*1 neys employed by injured employees Since the Industrial Commission can reeval- or uate finding light this of fact dependents their com- shall be fixed “permanent physical impairment” defini- mission.” on this Attorney fees incurred tion in this it is for opinion, unnecessary appeal us by Mr. awarded pursuant Curtis are reevaluating evaluate it at this time. In 72-804, to I.C. to be fixed the Industri- § finding, the Industrial Commission al Commission. would defeat purpose of I.C. 72-332 if § Mr. permanent disability Curtis’ total and it presumed that the fact that Mr. Curtis award is affirmed. The allocation of liabili- was employed precluded prior injuries or ty payment compensation for of Mr. Curtis’ diseases from or constituting hindrance Spe- benefits between the Idaho Industrial an obstacle obtaining employment. cial Indemnity County Fund and Shoshone 72-804, claimant, I.C. relied upon by § surety, Sheriff’s Office and its the State provides payment for of reasonable attor- Fund, Insurance is reversed and remanded ney fees any the commission or court proceedings “[i]f for further consistent with this ... determines that the employer or his opinion. respondents. Costs to surety contested a claim ... without rea- ” sonable ground.... portion This SHEPARD, JJ., McFADDEN and statute has been held to bar allowance of SCOGGIN, J., tern., concur. pro attorney part fees as of the costs if the BAKES, J., in the result. C. concurs employer’s contesting action the claim was with grounds. reasonable Wilson v. Associated, Inc.,
Garner supra. There are
no findings by the Industrial Commission
on the issue of whether appellants contest-
ed Mr. Curtis’ claim “without reasonable
grounds.” This matter is remanded to the Industrial Commission determination. It appears from the record of these Idaho, Plaintiff-Appellant, STATE of proceedings that there was no serious con tention on appeal that the claimant was not HOLTSLANDER, Lloyd Ernest 100% disabled. The claimant caught Defendant-Respondent. between the contentions of the Idaho Indus trial Special Indemnity Fund and the Sho No. 13264. shone County Sheriff’s Office and its sure of Idaho. Supreme Court ty, the State Insurance Fund. The claim ant was required to hire counsel to brief June prepare as, oral argument, as well Wallace, travel from Idaho Boise to ar
gue. Surely Special Industrial Indem
nity Fund and the could surety have made
an arrangement to compensate the claimant
without causing litigation him further
litigated the allocation issue between them
selves. “any I.C. 72-804 authorizes court §
before whom are any proceedings brought”
to award attorney fees and costs
“the or his employer surety.” this case
the employer County is the Sher Shoshone
iff’s surety Office and its the State Insur
ance further directs Fund. I.C. 72-804 § the fees of all such cases attor- “[i]n *2 Gen.,
David Leroy, H. E. Atty. Lynn Thomas, Carsman, Howard Deputy Attys. Gen., Boise, for plaintiff-appellant. Wiebe, Klaus Ada County Public Defend- er, Morden, Boise, Thomas R. for defend- ant-respondent.
DONALDSON, Justice.
This
appeal by
is an
the State of Idaho
from a
granting
district court’s
of defend-
alleged
Furthermore,
un-
scene of the
charge
ant’s Motion to Dismiss the
sale.
substance,
lawful
of a controlled
delivery
testified that he was continuous-
marijuana,
during
in violation of
37-2732.
ly present
County
I.C.
Ada
this entire
§
granted
period
The Motion to Dismiss was
on the
or
exception
with the
four
five
ground
days during
the defendant was denied his
the Christmas vacation. Dur-
*3
right
speedy
ing
constitutional
to a
trial. We
re-
period,
this twelve-month
defendant
citations, spending
reverse and remand.
ceived three traffic
a
jail
night in
for one of them.
An
alleges
undercover detective
that on
26, 1977,
April
19, 1978,
appeared
in-
that
the defendant was
On June
Holtslander
hearing
troduced to
“Lloyd” Harry’s
magistrate
preliminary
him as
Tav-
before a
for
Tavern,
ern in
Fol-
Harry’s
Boise. From
the
and was bound over to district court.
detective accompanied
lowing
granted
pro-
the defendant
to an
three continuances
apartment
pri-
where the defendant
Holtslander more time to obtain
allegedly
vide
counsel,
marijuana.
sold him
standard
was
for October
Following
vate
trial date
set
27,
undercover
until
procedure, the detective did not
1978. The trial was continued
1978,
8,
ask the defendant for his last name.
