State v. Wilson

Moylan, J., delivered the opinion of the Court. What is the denial of the right to a speedy trial? As Professor Anthony G. Amsterdam, a recognized champion of defendants’ rights, has pointed out, * 1 it is not one thing but many things. What represents an inordinate delay within the contemplation of the Sixth Amendment, therefore, depends upon precisely what it is that the defendant seeks when he asserts a “speedy trial” claim.

It is one thing when he demands, “I have a right to a speedy trial; therefore, try me immediately.” It is yet another when he demands, “I have a right to a speedy trial; therefore, release me upon my ¹¹³ recognizance if you do not intend to give me an immediate trial.” It is yet something else again when he demands, “I had a right to a speedy trial; therefore, dismiss forever all charges against me.” In view of what is at stake, it makes all the difference in the world to discover that end which a defendant is seeking to attain. The request, “Try me today!,” is a far cry from that other request, “Try me never, because you did not try me yesterday!” As Professor Amsterdam points out: “. . . [T]here is not one speedy trial right, there are many speedy trial rights, and ... in asking whether or not the right to a speedy trial has been denied, the old law professor’s question ‘For what purpose?’ is all important. ... I think the test for when a trial is too long delayed for Sixth Amendment purposes is one thing where a defendant is asking for a trial. There it will be very brief indeed and he may have a right to a very quick trial.

It may be shorter, if what he is asking for is release from confinement pending trial. It will be somewhat longer, where what he is asking for is the right to have the charges dismissed without prejudice and it might be quite long, indeed, before he is entitled to dismissal of the charges with prejudice.” There is a gaping disparity between ordering an immediate trial, releasing upon bail or recognizance, and dismissing with ultimate prejudice society’s accusation of outlawry. The values invigorating the Sixth Amendment are vitally engaged when an accused seeks expeditious resolution of the charges against him; those values are sometimes shamelessly exploited when an accused waits to turn to the Sixth Amendment for the first time in order to avoid that resolution of the charges against him. In making a reflective and independent constitutional judgment, we will not be indifferent to the way in which and the purpose for which one seeks to use the law. ¹¹⁴ In dealing with the dismissal of an indictment because of a denial of the right to a speedy trial, appellate courts are not engaged in abstract, academic exercises.

They cannot ignore the stark reality of the heavy and foreclosing sanction employed. It is no mere exclusion of evidence, which permits society to try again to prove its accusation with other and untainted evidence. It is no mere reversal of a conviction, which permits society to try again to prevail at a trial free from error. It is the final judgment that society is forever powerless to proceed against a potentially dangerous outlaw in its midst.

It is the severity and finality of the sanction that must give us pause in applying it.. As the Supreme Court pointed out in Barker v. Wingo, 407 U. S. 514, 522 , 92 S. Ct. 2182 , 33 L.Ed.2d 101, 112 (1972): “The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy.” That philosophical imperative of Barker v. Wingo, which case is the star by which we steer, found expression by us in State v. Jones, 18 Md. App. 11, 14-15 , 305 A. 2d 177 , 179: “To dismiss, with prejudice, an indictment for armed robbery, because a defendant claims he was denied a speedy trial, is a severe sanction.

It is the final denial of organized society’s right to bring an accused transgressor before the bar of justice. In the face of vexing delays, lesser remedies may well commend themselves: the State may be put to the extraordinary burden of proceeding to trial on short or well-nigh immediate notice; a defendant’s request for pretrial release, on bail or recognizance, may take on additional merit. To say, however, that ¹¹⁵ the people, because they have not yet successfully retooled an overtaxed and obsolescent system to meet the demands of a computerized age, must forfeit forever the right to proceed against an accused felon, is an extreme and ultimate step to be taken only for the weightiest of reasons. The words of Justice Cardozo are pertinent, ‘Justice, though due to the accused, is due to the accuser also. . ..

We are to keep the balance true.’ [ 2 ] ” In State v. Dubose, 17 Md. App. 292, 300 , 301 A. 2d 32, 36 , former Chief Judge Orth (now Associate Judge of the Court of Appeals) incisively recognized the attitude of caution and forebearance with which courts must approach this problem, because the application of so extreme a sanction would “preclude the rights of public justice, because it meant that [the defendant], charged with a serious crime, went free without being tried.” We reaffirm what we said in McIntyre v. State, 17 Md. App. 526, 534 , 302 A. 2d 672 , 677: “The law does not lightly wield a sanction so ultimately destructive of society’s fundamental right to have transgressors stand before the bar of justice upon the merits of the cause.” It is, of course, the Federal Constitution which is here involved. The supreme expositor of that Constitution is the Supreme Court'of the United States. The recent, and the most probing, examination of both the letter and the undergirding spirit of the constitutional provision is found in Barker v. Wingo. 3 That case is the touchstone to which we shall return and return and return again in testing the facts ¹¹⁶ at hand against its informing standards. From that jurisprudential point of departure, we move to the consideration of the case at hand.

The appellee, Robert Michael Wilson, was arrested by Maryland State Police in Carroll County on May 26, 1971. The Sixth Amendment clock began ticking on that day. The appellee filed, in the Circuit Court of Carroll County, a motion to dismiss the pending indictments because of a denial of his right to a speedy trial on July 11, 1975. The hearing on that motion commenced on July 22, 1975.

The Sixth Amendment clock stopped ticking on that day. It had registered 1,518 days. Fifty months. Four years and two months.

That is a very long time. Standing alone, however, four years and two months tells us absolutely nothing. We need to know what happened in those four years and two months. After the hearing on the motion was concluded on July 23, 1975, and the submission of memoranda by both the appellee and the State, the hearing judge asked for reargument on October 16 in light of the then recently promulgated case of Epps v. State, 276 Md. 96 , 345 A. 2d 62 .

On October 30, 1975, the hearing judge ruled that the appellee had been denied his constitutional right to a speedy trial. The motion to dismiss the indictments was granted. The State has filed a timely appeal from that order of the court. We are guided by a case law so massive that, in terms of guidance, it has long since passed the point of diminishing returns.

That case law bearing directly upon the State of Maryland consists of 13 decisions of the Supreme Court of the United States, 29 decisions of the Court of Appeals of Maryland, and 98 reported decisions of the Court of Special Appeals of Maryland. 4 In the last analysis, however, the be-all and end-all of necessary wisdom is Barker v. Wingo. ¹¹⁷ At the very threshold of analysis, Barker v. Wingo demonstrates, by its example as well as by its language, that the initial shock wave of reading the bottom line on the time register may not, ipso facto, dispose of a question which involves the intricate interplay of that and many other variables. The Sixth Amendment clock in that case registered 1,907 days. Sixty-three months. Five years and three months.

That also is a very long time. Indeed, an even longer time than that now before us. Notwithstanding that very long time, the Supreme Court held that the Sixth Amendment right to a speedy trial had not been denied. The yardstick alone will not do.

The Four-Factor Balancing Test It is axiomatic, from all of the massive case law upon the subject, that the mere running of the calendar will not be viewed in isolation and has little significance divorced from the questions of reason for delay and prejudice, which are, respectively, its cause and its effect. The Supreme Court has explicitly rejected “the inflexible approach ... — the fixed-time period because it goes further than the ¹¹⁸ Constitution requires.” Barker v. Wingo, at 407 U. S. 529 . Barker v. Wingo, rather, mandates a balancing test: “The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed. A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis.

We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.” 407 U. S. at 530 . The Threshold Question of “Constitutional Dimension’’ The mere assertion of a Sixth Amendment claim on the part of a defendant will not, ipso facto, require courts, trial or appellate, to undertake this multi-faceted and involved analysis. There is “a triggering mechanism.” Barker v. Wingo, at 407 U. S. 530 .

This is that quantum of elapsed time between the institution of criminal proceedings and the ultimate trial (or the hearing on the speedy trial denial claim) which we have labeled as delay of “constitutional dimension.” This threshold question in considering speedy trial claims is that of whether there has been any true “delay” in the constitutional sense. If, upon preliminary examination, we may determine that there has been no “delay” of “constitutional dimension” — if the claim of “speedy trial” denial is clearly frivolous — if the passage of time is patently not inordinate — we are relieved of all necessity to make further analysis. If this threshold of “constitutional dimension” has not been crossed, there is no need for the delicate weighing of social values in order “to balance the right of the individual to obtain a speedy trial against the ¹¹⁹ right of society to punish those who are properly shown to have committed a crime against it.” 5 There is no need to look to the subtle interaction of the four factors: (1) length of delay, (2) reason for delay, (3) prejudice to the accused, and (4) assertion of the right by the accused. State v. Lawless, 13 Md. App. 220, 229-232 , 283 A. 2d 160 ; State v. Jones, 18 Md. App. 11, 22-23 , 305 A. 2d 177 . 6 As Barker v. Wingo articulated it, “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” 407 U. S. at 530 .

When we use the word “delay” in this sense, we are not reading into the word any value judgments. 7 All subjective considerations such as fault and prejudice will be deferred until we move on to the evaluation of the final three of the four interrelated factors. Here at the threshold, we are not dealing with the questions of what parts of the “delay” will be attributed to the State or to the defendant or to neutral circumstances. Such questions will have their day if and when analysis is triggered and when we come to the “reason” factor in the course of that analysis. ¹²⁰ Within the watertight compartment of the trigger mechanism, it is enough to record the cold and neutral arithmetic computation that between the institution of the criminal proceedings and the hearing on the Sixth Amendment claim, there elapsed a time period of four years, one month and twenty-six days. That delay is self-evidently of “constitutional dimension.” 8 It is so, many times over.

Further analysis is manifestly triggered. The Length of Delay “Delay” within the contemplation of Barker v. Wingo is a hybrid. It is both the mechanism which triggers analysis and then a factor in that analysis which it has triggered. It straddles the line between the decision to analyze and the analysis itself.

Although it means nothing standing alone, it is clear, however, that it is a factor in the final analysis upon the merits and not simply the triggering mechanism. All else being equal on the questions of reason for delay, demand-waiver and prejudice, a delay which has just barely crossed the threshold requiring analysis in the first place might well tip the scales toward a holding that the Sixth Amendment right to a speedy trial has not been denied, whereas, with the other three factors or values remaining constant, a delay measured in many years or even decades might well tip the scales in the opposite direction. Even in looking at the naked delay factor, divorced from its interplay with reason for delay or prejudice or ¹²¹ demand-waiver, the arithmetic computation is not viewed in a vacuum. As Barker v. Wingo pointed out, at 407 U. S. 530 -531: “[T]he length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.

To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” When it is viewed alone, there is not a great deal that can be said about the delay factor. The arithmetic yields a sum of four years, one month and twenty-six days. That arithmetic is written on a slate consisting of six indictments, five of them charging assault with intent to murder (five Maryland State troopers respectively) and one of them charging common law burglary. The analysis of this factor has now proceeded as far as it can ever go.

Although it will have an indubitable bearing upon the other factors, it, standing alone, tells us absolutely nothing about the correct resolution of the Sixth Amendment claim. We must, therefore, move on to other factors — to the distinct questions of why did it happen, who was responsible for the happening and what effect the happening may have had upon the defendant and/or his defense. Prejudice We choose, for better coherence in structuring this particular analysis, to consider next the factor of prejudice. 1. The Burden of Persuasion on the Question of Prejudice Within the limited context of this prejudice factor, there is a procedural issue which must be resolved before considering the substantive question of prejudice.

The issue, in a nutshell, is, “Who has the burden of proof?” Must a defendant affirmatively show prejudice? Must the State show nonprejudice? Does the burden at a certain point shift from the defendant to the State? Who prevails if neither side shows anything?

It is now clear that the evidentiary device ¹²² developed and utilized by this Court to resolve this issue must be modified in the light of Barker v. Wingo. Traditionally, three approaches had been used to arrive at a determination of prejudice. 9 One of those approaches was that it was always incumbent upon the accused to make a showing of actual prejudice 10 or at least a strong possibility of prejudice resulting to him or to his defense from the delay. Another of the traditional approaches was that prejudice would be conclusively presumed and necessarily followed from long delay. 11 The middle position was that a certain quantitative and qualitative delay would give rise to a rebuttable presumption of prejudice and would shift the burden of going forward with the evidence from the accused to the State. Before that critical point was reached, there rested upon the accused, as the moving party, the burden of persuading the hearing judge that the accused had suffered prejudice.

