dissenting:
Murder of his pregnant wife and his 6- and 3-year old daughters, with a blunt instrument, a knife and an ice pick, between midnight and dawn on February 17,1970, in their home at Fort Bragg, North Carolina, was charged to Jeffrey MacDonald by a Federal indictment. His guilt and sanity were established to the satisfaction of the trial jury beyond a reasonable doubt. Nevertheless, this court absolves him forever of this hideous offense, shockingly laying his release exclusively on the failure of the Government to prosecute within a shorter time than it did. The majority’s resolution is achieved through utilization of the Sixth Amendment’s exaction that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . .”1 This implementation of the constitutional clause was held untenable by the District Judge, and I agree.
The opinion of the majority here alludes to Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), a decision that gives guidance in the application of this clause. In Barker, the Supreme Court charted a balancing test, identifying four factors the courts should consider in ascertaining whether the right to a speedy trial has been denied: the length of the delay; the reason for the delay; the defendant’s assertion of the right; and prejudice to the defendant resulting from the delay. Id. at 530, 92 S.Ct. at 2191. The Court emphasized, however, that “[a] balancing test necessarily compels courts to approach speedy trial cases on an ad hoe basis. [The Court] can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right.” Id. Keeping in mind the Court’s repeated admonition that none of the four points mentioned is determinative but, rather, that “they are related factors and must be considered together with such other circumstances as may be relevant,” id. at 533, 92 S.Ct. at 2193, the appellant’s speedy trial premise should be rejected.
With regard to the first factor, the length of the delay, the appellant calls attention to the lapse of five years between the date of the crime, February 17, 1970, and the return of the indictment, January 24, 1975.2 Baldly stated, the count of five years conjures up serious prosecutorial dawdling, but in the light of the record this appearance vanishes.
Immediately upon word of the crimes, the Army’s Criminal Investigation Division (CID) took the primary role in the investigation. Not until May 1,1970, however, did the Army charge MacDonald with the murders. On October 23,1970, the commanding general" of MacDonald’s unit at Fort Bragg *268dismissed the case after reviewing the investigating officer’s report which concluded that the charges were “not true.”
Nevertheless, upon the request of the Department of Justice, the CID still pursued the inquiry in an “extensive and wide ranging” discovery effort. In June, 1972, it submitted to the Department a 13-volume report; supplements thereto were transmitted in November, 1972, and August, 1973, at the Department’s request. These reports reflected the sweeping breadth of the investigation, which embraced almost 700 interviews and numerous scientific tests. A number of Government attorneys having reviewed and evaluated the reports, a grand jury was impanelled in August, 1974 — only one year after the filing of the CID’s final investigative report — to consider the MacDonald family murders.
While the grand jury was taking evidence, the Federal Bureau of Investigation continued the probe. Its exploration led to the exhumation of the bodies of the three victims; the object was to obtain samples of their hair, in order to compare them with strands found on pieces of evidence in the MacDonald home. Obviously, neither the grand jurors nor the Government were idle between the calling of the jury in August, 1974, and the return of the indictment in January, 1975.
The crucial period of delay attributable to the Government, then, is, at most, the period of slightly more than two years between the CID’s submission of its initial, major report in June, 1972, and the convening of the grand jury in August, 1974. Even assuming that the case could have been put before a grand jury at an earlier date, the fact that some substantial delay occurred only touches off inquiry into the other relevant factors and does not itself establish a constitutional deviation. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2191.
Passing to the second factor isolated in Barker — the justification the Government offers for its delay — contrary to the majority’s condemnation of the Government, to me the deferment of grand jury submission was well advised, both in public concern and in fairness to MacDonald. Certainly, the Department of Justice was wise to await a mature completion of the CID’s inquisition, taking advantage of the comprehensiveness and expertness of its scrutiny and evaluation of the evidence.
Fairness to MacDonald, too, dictated postponement of the calling of a grand jury. Historically, the grand jury has been, and presently still stands as, an institution interposing a bulwark for the protection of the individual citizen as well as of the public. Because an indictment is a solemn charge, whether followed by a verdict of guilty or an acquittal, the deliberations and returns of a grand jury should never be regarded as mere formalities. Notwithstanding that, after acquittal, the indictment is theoretically without force or effect, as a practical matter, it brands the subject as a criminal suspect for the rest of his life; it will be recalled whenever his name is mentioned, especially when the offense charged is particularly grave or shocking. In addition to the personal anxiety and humiliation anyone so accused endures, the practical consequences of this stigma to a banker, lawyer, physician, or any person holding a position of responsibility may be devastating-. It follows as a matter of fairness that no one should be exposed to this future shadow until the Government has gleaned all available evidence.
Appellant contends, and the majority agrees, that the justifications the Government offers for its delay in seeking the indictment are wholly unacceptable. Insofar as the Government may cite internal bureaucracy as a source of postponement, some disapproval may be warranted. Nevertheless, the quantity of evidence amassed, and the time required to assess it, must be taken into account. The 1972 report, it will be remembered, comprised not less than 13 volumes; these had to be closely read and digested, not given just a sketchy oversight. Finally, it should be kept in mind throughout, any failure of the Government’s explanation completely to justify the entire period of delay is not *269decisive; it is merely a factor to be considered in the balance.
As to the third consideration enumerated in Barker, it is indisputable that MacDonald attempted to assert his right to a speedy trial. During the years involved, he manifested an eagerness to have the matter resolved and apparently did nothing to impede the progress of the prosecution.
The fourth factor to which Barker directs attention is prejudice to the defendant. There and in Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) (per curiam), the Court “expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial.” Id. at 26, 94 S.Ct. at 189. The majority here relies on that precept in averring that the delay in MacDonald’s indictment gave rise to “the substantial possibility of prejudice,” and in deeming that possibility a sufficient basis for concluding that his right to a speedy trial had been denied.
Admittedly, MacDonald need not affirmatively prove actual prejudice as a single, essential prerequisite to his claim under the Sixth Amendment; nonetheless, we must turn to the record and to the surrounding circumstances to ascertain the extent, if any, to which MacDonald’s defense was impaired directly as a consequence of the delay in prosecution.3 Although the focus is on the possibility of prejudice, we must not ignore what actually transpired.4 In this, I join the District Judge’s finding, in his post-trial order refusing bail pending appeal, that “[t]he fears . . . that the defendant’s ability to defend the case adequately might be seriously prejudiced by the pre-indictment delay have not been borne out in the record developed at trial.” United States v. MacDonald, 485 F.Supp. 1087 (E.D.N.C.1979) (accent added).
Both in brief and in oral argument, appellant put forward a number of instances in which, he complains, his defense suffered as a result of the delay in his trial. A reading of the record reveals, however, that MacDonald’s ability to defend himself was not significantly impaired, either in the particular ways he names or in any other manner apparent in the record.
Among the impediments to his defense MacDonald urges is deterioration of certain physical evidence between the time of the murders and the trial date. He calls attention to his pajama top, asserting that characteristics of the multiple puncture holes found in it — characteristics that might have enabled him to contradict the prosecution’s *270damaging inferences — had vanished with time. Advertence to the record discloses, however, that the loss of these characteristics (the visible differences between “entry holes” and “exit holes”) took place rapidly and may not be attributed specifically to the two-year delay imputed to the Government; indeed, it is admitted that even in 1971 few of the holes in the garment could be identified as entry or exit holes. Another of MacDonald’s aggrievements centers on the deterioration of a bloody footprint, which he was no longer able to distinguish adequately at trial. He had not contested the print as his, however, and he fails to show the import of that line of inquiry. Other contentions of changes in the physical evidence likewise do not demonstrate convincingly that the defendant’s situation was significantly weakened by the delay in indictment.
The next ground for MacDonald’s insistence as to prejudice is the effect of the delay on the testimony of witnesses. Foremost in this argument is the impact of the postponement on the testimony of Helena Stoeckley. MacDonald contends that delay effectively robbed him of the benefit of her testimony because, in the intervening period, she had lost memory of her activities, her whereabouts, and her companions on the night of the murders, and of certain inculpatory remarks she subsequently had made.
The majority agrees with appellant that Stoeckley’s statement at trial that she could not recall her activities in the critical hours “had a great potential for prejudice to MacDonald, given the substantial possibility that she would have testified to being present in the MacDonald home during the dreadful massacre.” Supra, at 264. Nothing in the record, however, warrants the assumption that Stoeckley would have or could have given the testimony the majority would ascribe to her had the Government secured its indictment earlier.
Stoeckley herself in her trial testimony explains that her inability to recall the predawn events of February 17, 1970, resulted from her consumption, earlier in the evening, of large quantities of drugs; she in no way indicated that time had weakened her recollection. The evidence given by a neighbor of Stoeckley’s at the Army hearings in 1970 narrates that, within a week or two of the murders, Stoeckley told him that she could not remember where she had been on the night of the crime. Similarly, the record reveals that the statements concerning the murders, which she reputedly made to various persons in the months and years preceding MacDonald’s trial, are vague, fragmented and contradictory; they do not indicate simply a gradually fading memory, eroded by time.5 Unmaintainable on the record is the majority’s position that it was “reasonable to expect [Stoeckley] might have testified” that she witnessed the murders and that “[t]he Government’s inexcusable delay of over two years’ duration cannot be eliminated as a potential — indeed a probable — cause of [her] memory lapse.” Supra at 264. Instead, the record fully upholds the Government’s contention that any culpable delay on its part had no discernible effect on Stoeckley’s testimony. Furthermore, none of the other instances of preju*271dice he lists tends to prove that MacDonald’s ability to defend himself was impaired significantly by the deferred indictment.
Finally, in this case, viewed in its entirety, the absence of substantial prejudice and the reasonable assessment of the other factors to which Barker draws attention do not sustain the accusation that the Government disregarded its constitutional duty to bring MacDonald promptly to trial or trampled on the aims of the Sixth Amendment.
Affirmance of the judgment now on appeal is demanded by the record.
. Incidentally, Congress has declared that there shall be no limitation of time on a prosecution for murder. 18 U.S.C. § 3281.
. It is conceded that the Government is not responsible for any significant delay occurring since then.
. Prejudice is to be considered in the light of the purposes of the speedy trial right: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. at 2193. The first concern is not raised in this case because MacDonald was subject to some form of restraint for only the brief period between April and October, 1970, and that by the Army. Moreover, acknowledging that prejudice, in the form of personal adversity unrelated to the merits of the defense, will be “inevitably present in every case to some extent,” id. at 537, 92 S.Ct. at 2195 (White, J., concurring), quoted in Moore v. Arizona, 414 U.S. at 27, 94 S.Ct. at 190, it may be presumed that MacDonald suffered anxiety and concern as a result of the delay in prosecution. Nevertheless, the record reveals that he was able to proceed with his life, reestablishing himself professionally and developing new friendships. Because the postponement of his indictment does not appear to the District Judge or to me to have impaired, directly or inordinately, MacDonald’s personal life during the period at issue, this form of prejudice is not a crucial factor in this case. Therefore, the analysis will focus on the third concern, prejudice to MacDonald’s defense on the merits.
. The opinion of the Supreme Court holding that this prosecution could not be dismissed on speedy trial grounds prior to trial on the merits, United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), rev’g 531 F.2d 196 (4th Cir. 1976), supports this approach. The Court noted that “[t]he resolution of a speedy trial claim necessitates a careful assessment of the particular facts of the case” after those facts have been established at trial. Id. at 858, 98 S.Ct. at 1551. The Court added: “Before trial, of course, an estimate of the degree to which delay has impaired an adequate defense tends to be speculative.” Id. One of the advantages of reviewing such a motion after a decision on the merits has been rendered, therefore, is that, for the most part, speculation can be avoided.
. The District Judge noted, with regard to Stoeckley’s testimony at trial:
Stoeckley was put on the stand by defense counsel and questioned at considerable length about her knowledge of the MacDonald murders. The substance of her testimony was that she was not involved in the murders but that because of her drug-crazed condition she had at least come to wonder whether or not she was in fact involved, and she admitted to owning . clothing [similar to that ascribed by MacDonald to one of the alleged intruders] . . . and to the fact that she seeme.d to go into mourning following the murders. The Court gained the unmistakable impression which it believes was shared by the jury that this pathetic figure was suffering from drug-induced mental distortion and that she could be of no help to either side in the case.
United States v. MacDonald, 485 F.Supp. 1087 (E.D.N.C.1979). Totally apart from the question of the trustworthiness or untrustworthiness of Stoeckley’s testimony, her remarks on the stand do not reflect a diminishing recollection of the events of nine years before, but rather a pre-existing gap in her ability to recount those events. This gap cannot reasonably be attributed to the prosecution’s failure to secure an indictment earlier.