December
due to conflicts
the
be-
court’s schedule and lack of contact
20, 1977,
complaint
July
On
a criminal
No-
tween defendant and his counsel. On
was filed
DOE AKA
charging “JOHN
29, 1978, defendant
to dis-
vember
moved
LLOYD,
delivery
a white male adult” with
-
ground
right
miss on the
that his
to a
pursuant
of a controlled substance
to I.C.
nine-
by
trial had been violated
the
speedy
warrant
securing
37-2732. After
§
of
filing
month
between the
the com-
delay
arrest,
made sev-
defendant’s
the detective
motion was
plaint and his arrest. His
the
attempts
eral unsuccessful
to locate
de-
18, 1978,
granted
and
December
heard on
including
name
fendant or obtain his last
opinion of the district
a memorandum
by
roommate,
his
re-
attempting to contact
21,
State
December
court filed
apartment
to the
turning four or five times
only question
the
appeals and
of Idaho
occurred,
check-
alleged
sale
and
where
defendant-respondent
is whether
presented
companies.
ing
power
phone
with the
and
to a
right
of his constitutional
deprived
defendant
saw the
Although the detective
be-
the nine-month
by
trial
speedy
times, he
driving around town at various
his
filing
tween the
the war-
stop
unable to
him to execute
arrest.
rant.
1, 13,
Constitution,
provides
art.
Idaho’s
§
defendant, the
unable to locate the
Being
in part:
detective,
did
in-
whose normal duties
party
prosecutions,
“In
criminal
all
warrants,
warrant
serving
turned the
clude
speedy
right
accused shall have
sheriff’s
over to the warrant division of the
* * * ”1
trial;
public
1978,
nine
In April
approximately
office.
complaint,
months after
96 Idaho
Lindsay,
This Court in State
recognized and arrested
the detective
236,
(1975) stated:
474, 475,
237
defendant.
guaran-
trial as
right
speedy
“The
or statute
constitution
twelve months between
teed
a state
During the
identical
necessarily
and defendant’s
cannot be said to
alleged
date of the
sale
guaranteed
arrest,
speedy
trial
County
right
lived in Ada
but
to that
States.
testified
the United
moved four times. Defendant
the Constitution
1977,
however,
‘balancing
find,
he
July,
lived at We
April through
from
407
Boise,
Wingo,
1,
in Barker v.
Drive #
test’ laid down
White Cloud
right
speedy trial is
to a
to the United States
This Sixth Amendment
1. The Sixth Amendment
binding upon
applicable
states
provides:
to and
Constitution
Klopfer
through
Amendment.
the Fourteenth
prosecutions,
“In all criminal
the accused
988,
Carolina,
87 S.Ct.
v. North
386 U.S.
enjoy
speedy
public
to a
shall
”
(1967).
* * *
18 L.Ed.2d
trial,
balancing process
considered when the
has
U.S.
ordinary
considerably
street crime
less
of our
principle
It is an elemental
serious,
than for a
complex conspiracy
responsi
of federalism that ultimate
system
charge.” (footnote omitted).
of the federal con
bility
interpretation
for
It is apparent
length
delay
of
that
serves a
Supreme Court.
stitution rests with the U.S.
dual role in
analysis
right
the
of the
Thus,
delineating
holding
in Marion
First,
speedy
length
trial.
of delay
is
the Sixth
scope
protection
of
afforded
used as a
dispose
right
device to
sum-
to a
screening
guarantee
Amendment’s
marily
Second,
of
is
frivolous claims.
on this Court as it
binding
trial is
length of
of this
delay is one of the factors to
on all other
federal courts
be
state and
granting
It
that
trial court
should be
each of the Barker
the decision of the
noted
great weight.
primarily
inquiries,
factors involves
factual
so
dismissal
is entitled to
amount of
However,
information to
nation.
the U.S.
be considered.
not,
Court’s decision in Marion did
and in-
disadvantage
But it also has the
of shorten-
not,
deed could
determine the constitutional
and, therefore,
ing
length
delay
of
requirements
to a speedy
trial weakening
presumption
for
guaranteed
the Idaho
Constitution.
triggering
greater
mechanism.
greater
presump-
This Court has held that the Idaho
of prejudice
triggering
tion
the balanc-
protection
trial constitutional
is riot
ing test.
the trial court found the
Since
“necessarily
right guaran
identical to that
prejudi-
nine
presumptively
months
teed in the Constitution of the United
cial,
disadvantage
not arise in this
did
States” and
play
comes into
no later than
case.