Once that critical point had been reached, however, the presumption of prejudice arose and the burden of going forward with the evidence shifted to the State. That critical point on the delay scale where the presumption arose and where the burden shifted had been denominated the point of “substantial” delay. As early as Stevenson v. State, 4 Md. App. 1 , 241 A. 2d 174 , with Judge Orth speaking for this Court, we opted for that middle position. That notion of “substantial” delay as a presumption-generating trigger mechanism had been taken from Williams v. United States, 250 F. 2d 19, 21-22 (D.C. Cir. 1957); United States v. Banks, 370 F. 2d 141, 144-145 (4th Cir. 1966); and Bond v. United States, 233 A. 2d 506, 512 (D.C. App. 1967).

We resorted to it frequently in early cases. Frazier v. State, 5 Md. App. 88, 92-93 , 245 A. 2d 614 ; King v. State, 6 Md. App. 413, 418 , 251 A. 2d 628 ; Wilson v. State, 8 Md. App. 299, 306 , 259 A. 2d 553 ; and Caesar v. State, 10 Md. ¹²³ App. 40, 43, 267 A. 2d 750 . We analyzed this second trigger mechanism — distinct from the earlier trigger mechanism of “constitutional dimension” — at great length in State v. Lawless, at 13 Md. App. 232 -237, and State v. Jones, at 18 Md. App. 27 -29. We capsulized it in McIntyre v. State, at 17 Md. App. 531 : “The initial question here is, ‘Who has the burden of proof?’ The rule is that if the delay is ‘substantial,’ a presumption of prejudice is generated, with an attendant burden upon the State to rebut the presumption.

On the other hand, if the delay is less than ‘substantial,’ the presumption is not triggered and the burden of showing prejudice falls upon the accused.” Our case law was inevitably complicated by the presence of two distinct trigger mechanisms. As utilized by us, the trigger mechanism of “constitutional dimension” — that which would precipitate the very analysis of the Sixth Amendment claim itself — was situated at a somewhat earlier point along the time continuum. 12 The second trigger mechanism of “substantial” delay — that which would precipitate the presumption of prejudice — was situated at a significantly later point along the time continuum. 13 Inevitably, there arose occasions when the two triggers got confused. The clear command of Barker v. Wingo has significantly simplified analysis in this regard. Under those constitutional guidelines, the presumption of prejudice arises at the very instant when review itself is necessitated.

What had, in our prior case law, been two separate procedural and evidentiary devices are now united in a ¹²⁴ single and simultaneous generating mechanism. The very necessity for the Sixth Amendment analysis and the presumption of prejudice within that analysis are triggered together: “The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” 407 U. S. at 530 . Whenever, therefore, the length of delay shall be deemed to be of “constitutional dimension,” (1) the four-factor balancing test under Barker v. Wingo will be required and (2) prejudice will be presumed.

The very notion of “substantial delay,” as a distinct mechanism, has served its day and will pass from our case law. The two are now one. At least, they are two-in-one. 2. The Utility of the Presumption of Prejudice Because prejudice is not a self-contained condition of any legal significance in and of itself but simply a participating factor in a far more involved calculus, it is in the interests of a defendant’s claim to make this factor as weighty as possible and not simply legally sufficient.

Many a defendant will, therefore, not rest upon the presumption but will, when he can, seek to establish prejudice by affirmative evidence. Having the benefit of the presumption, he is not required to do anything in this regard. He may, nonetheless, hazard the tactical judgment that in the mind of a particular constitutional fact finder, established prejudice may weigh more heavily than an abstract presumption. Thus, many a defendant will choose to demonstrate that he has suffered prolonged incarceration pending trial, that he has sustained fears and anxieties, that he has lost employment or that his defense upon the merits has been jeopardized.

