407 U.S. 514 (1972), 71-5255, Barker v. Wingo

Docket Nº:No. 71-5255
Citation:407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101
Party Name:Barker v. Wingo
Case Date:June 22, 1972
Court:United States Supreme Court

Page 514

407 U.S. 514 (1972)

92 S.Ct. 2182, 33 L.Ed.2d 101




No. 71-5255

United States Supreme Court

June 22, 1972

Argued April 11, 1972




Petitioner was not brought to trial for murder until more than five years after he had been arrested, during which time the prosecution obtained numerous continuances, initially for the purpose of first trying petitioner's alleged accomplice so that his testimony, if conviction resulted, would be available at petitioner's trial. Before the accomplice was finally convicted, he was tried six times. Petitioner made no objection to the continuances until three and one-half years after he was arrested. After the accomplice was finally convicted, petitioner, after further delays because of a key prosecution witness' illness, was tried and convicted. In this habeas corpus proceeding, the Court of Appeals, concluding that petitioner had waived his right to a speedy trial for the period prior to his demand for trial, and, in any event, had not been prejudiced by the delay, affirmed the District Court's judgment against petitioner.

Held: A defendant's constitutional right to a speedy trial cannot be established by any inflexible rule, but can be determined only on an ad hoc balancing basis in which the conduct of the prosecution and that of the defendant are weighed. The court should assess such factors as the length of and reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. In this case, the lack of any serious prejudice to petitioner and the fact, as disclosed by the record, that he did not want a speedy trial outweigh opposing considerations, and compel the conclusion that petitioner was not deprived of his due process right to a speedy trial. Pp. 519-536.

442 F.2d 1141, affirmed.

POWELL, J., delivered the opinion for a unanimous Court. WHITE, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 536.

Page 515

POWELL, J., lead opinion

MR. JUSTICE POWELL delivered the opinion of the Court.

Although a speedy trial is guaranteed the accused by the Sixth Amendment to the Constitution,1 this Court has dealt with that right on infrequent occasions. See Beavers v. Haubert, 198 U.S. 77 (1905); Pollard v. United States, 352 U.S. 354 (1957); United States v. Ewell, 383 U.S. 116 (1966); United States v. Marion, 404 U.S. 307 (1971). See also United States v. Provoo, 17 F.R.D. 183 (D. Md.), aff'd, 30 U.S. 857 (1955). The Court's opinion in Klopfer v. North Carolina, 386 U.S. 213 (1967), established that the right to a speedy trial is "fundamental," and is imposed by the Due Process Clause of the Fourteenth Amendment on the States.2 See Smith v. Hooey, 393 U.S. 374 (1969); Dickey v. Florida, 398 U.S. 30 [92 S.Ct. 2185] (1070). As MR. JUSTICE BRENNAN

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pointed out in his concurring opinion in Dickey, in none of these cases have we attempted to set out the criteria by which the speedy trial right is to be judged. 398 U.S. at 401. This case compels us to make such an attempt.


On July 20, 1958, in Christian County, Kentucky, an elderly couple was beaten to death by intruders wielding an iron tire tool. Two suspects, Silas Manning and Willie Barker, the petitioner, were arrested shortly thereafter. The grand jury indicted them on September 15. Counsel was appointed on September 17, and Barker's trial was set for October 21. The Commonwealth had a stronger case against Manning, and it believed that Barker could not be convicted unless Manning testified against him. Manning was naturally unwilling to incriminate himself. Accordingly, on October 23, the day Silas Manning was brought to trial, the Commonwealth sought and obtained the first of what was to be a series of 16 continuances of Barker's trial.3 Barker made no objection. By first convicting Manning, the Commonwealth would remove possible problems of self-incrimination, and would be able to assure his testimony against Barker.