the best
to avoid
Normally,
approach
filed,
the time at which
disadvantage
is to count defense-caused
herein
July
Lindsay,
1977. State
su
delays
period
in the
and then to
pra,
time to confer with his counsel. 531, Barker, 92 supra, 407 U.S. at S.Ct. In delay The exclusion of defense-caused 117, 2192, the Su- 33 L.Ed.2d at U. S. advantage making have the at balancing complex by reducing preme test less Court stated: Powers, 615, Powers, supra 100 Idaho Court’s attention 3. This v. Court State delay (1979), month stated that “the P.2d at was focused on a “six alleged guarantee sale of a trial does not extend to between the occurrence Powers, Powers, However, filing complaint....” period prior su- to arrest.” change delay pra, not between did not intend to and does was not concerned with a person complaint since becomes an “accused” of a and the arrest law as to when provi- day speedy trial constitutional the defendant in that case was arrested the for the Idaho Instead, after the was filed. sion. desirable actions of the most and take all assigned be weights should “[Different We hold defendant. locating possible at- reasons. A deliberate to different rigor- is too standard the “best efforts” order to ham- the trial in tempt delay is to make a Instead, duty the state’s weighted be heavi- ous. defense should per the de- bring effort neu- diligent, good-faith A more government. ly Arizona, 414 Moore to trial. See or over- fendant negligence such as tral reason (1973); 38 L.Ed.2d less U.S. weighted crowded courts should 374, 89 S.Ct. Hooey, 393 U.S. Smith be con- nevertheless should heavily but Richerson 21 L.Ed.2d responsibility since the ultimate sidered This P.2d 61 with the must rest for such circumstances take police to requires the standard than with the defend- government rather defendant. locate the actions to reasonable reason, such as a Finally, ant. a valid witness, justify should serve to missing standard, recog we applying omitted.) (Footnote delay.” appropriate burden the state’s ultimately it is nize that in Barker has Court U. S. the accused’s trial while provide between neutral rea- drawn a distinction trial is procuring for responsibility delay, sons for valid reasons and his right4 of his to his assertion limited hindering aimed at a de- delays deliberate orderly to obstruct responsibility bar, In the case at there fendant’s defense. time, we At the same justice. processes (and Holtslander we no contention stan good-faith diligent, with the recognize evidence) that the was caused find no limits on reasonable dard that there are deliberately caused to by dilatory tactics or considera These responsibilities. state’s Instead, Holtslander’s defense. hinder with the balanc fully assessed tions can be reason that nine-month was due to a both the test, conduct of in which the ing “more neutral” or “valid” accord- either weighed. are state and the The reason ing to the Barker standards. THE RIGHT OF police in this case was that ASSERTION *6 were unable to locate the accused because 531-32, at Barker, 407 U.S. supra, In they did not know his full name even 117-18, the 2192-93, at 33 L.Ed.2d at S.Ct. attempts to though they had made several Court stated: Supreme U. S. locate the defendant and obtain his name. asserts how a defendant “Whether and to the other closely related right
An issue raised in this case in deter
his
have mentioned.
mining whether or not this factor is to be
factors we
affected
will be
weighed against
strength
the state is what standards
of his efforts
to some extent
length
delay,
used to
efforts
police
should be
evaluate
partic-
and most
delay,
for the
to locate the defendant. The trial court
the reason
which is
prejudice,
persuaded
personal
since it
ularly by
stated that
was not
identifiable,
that he
readily
the police
always
used its “best efforts” in obtain
depri-
more serious
in deter
ing
experiences.
the defendant’s true name or
is to
a defendant
whereabouts,
vation,
likely
un
the more
mining
his
assertion
Therefore,
The defendant’s
complain.
reasonable.
this
factor
then, is entitled to
right,
in the
trial
weighed against
Implied
speedy
the state.
his
determining
weight
requirement
strong evidentiary
is the
trial court’s standard
deprived
being
defendant
perform
highest degree
to its
whether the
police
defendant’s asser-
agree
rule is that the
the better
4. We
with the U. S.
Court’s
Barker,
right
position
supra,
to a
assert his
stated in
407 U.S. at
tion of or failure to
speedy
to be con-
at
is one of the factors
S.Ct.