Concomitantly, the presumption of prejudice is not conclusive but rebuttable. The State, for its part, may come forward and meet its burden of producing evidence and negate the presumed prejudice. It may show the absence of oppressive incarceration, the absence of injury to the ¹²⁵ defense upon the merits, etc. When both sides have litigated the prejudice issue thoroughly, the presumption, powerful enough in an evidentiary vacuum, loses much of its significance. Its utility is primarily to allocate the burden of proof upon the issue of prejudice and to serve as a tie-breaker.

Barker v. Wingo is strongly illustrative of this proposition. Its analysis was triggered by a delay of five years and three months, which the Supreme Court held was “presumptively prejudicial.” Notwithstanding the presumption with which the analysis began, the ultimate conclu ñon was “that prejudice was minimal” and that there was an “absence of serious prejudice”: “Two counterbalancing factors, however, outweigh these deficiencies. The first is that prejudice was minimal. Of course, Barker was prejudiced to some extent by living for over four years under a cloud of suspicion and anxiety.

Moreover, although he was released on bond for most of the period, he did spend 10 months in jail before trial. But there is no claim that any of Barker’s witnesses died or otherwise became unavailable owing to the delay. The trial transcript indicates only two very minor lapses of memory — one on the part of a prosecution witness — which were in no way significant to the outcome. More important than the absence of serious prejudice, is the fact that Barker did not want a speedy trial.” 407 U. S. at 534 .

(Emphasis supplied) 3. Prejudice, Presumptive or Proved, is But One of the Interrelated Factors It is a truism, but one that perhaps needs stating, that neither presumptive prejudice nor established prejudice is alone dispositive of the speedy trial denial claim. If it were otherwise, whenever analysis would be required, the defendant would always prevail upon the merits, for by the very terms of Barker v. Wingo, “there is no necessity for inquiry into the other factors that go into the balance” until ¹²⁶ “there is some delay which is presumptively prejudicial.” 407 U. S. at 530 . A hasty survey of the speedy trial field makes it apparent that there are many cases where the delay has been sufficient to be “presumptively prejudicial” and to require the four-factor analysis and where the product of that analysis has been the conclusion that the right to a speedy trial had not been denied.

Clearly, even the establishment of great prejudice is not dispositive of the larger issue. Even if a defendant were to lose his job, his family and his good name and reputation while awaiting trial; even if that particularly sensitive defendant were totally to lose his psychological and psychiatric balance during the course of the ordeal; and even if his solidly material defense witnesses were to die or disappear in the interim, there would patently be no denial of the right to a speedy trial if the length of delay between arrest and trial had been but a week or two, notwithstanding the overpowering prejudice. Indeed, analysis of the claim upon its merits would not even have been triggered. Nor would such an overwhelming demonstration of prejudice establish the denial of the constitutional right even in the case of a much longer delay, if the evidence established that the delay had been caused not by the State but by the defendant.

Prejudice, even massive prejudice, is but one of the interrelated factors. As Barker v. Wingo said in this regard: “We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” 407 U. S. at 533 . 4.

The Varieties of Prejudice As we proceed to our analysis of the prejudice factor in ¹²⁷ this case, we note that prejudice assumes several forms. There may be: A. PREJUDICE TO THE PERSON, BY WAY OF 1. OPPRESSIVE PRETRIAL INCARCERATION, AND/OR 2. ANXIETY AND CONCERN.

B. PREJUDICE TO THE DEFENSE. In this regard, Barker v. Wingo summed up the varieties of prejudice: “A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” 407 U. S. at 532 .

We note, moreover, as we approach the analysis in this case that we begin with prejudice being presumed. We need not rely totally upon that presumption, however, for a great deal of hard evidence upon the issue has found its way into the case from both the defense and the State. a. Prejudice to the Person by Way of Oppressive Pretrial Incarceration Barker v. Wingo described the impact of undue pretrial incarceration inflicted upon a defendant by virtue of undue delay in bringing him to trial: “[T]he disadvantages for the accused who cannot obtain his release are even more serious. The time spent in jail awaiting trial has a detrimental impact on the individual.

It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead ¹²⁸ ' time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense.

Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent.” 407 U. S. at 532-533 . Any presumed prejudice of this- variety absolutely evaporates upon examination of the record in this case. The appellee spent less than ten days in the custody of the State of Maryland.

