What is the test for determining whether a defendant has been deprived of his right to a speedy trial?

Although I agree with the result in this case, I write to express my concern that the rationale upon which the majority's decision is based is in conflict with the rule, announced in Barker v. Wingo (1972) 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, that "the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right." (407 U.S. at p. 528, 92 S.Ct. at p. 2191, emphasis added.) Some of the other factors which "courts should assess in determining whether a particular defendant has been deprived of his right" (407 U.S. at p. 530, 92 S.Ct. at p. 2192, emphasis added) include the length of the delay, the reason for the delay, and prejudice to the defendant. (Ibid.) The factors specified in the Barker decision were not intended to be an exhaustive list. Rather, the court sanctioned what it termed an "approach" to an analysis of the problem, "a balancing test, in which the conduct of both the prosecution and the defendant are weighed." (407 U.S. at p. 530, 92 S.Ct. at p. 2191-2192, emphasis added and fn. omitted.)

The People recognized this fact when, in this case, they acknowledged in the trial court that the length of the delay between indictment and arrest was sufficient to require a Barker v. Wingo analysis. They argued that since the defendant had not demonstrated prejudice from the delay, the primary focus of the balancing process should be on "the conduct of the two parties."

[229 Cal.App.3d 317] In response to this argument, the trial court balanced the "very strong language in Barker v. Wingo regarding the responsibility of the People to bring the defendant to trial" with the fact that the defendant, by leaving the jurisdiction and living in a foreign country, obviously "was not anxious to assert his right to a speedy trial[.]" The court found that the reasons for the delay between indictment and arrest ¹ included the prosecution's "conscious decision" not to inform defendant that he had been indicted, and the fact that the district attorney's office chose not to allocate additional resources to its office of extradition services, despite its "vastly increasing work load."