In the case at the defendant ous. There if is also defense became aware of charge against him by accurately witnesses are unable to recall virtue of his arrest in April, and did past. events of the distant Loss of mem- 29,1978, not file his motion until November however, ory, is not reflected in approximately always seven months later. At part forgot- least the record because what has been occurred while the (footnote defendant was ten can locating represent rarely counsel to be shown.” him. The trial omitted). court held that under these circumstances that the defendant did not bar, In the case at the nine-month wait an undue of time before assert no pretrial includes incarceration time. ing his right. recognize We that an accused Likewise, the second consideration is of lit- not represented by counsel not even be tle or no effect since the accused was not aware of trial or the even aware of the until the delay procedure and, for obtaining one in those Therefore, period expired at his arrest. our circumstances, the defendant’s failure to main concern becomes a determination as to demand a speedy trial should not weigh or not defense was im- appellant’s whether recognize him. We also that this is *7 hearing At the on the paired by delay. a difficult factor to and analyze should be Dismiss, testified Motion to Holtslander given weight according to the circumstanc of defense wit- any that he was not aware es of the case. For example, an aware away or moved and nesses that had died defendant, who desires delay his trial in of his defense was not presentation that his hopes of creating inability an of the state’s is no delay. affected There evidence witnesses to testify fading because of a the de- ability present that Holtslander’s memory or unavailability, may delay also impeded by delay. fense was obtaining hopes improving counsel in Holtslander’s chances The trial court stated that through to obtain relief a motion to testimony “helpful dismiss for denial of Defend but not determina- speedy trial.5 ant’s in delay obtaining counsel in such a tive.” Then the trial court cited Olson State, 873, (1969) case should be him. weighed against 92 Idaho and Although procedural seriously by delays spite we are aware of safe be weakened in guards attempts, safeguards. to minimize such we also rec such The record before us does ognize Supreme example as the U. S. Court did in Bark indicate whether or not this is er, 521, 2187, supra applicable at 92 S.Ct. at in the case at bar. L.Ed.2d at 111, prosecution’s may that sometimes the case of a rea- showing a 555, to make attempt 428 P.2d even Richerson v. this then prejudice, (1967) prejudice possibility for the proposition sonable light weight, very given a could be if the defendant can be presumed factor should in defendant. delay prosecution. show an unreasonable if for the any, ef- application Based on its of the “best standard, an
forts”
the trial court held that
BALANCING
occurred between
unreasonable
had
the U. S.
with
agree
We
Holtslan-
of the
and
533, 92
at
407 U.S.
Barker, supra,
Court
Therefore,
pre-
der’s
prejudice
arrest.
118-19, that:
at
33 L.Ed.2d
at
sumed.
factors
four
none of the
regard
“We
While we
of mem
agree that
reason
delay,
“[l]oss
[length
above
identified
ory
always
...
is not
reflected in the record
of his
assertion
defendant’s
rarely
because
can
forgotten
what has been
as
to the
right,
prejudice
defendant]
shown,” Barker,
supra at
condition
or sufficient
necessary
either
also
at
we
S.Ct. at
33 L.Ed.2d
of the
deprivation
finding'of
presumption
caution
the use of a
Rather,
are
they
trial.
right
in cases
bar
such as the one at
be considered
must
factors and
related
where there is no indication of
as
circumstances
with such other
together
claim of prejudice by
nor
the defendant.
sum, these factors
In
be relevant.
not,
in this case does
of itself and
must
courts
qualities;
have no talismanic
cases,
comparison
with other
to be
appear
and sensitive
difficult
engage
still
inordinate, particularly in view of the rea
But,
we are
because
balancing process.
case,
delay.
any
son
the instant
with a fundamental
dealing
possible prejudice by
the nine-month
out
accused,
must be carried
process
this
speculative
speculativeness'
at best. This
accused’s
recognition that the
with full
warrants the limiting
weight,
any,
if
specifically
trial is
interest in a
given to
presumption.
The balancing
(footnote
affirmed in the Constitution.”
enough
test allows
flexibility
considering
omitted).
the various
presuming prej
factors without
in-
each of the factors considered
Since
udice from circumstances like those of this
ap-
inquiry,
a factual
it
primarily
volves
case. A
defendant’s constitutional
case that we reverse
propriate
a speedy
trial cannot be established
any
reassess the
remand to the trial court to
inflexible rule but can be determined only
the standards as
Motion to Dismiss under
basis,
balancing
on an ad hoc
in which the
expressed.
herein
conduct of
prosecution
and that of the
Reversed and remanded.