He was arrested, after having been shot, at approximately midnight on May 26, 1971. In the early morning hours of May 27, he was transported by State Police helicopter to the Baltimore City Hospital. He was released from the Baltimore City Hospital and sent to the Maryland State Penitentiary on June 1, 1971. On June 6, 1971, he posted a $20,000 bail bond and was released.

His total period of incarceration, at the hands of Maryland, constituted less than ten days. After undergoing surgery on June 7, 1971, for the removal of a .38 caliber bullet, the appellee returned to his home in Boston, Massachusetts, on June 9, 1971. As will be discussed more fully in dealing with the reason for the delay in this case, the appellee was from August 5, 1971, through the day of the hearing in this case — July 22, 1975 — continuously in the custody of either the Commonwealth of Massachusetts or the United States of America or both. Except for the ten days immediately following his arrest — a time period patently not “oppressive” — the appellee suffered no incarceration at the hands of the State of Maryland. b.

Prejudice to the Person by Way of Anxiety and Concern Barker v. Wingo described the possible impact in terms of anxiety and concern which might be inflicted upon a defendant by virtue of undue delay in bringing him to trial: “[E]ven if an accused is not incarcerated prior to ¹²⁹ trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.” 407 U. S. at 533 . By way of amplifying that discussion, Barker v. Wingo, at 407 U. S. 532 , n. 33, cited Klopfer v. North Carolina, 386 U. S. 213, 221-222 , 87 S. Ct. 988 , 18 L.Ed.2d 1, 6-7 (1967), for the proposition that: “[A] defendant awaiting trial on bond might be subjected to public scorn, deprived of employment, and chilled in the exercise of his right to speak for, associate with, and participate in unpopular political causes.” Moore v. Arizona, 414 U. S. 25, 27 , 94 S. Ct. 188 , 38 L.Ed.2d 183, 186 (1973), discusses this same aspect of possible prejudice by quoting with approval from the concurring opinion of Justice White in Barker v. Wingo: “[Inordinate delay] . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” In aggregate, the cases are telling us that a defendant, subjected to undue pretrial delay, may suffer prejudice even when he is released on bond or personal recognizance. The classic instance was Klopfer where a Duke University zoology professor charged with the violation of a local ordinance when he demonstrated for civil rights, was kept under the cloud of pending charges, notwithstanding his demand to have them expeditiously resolved, for an indefinite period. He successfully maintained that the pendency of charges “greatly interfered with his professional activities and with his travel here and abroad.” , 386 U. S. at 218 .

We find no analogy between that sort of situation and the one at bar. While awaiting his trial in Maryland, the appellee here was convicted in Massachusetts and served a sentence for manslaughter. He was, furthermore, indicted ¹³⁰ and twice tried in Massachusetts (both trials resulting in hung juries) for the murder of Albert DeSalvo, the notorious “Boston Strangler.” He was, furthermore, tried for an offense in the Federal Court. He was, furthermore, awaiting trial in the Federal Court for yet another offense.

He was, furthermore, still awaiting his third trial in Massachusetts for the murder of DeSalvo. The appellee is a man with widespread criminal experience. Under the circumstances, it becomes clear that the pendency of the Maryland charges did not “disrupt his employment.” The pendency of the Maryland charges did not “drain his financial resources.” He was represented here by the Office of the Public Defender. The pendency of the Maryland charges did not restrain his liberty in any way, because he was under direct physical restraint at the hands of the Commonwealth of Massachusetts.

There was no remote suggestion that there was in this picture any family or friends in whom the pendency of the Maryland charges created anxiety. There was no remote suggestion that the appellee was in any way “chilled in the exercise of his right to speak for, associate with, and participate in unpopular political causes.” In terms of the more speculative and undifferentiated impact of “living under a cloud of anxiety,” the pendency of charges in Maryland was at most minimally cumulative and not central to the life of this appellee during this four-year period. With the charges of and trials for the murder of the “Boston Strangler” and the Massachusetts conviction and prison sentence for manslaughter occupying center stage, the biography of the appellee for the years 1971-1975 would ascribe to Maryland only a very peripheral role, with even that supporting role shared with, if not overshadowed by, the federal prosecutions at the hands of the Organized Crime Strike Force. The very notion of “anxiety” because of the unresolved Maryland charges is belied by the actions of the appellee.

