and

illusive it can be in how different courts may mishandle attribution of certain facts when

assigning responsibility or burden on one party or the other, which scholars worry may stain the

reputation of the courts as they evaluate speedy trial rights and other constitutional issues.200

Ends of Justice Continuances & Exigent Circumstances

Though the courts have yet to have had significant opportunity to decide cases where a

violation of the speedy trial right was claimed to be related to the recent pandemic (and the

months and sometimes years of delays connected to cases which may have languished on court

dockets during that time),201 the fact remains that many courts were forced to close their doors or

198
See Jordan Glaser, The Silence of Gideon’s Trumpet: The Court’s Inattention to Systemic
Inequalities Causing Violations of Speedy Trial Rights in Vermont v. Brillon, 129 S. Ct. 1283 (2009), 89
NEB. L. REV. 396, 404 (2010) (citing to Brillon, 556 U.S. at 93–94).
199
Compare, e.g., Mueller, supra note 191, with Glaser, supra note 198 (regarding the different
behaviors and characteristics of the separate defendants in each case).
200
See Glaser, supra note 198, at 413 (taking the position that it is possible that the Brillon Court’s
ruling overturning the lower court’s decision amounted to “outcome-based judging ... implicitly
emanat[ing] from a judicial aversion to crime and criminals” rather than reversing “on the basis of an
error in constitutional law” and sound precedent).
201
See Hon. David A. Deakin & Hon. Janet L. Sanders, Legal Analysis: When Everything Slowed
Down: Evaluating the Right to Speedy Trial in a Pandemic, 65 B. B. J. 5 (2021) (co-written by two
Massachusetts state superior court justices, anticipating that “the prospect of continued delay ... [will

67
to grant liberal continuances for nearly all hearings and reset trials to an undetermined date as the

public health system mandated masking and social-distancing protocols, which made it nearly

impossible for the wheels of justice to turn freely toward a trial resolution for any defendant

wishing to have their case be brought to trial.202 To complete this last section of this study’s

analysis, the following will discuss briefly the concept of the ends-of-justice exception to

calculations of the speedy trial deadline built into many of the statutes and rules codifying and

setting timelines for speedy trials (such as the Speedy Trial Act) and then end with a short review

of the outcomes of the few reported cases which have begun to show up in the legal landscape

where defendants impacted by pandemic-related delays have sought to have their speedy trial

rights acknowledged and remedy granted on their contention that those rights were improperly

violated.

Although not too long and seemingly uncomplicated, an entire subsection of the Act (as

codified into the U.S. Code) is dedicated to a listing of the many instances where the parties, the

court, or circumstances may allow for a period of time to be excluded from the calculations of

time for criminal cases in the federal court within which a defendant must be indicted or trial

must commence in defendant’s case.203 It should be noted that these exceptions are subject to

certain restrictions: (a) it is required that for any period of delay resulting from a granted

continuance (either on the court’s on action on request or by stipulation of either or both

attorneys for either the defendant or the government), the court must make a record of any

make] requests to dismiss on speedy trial grounds ... more commonplace” and analyzing how “the
constitutional limitations on delay imposed by a public health emergency” should be approached in any
potential claims brought in a motion to dismiss on those grounds).
202
See, e.g., U.S. Courts, Courts Suspending Jury Trials as COVID-19 Cases Surge (Nov. 20, 2020),
https://www.uscourts.gov/news/2020/11/20/courts-suspending-jury-trials-covid-19-cases-surge (last
accessed Feb. 13, 2023).
203
Speedy Trial Act, supra note 34, at §§ 3161(h)(1)–(8).