Barker,
defendant are weighed.
supra at
As
cases
previously
one of
*9
rule
merely stated the
any analysis,
relied
for the
without
upon
and unnec-
overly broad
criminal
essary statement
v. as “a
when a
party
was State
accused
Lindsay
BISTLINE, Justice,
complaint
dissenting.
is filed against him.”1 Id. 91
However,
Idaho at
P.2d
us,
acknowledged
as
The issue before
serving
Jacobson was
time in the Idaho
is whether
the trial
opinion,
the Court’s
Penitentiary
State
when a criminal com-
motion to dismiss1
granting of the
court’s
plaint
point
was filed
him.
discretion to
County law
an abuse of
Court,
it
to
so
seems
reversible error.
placed
enforcement officials
a “hold” with
finding fault
me,
length in
goes
great
to
penitentiary officials which would have re-
of the
application
court’s
with the district
quired that Jacobson be delivered to the
(1)
instances:
only
two
Barker factors
county officials upon the termination of his
police
that the
with that court’s statement
Jacobson,
incarceration in the penitentiary.
“best efforts”
locate
did not use their
while still
in the penitentiary, made his
defendant,
(2)
analysis
with that court’s
demand for a speedy trial on
charges
I find no error
of the
factor.
which
subject
are the
complaint.
either.
Hence, I see the factual situation in Jacob-
with-
opinion
who
the Court’s
One
reads
son
distinguishable
as
from the circum-
trial court’s memorandum
out access to the
stances of the instant case. The court in
court
opinion might conclude that the trial
stated,
Jacobson
“The trial court was cor-
Wingo
of Barker v.
totally
unaware
issue,
rect
in its analysis of this
meaning
application
and the
its four
time should be determined from the filing
balancing
An
factors.
examination
original
complaint when the accused
trial court’s
shows not
that the
opinion
is incarcerated within the jurisdiction of
factors,
trial court
understood these
fully
this state and his whereabouts are known to but also that
it did not act
improperly
the prosecuting authorities. When the
granting the motion to dismiss.
unknown,
whereabouts
the accused are
with the
The trial court first dealt
the time should be considered at least from of the
under the circum
delay, finding that
the time the prosecuting authorities obtain
stances of
nine month
this case the
knowledge
whereabouts,
of the accused’s
and the
between the
when
jurisdiction
he is within the
of this
trigger
judicial
arrest was sufficient “to
state, whether
incarcerated or not.”
Id.
inquiry
scrutiny
of the defendant’s
added.)
(Emphasis
primarily
trial.” This
court, and one
question
factual
for the trial
sum,
it is my opinion that
overly
ought
court
appellate
with which an
broad rule of
Winter,
Jacobson v.
g.,
McCarthy,
interfere.
e.
Paine v.
See
and its progeny should be restricted to cir-
(9th
1975), cert. denied 424
F.2d 173
Cir.
cumstances similar to Jacobson.
In circum-
47 L.Ed.2d
96 S.Ct.
stances such as the instant case where the
(1976) (ten
delay); United States
month
arrested,
defendant had not been
was not in
1974) (nine
(1st
Fay,
1. The
court
cited
self is
committed
the trial
court
two
Court,
properly
except
decisions of the California
nei-
should
defer
which this Court
ther
misap
of which furnish a basis for such a broad
trial court is shown to have
where the
plied
rule.
Dalrymple,
the law. See State v.
99 Ida
(1979) (no abuse of discre
ho
As to the reason for something the the trial matter of curious mind. my in court made well findings: reasoned why, I wondered if they knew an individ- long
“The frequented reason ual a certain location for the was disclosed the by enough they that would testimony get of to know him Officer Cortez at the hearing that, some on the and narcotics buy motion to from him dismiss. The officer simply they did not the weren’t able to same go know accused’s back to that full name and just was to locate and find him I again. unable him location personally quite until in April, 1978. The de- couldn’t believe that Mr. Holtslan- fendant himself did to nothing occasion der he made stopped going after this sale that delay. neighborhood to the same was bar that he to going
used to when he was not aware was anyone going to arrest him. “... Iam not persuaded that the offi- cers used their in obtaining best efforts defendant, the true name of the nor de- give “I did this a considerable amount termining whereabouts, light his of his Dutcher, certainly31 Mr. I thought, of
testimony gener- that he in the remained trying am not to throw road blocks the al area. I find that the was unrea- police in this to way trying area in sonable and not justified.” activities, curtail the narcotics but I think prosecutor, The in arguing go a motion to re- particular they just in this case didn’t consider, stated: in a to proper enough about it fashion also accord the defendant some sort a Honor,
“Your I some of the thought of defense in to being semblance able things pointed court in the out case, his to prepare going own so I’m opinion, memorandum I think bottom (Empha motion to deny the reconsider.” line was that police it felt that did added.) sis not make reasonable to locate and efforts (Emphasis arrest Mr. add- Holtslander.” statement “[ijmplied Court’s ed.) standard is requirement the trial court’s motion, denying the court perform degree state’s that the to its police highest the following: noted and take all most desirable actions possible locating the defendant” is not “I realize that situation factual substantiated, as pros the statement by stay here where the officer wanted shows. To the read in contrary, Holtslander ecutor well and not let Mr. undercover context, imposed the trial court a re looking for him they really know were quirement diligence, requirement due advantage they to their because police on narcotic sur- did not simply could continue with their it found the meet. It becoming said that veillance arrest without cannot be trial court gambles It is on just highest degree diligence known. one of those imposing case and they particular police took in this police. did have an address it resulted in to Mr. Holtslan- (an appeared which Holtslan address on license), der. they did der’s driver’s talk roommate, fre they did know the bar he thing “One I in the didn’t mention Dutcher, quented, they get but were unable to last Mr. that was a opinion, locate him. As noted the trial was Officer name and curious situation. I believe it court, attempt he made no (sic Cortez) knew Holtslander Carr testified that — “Lloyd” whereabouts. An examination Mr. Holtslander the name conceal his jurisdictions well. was because other that have quite Perhaps this cases from they unjustified, g., had seen him a number times at held to be e. Jones Court, same finally Superior Cal.Rptr. bar where made the 3 Cal.3d they (1970); from buy get Ivory, him and then decided State v. arrest, P.2d 1039 Will warrant for his this was never State v. Or. and. evidence, just Or.App. ingham, answered it P.2d
317
(1973),
justified,
g., People
holding,
and
e.
v. Han
In so
the court cited three cases
non,
588,
885,
19
Cal.Rptr.
proposition
prejudice may
Cal.3d
138
564
for the
that
be
McDaniels,
(1977);
P.2d
where there is an unreasonable
People
presumed
1203
v.
53
State,
873,
452
delay.
Misc.2d
279
574
Olson v.
(County
N.Y.S.2d
Ct.
State,
Ida
1967);
Sheriff,
(1969);
P.2d 764
Richerson v.
91
Petschauer v.
89 Nev.
Superi
ho
Justice Brennan
similar senti-
Frankel of
Florida,
ments Dickey
the District
for the
Dis-
Court
Southern
1564, 26
(1970):
L.Ed.2d 26
‘preju-
trict New York has stated
may fairly
presumed simply
dice
be-
“Although
seems to be an
everyone
cause
knows that memories
speedy-trial
essential element of
viola
*12
fade,
lost,
tions,
is
burden of
evidence
and the
prejudice—
it does not follow that
absence,
anxiety upon any
or its
if the
criminal defendant
in-
proof
burden of
is on
government
passing
be
creases with the
months and
satisfactorily
—can
Mann,
shown in most cases.
as the
Certainly,
291
years.’ United States v.
indicates,
present case
it can be
estab
F.Supp.
(1968).
271
speedy trial ‘is an important safeguard
cutions. We
tal unfairness is
L.Ed.2d
* * *
disproving, actual harm in most
premised upon
evidenced
tered in
his
prejudiced
the elements of that
interests protected by
seems that inherent in
Clause. The
real
is ‘potential
D.C.
in Ross v. United
showing
and available
delay
‘[The defendant’s]
not
might have been more successful if the
States v.
vailable, proving
difficult. And
ble to measure the cost of
documents,
prejudice is often not at hand. Even if it
is possible to show that witnesses and
prisoned
clear bad faith. But concrete evidence of
trial,
lished
“Despite
inability
example,
[116]
sense,
remember
[1932]
233, 238,
or if the
had been shorter.
to limit the
dimmed memories
627]
Wade,
for a lengthy period
establishing
some instances.
the difficulties of
Finally, necessary to consider
whether incorrectly the trial court balanced
the pertinent factors. The stat- trial court
ed:
“Considering this hoc and matter ad factors, all of the I
balancing pertinent