On the one occasion when Maryland was able to obtain his brief appearance for arraignment, on July 14, 1972, the only ¹³¹ request voiced by the appellee was that he not be required to go to trial in the immediate future. As will be discussed more fully in considering the “demand-waiver” factor, the appellee thereafter steadfastly and adamantly fought every effort to bring him to trial in Maryland. He obtained a federal restraining order prohibiting his removal from Massachusetts. He, indeed, sued the State of Maryland, among others, for $100,000 in compensatory damages and an additional $100,000 in punitive damages because he was taken to Carroll County for the arraignment on July 14, 1972.

His actions were the very antithesis of those of a man anxious to resolve pending charges against him and distraught because Maryland would not cooperate in seeking that resolution upon the merits. 13 * c. Prejudice to the Defense Barker v. Wingo described as the most serious of the varieties of possible prejudice the impairment to the defense itself: “Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past.

Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.” 407 U. S. at 532 . The record in terms of the State’s theory of the case and the possible defense theory is almost as full as if the case had gone to trial. In addition to many detailed memoranda, ¹³² there was a lengthy pretrial hearing on the constitutionality of extrajudicial identifications, in the course of which there was full testimony as to the happenings on the night of the crime. In addition, the full transcript of the trial of codefendant James Nevens, at the conclusion of which the jury returned verdicts of guilty, was included as a part of this record.

The appellee was caught in jlagrante delicto as he was in the act of burglarizing the Carroll County home, located near Westminster, of Baltimore attorney H. Morton Rosen. The Maryland State Police had received advance warning, through a confidential informant, that the appellee would be flying in from Boston to meet with local accomplices and then to execute the burglary. Three or four days prior to the crime, the codefendant Nevens had flown to Boston. On the day of the crime, the appellee flew in from Boston, met with Nevens and together they went to the home of one Benjamin E. Masters.

A State Police discreet surveillance had picked the appellee up as he was driving from the Baltimore-Washington International Airport. Two girls, Joan Harriet Kessler and Mary Pauline Masters, testified for the State that they accompanied both the appellee and Nevens to Carroll County for the purpose of breaking into the Rosen home. The foursome traveled to Westminster in two separate automobiles, both of which had been leased in the name of one Doni Crone. One of the automobiles was used by Nevens and the appellee to go to the crime scene.

The other, occupied by the two girls, was kept as an available back-up vehicle on a restaurant parking lot somewhat less than a mile away. Before leaving Baltimore, the appellee and Nevens assembled various tools, including wrenches, crowbars, pliers, cutting torches, acetylene tanks, oxygen tanks and gauges (appropriate equipment for opening a safe). When the appellee and Nevens drove up to the rural Rosen home at approximately 9:30 p.m., Lt. Frank Mazzone and four other members of the State Police were secretly waiting inside the home.

They were stationed at different positions throughout the house. Several lights had been deliberately left burning. ¹³³ One was pointed from the inside at a pair of French doors, through which entry was ultimately made. Mazzone was crouched inside where he could observe this doorway. The positioning of the light served two purposes: (1) It shone fully on the face of the person entering and thereby helped to obscure the State policemen hiding behind the light source; and (2) In the event of a shoot-out, it made a good target of the burglar and a bad target of the policemen.

The automobile parked beside the Rosen home and the appellee got out. Several of the State troopers observed the figure of one of these two men try one door, move across the outside of several windows, and then move to the French doors previously mentioned. There were several loud knocks, which were unanswered. Lt.

Mazzone then heard a prying and scratching at the door for approximately one minute. There was then a loud bang and the door broke open. Lt. Mazzone made a positive identification of the appellee as the man coming through the door.

The light shone full upon his face for approximately twenty seconds. The appellee, who had entered with gun drawn, moved into a hallway beyond Mazzone’s view. Stationed down the hallway which the appellee entered was Corporal Peter Edge. As the appellee approached on a collision course, Edge shouted