68
findings that “the ends of justice served by taking such an action outweigh the best interest of the

public and the defendant in a speedy trial” (hereafter referred to as “ends-of-justice findings”);

(b) the court must make these ends-of-justice findings based on one or more factors as outlined

in that section of the Act; and (c) the court may not grant continuances based on factors

attributable to such reasons as “general congestion of the court’s calendar, or lack of diligent

preparation or failure to obtain available witnesses on the part of the attorney for the

Government.”204 As discussed previously in this and previous chapters, scholars have pointed to

numerous incidences where courts have frequently ignored the clear language of the these

sections of the Act (which those scholars find as evidence that the “judicial gloss” of subjective

court interpretation has vastly impacted the effect of the law) contrary to the legislative and

policy-making intents of the law’s original passage and later updates on amendment.205 How this

relates to the ways which a court may interpret these rules as to balancing defendant’s speedy

trial rights with public interests related to the pandemic has yet entirely to be determined, but at

least three federal court cases are found to be on point with some analysis hinging mostly (or at

least in part) on the pandemic-related treatment of the accused’s constitutional speedy trial rights

under the Speedy Trial Act, each with varying (or even seemingly confusing) outcomes, when

comparing the conclusion with the literal text of the Act’s language (as listed above). This

analysis will now turn to just one of those cases, and an illustration of how statute and precedent

continue to inform analysis of speedy trial claims with the added consideration of exigent

circumstances thrown into the evaluative mix.

204
Id. at § 3161(h)(7)(A)–(C).
205
See, e.g., Draper, supra note 16.

69
 One of the few reported cases identified in this research’s study dealing with a delay

related to the recent pandemic is the case of U.S. v. Briggs, which concluded (after the court

applied a Barker four-factor analysis to the facts of the case before it, as required by that

precedent) that any prejudice defendant was alleging to have suffered were outweighed by public

health interests brought about by the pandemic and, as such, defendant’s speedy trial rights were

not violated.206 The facts of this case involve the question of whether a five month delay to

defendant being indicted following his arraignment (while defendant was being held in custody

on charges of unlawful possession of a firearm by a felon)—delays attributable in large part to

pandemic restrictions, making it difficult for a grand jury to convene in person for purposes of

issuing an indictment—should be weighed against the state in a speedy trial analysis and

prejudice to the defense presumed based on the length of time defendant was being held in

custody pre-indictment.207 The court ultimately concluded by memorandum decision that the

government could bear no responsibility for not being able to indict defendant as the grand jury

was unable to convene for reasons outside the government’s control (i.e., “exigent

circumstances” and adherence to standing orders related to the pandemic and resulting mandated

lockdowns) —citing to the applicable pre-indictment exclusion to time provision in the Speedy

Trial Act (which allows for a 30-day continuance) and applying Barker as the standard for

balancing the weight of the facts of the case—and, as such, no violation of the defendant’s rights

could be found.208 This ends-of-justice finding (and those similar in outcome to it)209 appear to

206
471 F. Supp. 3d 634 (E.D. Pa. 2020).
207
Id. at 636–37 (citing to Speedy Trial Act, supra note 34).
208
Id. at 636, 639 (finding that “the ends of justices served by granting a continuance [extending the
indictment deadline for a fourth time] outweigh the best interest of the public and [defendant] because of
the continued impact of the [] pandemic on Court operations and the Government’s ability to present
evidence to a grand jury”).

70
correlate to the warnings of Justices Deakin and Sanders that requests to dismiss on speedy trial

grounds related to pandemic-era delays would likely start reaching appellate courts for review210

and that questions over what courts (and other criminal justice system actors) could have done to

better prepare or plan for the possibility of court shutdowns or limitations to access to services

(whether pandemic-related or because of some other exigent circumstances) as they have the

potential to arise again in the near future.211

Summary of Analysis

The fundamental basis of the four factors making up the Barker balancing test, when

dissected and then joined together into one analytical tool, serve the courts in their efforts to

balance the constitutional Sixth Amendment speedy trial rights of an accused defendant against

the pressures and power of the government. Time as the trigger point and instrumental

measurement of speed is just the beginning point in this analysis. The reasons for delays

attributable to the government (as the bearer of the burden of proof) can be counter-balanced by

the requirement under Barker and its precedent that a defendant show his own proof that he

actively desired that his speedy trial rights be acknowledged and observed to prevent the

possibility that his ability to defend against those criminal charges not be prejudiced. As

stewards of the public’s interest and the proverbial referees between prosecutors and defendants,

209
See, e.g., State v, Moody, 970 N.W.2d 770 (Neb. 2022) (finding district court’s order was
adequately specific that continuances were unavoidable due to restrictions required by the pandemic);
State v. Paige, 977 N.W.2d 829, 834 (Minn. 2022) (appellate court found that statewide pandemic orders
which caused a forty-five-day delay did not result in any unfair prejudice to the defendant and “did not
weigh against the state”).
210
See, e.g., Deakin & Sanders, supra note 201.
211
See articles cited supra at notes 5, 6, 15, 16, 21, and 85 and related discussion infra. When
collectively considered, these articles and publications provide a glimpse into how technology and data
analysis can be utilized to assist a better understanding of the makeup of the courts’ dockets and inform
decisions affecting time management for all involved in the process throughout the criminal justice
system.

71
judges often neglect to also consider the speedy trial rights of crime victims unless directed by

statute or rule, a consideration which also is generally lacking in speedy trial due process

jurisprudence including under Barker. Crime victims and the multitudes of individuals impacted

by the criminal justice system are not the only concerns raised by scholars attuned to the difficult

issues of reconciling the rights of the defendant against the interests of society. When the burden

of proof which the government presumptively bears shifts onto the side of the defendant, the

principles of fairness and balance in the judicial system come under attack and it up to judges to

sort out the facts and decide whether the constitutional rights of the individual have been harmed

and to determine what consequences, if any, the government should face when violates those

rights. Unfortunately, the criminal justice system’s complicated set of rules and inconsistent

enforcement of time deadlines has made it difficult for system actors to plan and prepare for

emergencies, to preserve access to justice, and to control trial delays even in normal times. It is

the sincere hope of this scholar to add value to the conversation about whether the analytical test

created by Barker is sufficient to deal with emerging challenges to speedy trial law. Gathering

the advice from a variety of scholarly sources studied above will inform and provide the basis for

the recommendations and conclusions to follow by providing a big picture analysis over a

collection of related issues relating to the preservation and protection of the Sixth Amendment

speedy trial rights of the criminally accused.

72
 CHAPTER 4: CONCLUSIONS

“The aim of argument, or of discussion, should not be victory, but progress.”

~ Joseph Joubert ~

The problem driving the research and analysis in this legal study centers around the

proposition that—despite the Supreme Court’s efforts in Barker v. Wingo to create a balancing

test by which to guide courts in its analysis of the constitutionality of government actions

contributing to trial delays under the speedy trial clause of the Sixth Amendment—the Court has

instead created a tool that undermines the original intent and purpose of the speedy trial right and

which does not stand up to scholarly inspection. The purpose of the study being to identify

whether an amendment to the Barker test or some other statutory remedy should be implemented

to cure deficiencies in the test, the study has resulted in a broad analytical view of a collection of

narrow issues and problems identified by the scholarly community, with varying implications

and recommendations which might assist in righting the ship and redirecting the processes and

procedures of the criminal justice system to improve the problem of criminal court backlog and

trial delays and, more importantly, to remedy the neglect of one of the fundamental

constitutionally protected rights afforded to anyone entering the system.

Implications

As this study has shown in the discussion above, the criminal justice system of time-

management is a complex and intricate web of individual interests pushing and pulling against

one another as courts attempt to manage a growing docket of criminal cases pushed through by

the law enforcement arm of the law. Though crime rates (i.e., whether they are rising or

declining) was not a focus or integral part of the analysis or research, there is evidence that there

is no signs that the backlog of criminal court dockets is going to quickly alleviate itself through

any of the existing mechanisms in place. The recent COVID-19 public health emergency which

73
shutdown courts and government agencies and limited the ability of defendants to see progress in

the management of their criminal cases has only added to the problem of backlog and delays, and

little has been done to try and get a handle on fixing the problem and clearing those log jams.

