664
Thomas, J., dissenting
plains why the lower courts consistently have held that, with respect to sealed (and hence secret) indictments, the protections of the Speedy Trial Clause are triggered not when the indictment is filed, but when it is unsealed. See, e. g., United States v. Watson, 599 F. 2d 1149, 1156-1157, and n. 5 (CA2 1979), modified on other grounds sub nom. United States v. Muse, 633 F. 2d 1041 (CA2 1980) (en banc); United States v. Hay, 527 F. 2d 990, 994, and n. 4 (CA10 1975); cf. United States v. Lewis, 907 F. 2d 773, 774, n. 3 (CA8 1990).
It is misleading, then, for the Court to accuse the Government of "ask[ing] us, in effect, to read part of Barker right out of the law," ante, at 654, a course the Court resolutely rejects. For the issue here is not simply whether the relevant language from Barker should be read out of the law, but whether that language trumps the contrary logic of Marion, MacDonald, and Loud Hawk. The Court's protestations notwithstanding, the two lines of authority cannot be reconciled; to reaffirm the one is to undercut the other.
In my view, the choice presented is not a hard one. Barker's suggestion that preventing prejudice to the defense is a fundamental and independent objective of the Clause is plainly dictum. Never, until today, have we confronted a case where a defendant subjected to a lengthy delay after indictment nonetheless failed to suffer any substantial impairment of his liberty. I think it fair to say that Barker simply did not contemplate such an unusual situation. Moreover, to the extent that the Barker dictum purports to elevate considerations of prejudice to the defense to fundamental and independent status under the Clause, it cannot be
other words, for purposes of the right to counsel, an "accused" must in fact be accused of a crime; unlike the speedy trial right, it does not attach upon arrest. See, e. g., Gouveia, supra, at 189-190; McNeil v. Wisconsin, 501 U. S. 171, 175-176 (1991).
Page: Index Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: October 4, 2007