finding of a Sixth Amendment violation.” Hakeem v.
Beyer, 990 F.2d at 766; Wells v. Petsock, 941 F.2d 253,
258 (3d Cir. 1991); United States v. Wangrow, 924 F.2d
1434, 1436-1437 (8th Cir. 1991).
The New Jersey Supreme Court has held that “[a]ny
delay that defendant caused or requested [sh]ould not
weigh in favor of finding a speedy trial violation.” State
v. Long, 119 N.J. 439, 470 (1990), quoting State v.
Gallegan, 117 N.J. 345, 355 (1989); see also United States
v. Jones, 524 F.2d 834, 850 (D.C. Cir. 1975) (“a
defendant should not be able to take advantage of a delay
substantially attributable to his own trial motions when
the court acts upon them within a reasonable period of
time”); State v. Marcus, 294 N.J. Super. 267, 293 (App.
Div. 1996), certif. denied 157 N.J. 543 (1998) (delay for
the resolution of complex issues relating to the
admissibility of DNA evidence and defendant’s
protracted efforts to obtain his own DNA experts, were
“legitimate and substantial reasons,” which did not
violate speedy trial right).
E. Third Factor: Whether and How Defendant Asserted
the Right to a Speedy Trial
Although a defendant’s delay in asserting his or her
constitutional right to a speedy trial will not constitute a
waiver of the right, Barker v. Wingo, 407 U.S. at 528,
“failure to assert the right will make it difficult for a
defendant to prove that he was denied a speedy trial.” Id.
at 532. See State v. Marcus, 294 N.J. Super. at 293.
Repeated assertions of the right do not balance this
factor in favor of a defendant when other circumstances
indicate he is apparently unwilling or unready to proceed
to trial. United States v. Loud Hawk, 474 U.S. 302, 313-
14 (1986); Hakeem v. Beyer, 990 F.2d at 764. Where,
through contrary actions, a defendant evidences an
unwillingness to commence with the trial requested, the
request should carry minimal weight. United States v.
Kalady, 941 F.2d 1090, 1095 (10th Cir. 1991), quoting
United States v. Tranakos, 911 F.2d 1422, 1429 (10th
Cir. 1990); Hakeem v. Beyer, 990 F.2d at 765. A
defendant must show that she “‘vigorously pursued a
speedy trial’ if the factor of its assertion is to be weighed
in his favor.” Hakeem v. Beyer, 990 F.2d at 764, quoting
United States v. Koller, 956 F.2d 1408, 1414 (7th Cir.
1992).
Furthermore, when a defendant who is represented
by counsel makes an informal complaint to the court
regarding pre-trial delay, that protest should not be
weighted heavily, absent a motion to dismiss on speedy
trial grounds or, at the very least, some evidence that
defendant instructed his attorney to assert the right to a
speedy trial. Hakeem v. Beyer, 990 F.2d at 766; Gov. of
Virgin Islands v. Pemberton, 813 F.2d at 629. As the
Third Circuit announced in Hakeem, “[W]e believe, if a
defendant is to tip the Barker scales significantly in his
favor on the factor of assertion of the right that, at least in
cases where the accused is represented by counsel, some
formal motion should be made to the trial court or some
notice given to the prosecution. Hakeem v. Beyer, 990
F.2d at 765.Whenever a defendant fails to assert his right to a
speedy trial in some way, such failure will “weigh very
heavily” against the defendant if he subsequently claims
he was denied a speedy trial. See also State v. Holmes, 214
N.J. Super. 195, 210 (App. Div. 1986); State v.
McNamara, 212 N.J. Super. 102, 105-106 (App. Div.
1986); State v. Smith, 131 N.J. Super. 354, 368-369
(App. Div. 1974).Cases in which courts considered the fact that
defendant failed to assert his right to a speedy trial by
moving to dismiss the pending complaint: State v. Szima,
70 N.J. at 202; State v. Raymond, 113 N.J. Super. 222,
227 (App. Div. 1971); State v. Gilliam, 224 N.J. Super.
759, 765 (App. Div. 1988).Case in which court considered the fact that
defendant failed to assert his right to a speedy trial by
moving to dismiss the indictment: State v. Gilliam, 224
N.J. Super. at 765.F. Fourth Factor: Prejudice to the DefensePrejudice to defendant has often been characterized
as the most important factor. Hakeem v. Beyer, 990 F.2d
at 760; Wells v. Petsock, 941 F.2d at 258. However,
prejudice to a defendant must be assessed in the light of
the interests that the speedy trial right was designed to
protect. Barker v. Wingo, 407 U.S. at 532. The United
States Supreme Court has identified three such interests:
(1) to prevent oppressive pretrial incarceration; (2) to
minimize the accused’s anxiety and concern over the
outcome of the litigation; and (3) to limit the possibility
that the defense will be impaired. Id. at 532. Of these,
the most serious is the last, because the “inability of a
defendant to adequately prepare his case skews the
fairness of the entire system.” Id.It is well-established that “[v]ague allegations of
anxiety are insufficient to state a cognizable claim.”
Hakeem v. Beyer, 933 F.2d at 762. Rather, a defendant