Legislators have attempted to curtail abuses of time and set deadlines for case procession, but

criminal court judges remain ever reliant on precedent to govern their analysis of constitutional

Sixth Amendment speedy trial claims with inconsistent results, and often to the detriment of

crime victims, if not also to defendants seeking to assert their constitutional rights in total. The

expansive differences between how federal and state courts often handle those core rights will

remain a subject for inspection and frustration lest anything substantially and fundamentally

change in either the philosophical approach to the treatment of speedy trial rights or some other

legislative devices arise to displace the broken tools in use today (i.e., the Barker test).

Under the theory of constitutional originalism, it would be right and proper that the courts

and legislators take a back-to-basics approach and consider the original intent and purpose of the

speedy trial right and reorient itself to a place where the discussion of fixing Barker (or

potentially abandoning it in favor of some other cure) might be visited. With a new 6-3 spread of

justices on the Supreme Court whose majority leans in favor of originalist thinking in their

judicial philosophies, it could be possible that the right case, with the right facts, and the right

amount of judicial history could bring the issue to the Court for reconsideration of

constitutionality of the Barker test sufficient to completely restructure this evaluation in this

study, but that case has not yet been identified (or at least did not rise to the attention of this

author in the course of this study). Understanding even more fully now that the complexity of

change in such a vast system may hinder the speed by which any recommendations may be

implemented, there is hope that the public confidence in the system of justice can be improved if

74
only each actor in the system would take an interest and collectively engage in the effort to

reanimate a lethargic criminal justice system and speed up the trial process and reposition the

constitutional rights of the presumptively innocent defendant at the foundation of the discussion

for reform.

Recommendations

Progress, as Joubert stated, should be goal of the discussion of how to go about fixing the

currently slow system of justice, but—as the Supreme Court has routinely stated and reiterated—

the “swift but deliberate” actions that will be needed cannot come from one source alone.212

As noted previously in great detail, the varied interests who must be served in the course of a

criminal case (in the millions of active cases pending before courts today) will require that a

holistic and practical approach be undertaken which will involve each and every stakeholder in

the criminal justice system, as follows:

(1) Legislators. Using the available data calculating the costs and average time of cases

from time of indictment to completion (and evaluated broadly by case type and

complexity), legislators should consider statutorily adopting or even amending the

suggested timelines to disposition as presented by the American Bar Association to

establish an evidence-based bright-line deadline by which cases should be reasonably

disposed (either by trial or some other non-trial disposition, such as by plea

agreement). The purse-strings of the legislature should also be considered as a tool by

which incentives to have cases reach a timely resolution for the sake of the taxpayers,

if not just in the interests of swift but deliberate public justice. Additionally, whether

212
See supra note 12.

75
 or not statutory protections for crime victims are already within the scope of the

current body of law in a particular jurisdiction, there should be a concerted effort to

update the legal scheme to include speedy trial rights of victims in state and perhaps

even the federal constitution.

(2) Case Management Officials. Whether controlled by administrative offices of the

courts or the supreme court benches of various states or the federal government,

officials in charge of decision-making and designing procedural processes should (if

they do not already) endeavor to create case management time tracking systems and

to implement the advice of disaster planning experts to broaden the access and

availability of virtual technologies to improve and streamline communications and

various other functions of the courts and the parties.

(3) The Judiciary. Courts and court staff should collaborate together to generate

discussions about best-practices for day-to-day management of court calendars and

work diligently to promote a culture of efficiency and communication between parties

and the courts whereby all parties seek to eliminate unnecessary court hearings which

only serve as calendaring hearings and waste resources of all parties and system

actors. Additionally, courts should seriously consider revisiting the basis for the

acceptance of Barker as a constitutional tool for speedy trial right assessments.

(4) Prosecutors. Government attorneys should heed the advice of scholarly professionals

who recommend additional training on the subject of fundamental rights and the duty

of the government to attempt to avoid at all costs the delay and potential violation of

the accused’s constitutional speedy trial rights. Additionally, charging decisions

should be more clearly made with the end goal in mind as to what can be most easily

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 proven at trial, rather than relying on the plea-negotiating table to be the place where

defendants can begin to understand the potential consequences for waiting for a trial

(and thus drive the incentive to have a quicker resolution to cases where defendant

may not really have a sufficient defense to avoid punishment).

(5) Defense Counsel. Regardless of whether a court-appointed, government funded

defense lawyer or one who retained by those accused who may have the means to pay

for one, defense counsel should actively engage early on with criminal defense clients

to discuss what their speedy trial (and other) rights are, and to fully vet the pros and

cons of waiting out the sometimes slow disclosure processes of the courts and to

evaluate how time wasted is not always in the best interests of the defendant (despite

the other potential perceived advantages that might exist). As laypersons, defendants

are often not as sophisticated in understanding the breadth and power that demanding

their speedy rights be respected might have in forcing the hands of overburdened

government prosecutors to more reasonably approach decisions on resolving cases,

and the advice of a seasoned defense lawyer could potentially shift the scales of

power if the right to a speedy trial were more frequently asserted.

(6) Scholarly Community. Though this research has shown that the scholarly community

is actively engaged in inspecting the impact of Barker as an evaluative tool, the

community has the opportunity to take a broad look at tracking how often and when a

speedy trial violation actually prevails and to provide, as a result of this additional

study, a report to legislators and policy makers at all levels in support of their

respective labors to do their parts in this rounded effort to improve the system of

provided swift but deliberate justice for all.

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 Conclusions

This review of the individual Sixth Amendment right to a speedy trial under the

Constitution and the treatment of it through the use of the Barker test has surveyed a collection

of separate line-item questions within the scope of the broader issue, but with the hopes that

seeing the forest from above will help the reader understand the nature of the different trees

within that forest. Knowing that time is the truly only finite resource that any individual has to

spend, an originalist approach may be the only way to refocus the conversation of how to protect

speedy trial rights back to the foundation of why those right should be protected, and then

making decisions on the how with the why as the basis. The scholarly research shows that there

is overwhelming support for an elimination of the assertion and prejudice factors of the Barker

test to remove the burden-shifting aspect of the test toward the interests of the accused (as the

presumptively innocent party) as well as to undertake efforts to further protect the interests of

crime victims to swift justice. The power of the government should not be allowed to abuse the

rights of individuals or ignore the interests of the public to reasonably speedy justice, and the

courts who are responsible to check and censure if any of the government’s actions overstep the

boundaries of violating individual rights need to take an active role in controlling the speed of

cases within its dockets. The hands of the clock will still turn and the criminal justice system will

likely never run out of individuals to serve and cases to oversee, but only time will tell what

long-term impact the recent pandemic will have on highlighting or even exacerbating the

preexisting problem of overloaded case dockets and shortages of enough lawyers with the time to

devote to growing caseloads for little pay. It will be up to the village to look out for the villagers,

and missed opportunities for fixing the system should not be the norm.

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 In summary, the aim of this research and basis for the recommendations provided here is

to draw attention to the wider scope of the issues of wasted time and the impact this has on the

fundamental and constitutionally protected rights of the criminally accused to not be harmed, for

the crime victim to received some sense of justice or vindication in recompense for their losses

or damages, and for the overall interests of society to regain some semblance of control over the

growing problem of a weakening of individual liberties over time attributable in large part to the

“judicial gloss” applied by courts and the lack of incentives for any party to the system to

improve the day-to-day business of criminal case management. If it is not victory that this

research and conclusions aim for, it is at least that there may be a desire for progress which will

call people—all people—to act as they may be able.

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