The Commonwealth encountered more than a few difficulties in its prosecution of Manning. The first trial ended in a hung jury. A second trial resulted in a conviction, but the Kentucky Court of Appeals reversed because of the admission of evidence obtained by an illegal search. Manning v. Commonwealth, 328 S.W.2d 421 (1959). At his third trial, Manning was again convicted, and the Court of Appeals again reversed

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because the trial court had not granted a change of venue. Manning v. Commonwealth, 346 S.W.2d 755 (1961). A fourth trial resulted in a hung jury. Finally, after five trials, Manning was convicted, in March, 1962, of murdering one victim, and, after a sixth trial, in December, 1962, he was convicted of murdering the other.4

The Christian County Circuit Court holds three terms each year -- in February, June, and September. Barker's initial trial was to take place in the September term of 1958. The first continuance postponed it until the February, 1959, term. The second continuance was granted for one month only. Every term thereafter for as long a the Manning prosecutions were in process, the Commonwealth routinely moved to continue Barker's case to the next term. When the case was continued from the June, 1959, term until the following September, Barker, having spent 10 months in jail, obtained his release by posting a $5,000 bond. He thereafter remained free in the community until his trial. Barker made no objection, through his counsel, to the first 11 continuances.

When, on February 12, 1962, the Commonwealth moved for the twelfth time to continue the case until the following term, Barker's counsel filed a motion to dismiss the indictment. The motion to dismiss was denied two weeks later, and the Commonwealth's motion for a continuance was granted. The Commonwealth was granted further continuances in June, 1962, and September, 1962, to which Barker did not object.

In February, 1963, the first term of court following Manning's final conviction, the Commonwealth moved to set Barker's trial for March 19. But on the day scheduled for trial, it again moved for a continuance until the June term. It gave as its reason the illness

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of the ex-sheriff who was the chief investigating [92 S.Ct. 2186] officer in the case. To this continuance, Barker objected unsuccessfully.

The witness was still unable to testify in June, and the trial, which had been set for June 19, was continued again until the September term over Barker's objection. This time the court announced that the case would be dismissed for lack of prosecution if it were not tried during the next term. The final trial date was set for October 9, 1963. On that date, Barker again moved to dismiss the indictment, and this time specified that his right to a speedy trial had been violated.5 The motion was denied; the trial commenced with Manning a the chief prosecution witness; Barker was convicted and given a life sentence.

Barker appealed his conviction to the Kentucky Court of Appeals, relying in part on his speedy trial claim. The court affirmed. Barker v. Commonwealth, 385 S.W.2d 671 (1964). In February, 1970, Barker petitioned for habeas corpus in the United States District Court for the Western District of Kentucky. Although the District Court rejected the petition without holding a hearing, the court granted petitioner leave to appeal in forma pauperis and a certificate of probable cause to appeal. On appeal, the Court of Appeals for the Sixth Circuit affirmed the District Court. 442 F.2d 1141 (1971). It ruled that Barker had waived his speedy trial claim for the entire period before February, 1963, the date on which the court believed he had first objected to the delay by filing a motion to dismiss. In this belief the court was mistaken, for the record reveals

Page 519

that the motion was filed in February, 1962. The Commonwealth so conceded at oral argument before this Court.6 The court held further that the remaining period after the date on which Barker first raised his claim and before his trial -- which it thought was only eight months but which was actually 20 months -- was not unduly long. In addition, the court held that Barker had shown no resulting prejudice, and that the illness of the ex-sheriff was a valid justification for the delay. We granted Barker's petition for certiorari. 404 U.S. 1037 (1972).


The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system.7 In addition, persons released on bond for lengthy periods awaiting trial have an opportunity to commit other crimes.8 It must be of little comfort to the residents of Christian County, Kentucky, to know that Barker was at [92 S.Ct. 2187] large on bail for over four years while accused of a vicious

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and brutal murder of which he was ultimately convicted. Moreover, the longer an accused is free awaiting trial, the more tempting becomes his opportunity to jump bail and escape.9 Finally, delay between arrest and punishment may have a detrimental effect on rehabilitation.10

If an accused cannot make bail, he is generally confined, as was Barker for 10 months, in a local jail. This...

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