This is Part 3 of a four-part article on Alabama's speedy trial right. The text is one article, divided into four separate posts due to its length.
The Right to a Speedy Trial in Alabama - Part 3
by William L. Pfeifer, Jr.
The Defendant's Assertion of the Right
The third factor to be weighed is a defendant's assertion of the right to a speedy trial. The Court in Barker v. Wingo held that a defendant does not waive the right to a speedy trial by failing to make a specific request for one. It is clearly established that a defendant has no duty to bring himself or herself to trial. Smith v. State, 409 So. 2d at 962. However, when a defendant does not affirmatively assert this right, the failure to do so is a factor that is weighed against him. Bailey v. State, 375 So. 2d 519 (Ala. Crim. App. 1979). As the U.S. Supreme Court stated in Barker v. Wingo, the "failure to assert the right will make it difficult for a defendant to prove he was denied a speedy trial."
When a defendant is not aware of the pendency of an indictment, the failure to assert the right is not weighted against him. Where there is no conclusive proof one way or the other regarding whether the defendant was aware of the charges against him, the factor will be weighed less heavily in the defendant’s favor than in a case where there is affirmative proof of his ignorance of the charges. Ex parte Walker, 928 So. 2d 259 (2005).
Asserting the right to a speedy trial as quickly and as often as possible is the clearest way for this factor to weigh in a defendant's favor. "Repeated requests for a speedy trial weigh heavily in favor of an accused." Kelley v. State, 568 So. 2d 405, 410 (Ala. Crim. App. 1990). In Roberson v. State, 864 So. 2d 379 (Ala. Crim. App. 2002), the Court of Criminal Appeals remarked favorably that the defendant demanded his right to a speedy trial on four different occasions (although the Court found no violation of the defendant's constitutional right to a speedy trial for other reasons). In Clancy v. State, 886 So.2d 166 (Ala. Crim. App. 2003), the defendant filed a motion to dismiss his indictment on speedy-trial grounds two weeks before his second trial. The Alabama Court of Criminal Appeals stated this factor weighed against the defendant and that "[t]he fact that the [defendant] did not assert his right to a speedy trial sooner 'tends to suggests that he either acquiesced in the delays or suffered only minimal prejudice prior to that date." And in Barker v. Wingo, the Court noted that the balancing test permits a court "to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client, or from a situation in which no counsel is appointed. It would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection." 407 U.S. at 529.
Editor's Note: This is part four of a four-part article on Alabama's speedy trial right. Please read all four parts of the article in order to understand this complex legal issue.
About the Author: William L. Pfeifer, Jr., is an attorney in Foley, Alabama. This article is an updated and condensed version of an article originally co-written by William L. Pfeifer, Jr., and G. Ray Kolb, Jr., for the March 2004 issue of The Alabama Lawyer , 65 Ala. Law 102. For more information about the author, visit his firm’s website here or go to http://www.prklawyers.com/Pfeifer.
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