133/

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use of traditional methods.

The fourth recommendation of the Kaufman

Committee would broaden the proscriptions of Rule 53 of the Federal

Rules of Criminal Procedure to control news activity throughout the 134/

courthouse.

The development of court rules under these recommendations

has been diverse. The learning from the appellate case law and these two tribunals to trial judges may be summarized as follows:

1) Permit continuance, change of venue, extensive
voir dire examination, sequestation and polling
liberally, and

2) utilize restrictions on attorneys and closed
hearings where necessary, but do so on an ex-
tensive record.

Before moving to contemporary legislative proposals in this area, it
is necessary to consider one development in the law whose intervention
has completely post-dated the Kenneday assassination, but would create
considerable difficulty in any Oswald case as it does now in all crim-

inal cases.

133/ Id. at 412-413.

134/ Id. at 414-415.

In discussing the contemporary alternatives available to mitigate prejudicial pretrial publicity, the traditional motion for con135/ tinuance was reserved for latter discussion. Continuances are all

too often routinely granted; but in the case of prejudicial publicity continuances are often necessary. A point will be reached, however, when the granting of a continuance to acquire an impartial jury will 136/ collide with the defendant's right to a speedy trial.

This question of Oswald's right to a speedy trial as opposed

to his right to an impartial jury probably would not have arisen. As the Supreme Court bluntly asserted in 1972, "although a speedy trial is guaranteed the accused by the Sixth Amendment to the Constitution, 137/ the Court has dealt with that right on infrequent occasions." With this opening remark for a unanimous court, Justice Powell proceeded to analyze two lines of thought: 1) that the court should set a time within which a defendant must be offered a trial, and 2) that the Court

should consider the right to a speedy trial only when formally de138/

manded. This is not to infer a lack of case law on speedy trial;

135/ Supra, notes 40-50, and accompanying text.

136/ It will be assumed temporarily that this collision cannot be avoided. Whether this assumption is correct will be the focus of later paragraphs. See, infra, notes 149-153, and accompanying text.

137/ Barker v. Wingo, 407 U.S. 514, 515 (1972) (citation omitted). "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial ..." Const. of the United States., Amendment VI.

138/ 407 U.S. at 522-528.

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up to this time there had been significant, but sporadic and uncon

certed judicial opinion. As the Court noted, and as had been true for the preceding decade, most of the states and Federal Circuits

139/

recognized and used some form of a "demand rule." This approach

would have put Oswald in the position of possibly choosing to be tried by a biased jury if he wished to be tried quickly. The Court restated the rule against presuming the waiver of a fundamental right from lack of asserting it, but also rejected the legislative function 140/ necessary for it to assert that set time for an offer of trial. The Court developed the balancing test of four factors: 1)

length of delay, 2) reason for the delay, 3) defendant's assertion 141/ of the right and 4) prejudice to the defendant's case. The length of the delay was in essence a triggering mechanism, not the demand by the defendant, and to this extent the "demand rule" was rejected and the demand was not to be considered presumptive. The reason for de

139/ Id at 524. Coupled with the concept of waiver, the right to a speedy trial, and whatever time frame "speedy" amounted to, would not begin to run until demanded.

140/ id. at 526-528. Since Barker was a state case it did not offer the Court an opportunity to make rules for the Federal Court under its supervisory powers.

141/ Id. at 530.

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lay poses its own balancing test, with the Court weighing a deliberate
attempt to delay by the prosecution far heavier than overcrowded courts
or the valid reason of a missing witness. The defendant's assertion
of the right is a counter to the reason for delay, much as is the de-
fendant's causing the delay, but no longer would that assertion be a
starting point of analysis. According to the Court, the fourth factor

would include interests such as incarceration and impairment
142/

of the defense.

Before analyzing the interplay of Barker considerations with

a prejudicial publicity situation such as Oswald's, one further step in the development of speedy trial law should be taken. In rejecting the demand rule the Supreme Court moved away from the prevalent practice, but the Court also stopped short of stipulating a fixed time frame within which a jury trial must be offered. The lower courts began developing a presumptive timetable for speedy trial assertions, and, eventually, Congress interceded with a mandatory time table.

In 1975, Congress passed the Speedy Trial Act which placed 143/ mandatory deadlines on most criminal trials. Congress' purpose in

doing so was "to assist in reducing crime and the danger of recidiv ism," or, in short, to increase the deterent value of the criminal

142/ Id. at 530 - 533. Distinguish this usage from the word as used in "prejudicial publicity" although both mean an impairment of ability.

143/ Pub. L. 93-619, 88 Stat. 2076 (January 3, 1975), 18 U.S.C. 3161, et seq. (1970, Supp. 1976).

1

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144/

process. The courts have construed the Act as not marking out the bounds of the Sixth Amendment's guarantee of a right to a speedy 145/

trial. Nonetheless, by 1980, the maximum allowable interval be

tween arrest and trial will be reduced by statute to one hundred 146/

days. Failure to bring the accused to trial within the time limits will result in dismissal on the defendant's motion, although a number of excuses are available to defend against this motion and avoid

144/ H.R. Rep. No. 93-1508 (November 17, 1974), 1974 U.S. Code, Cong. and Admin. News 7401.

145/ E. g. United States v. MacDonald, 531 F.2d 196 (4th Cir. 1976).

146/ The limitation are phased in over five years. According to the Act, 18 U.S.C. 3161(b), (c), (d) and 3163, the time table after passage appears to be as follows: