dissenting:
I respectfully dissent, The Court concludes that Ringstaff need not demonstrate prejudice from the delay in bringing him to trial in order to have his conviction set aside because the first three factors of the Barker test weigh heavily against the Government. Critical to its reversal is the decision that it was improper for the state to delay the prosecution pending a determination by the Alabama Supreme Court as to the validity of the state's death penalty statute. In my judgment, the State could *649legitimately wait a reasonable time until this critical issue of law was settled so that Ringstaff had to show he actually suffered from the delay. Since he has failed to make such a showing, I would affirm the district court’s denial of habeas corpus relief.
Ringstaff was brought to trial and convicted of murder some 23 months following his arrest, a period which I assume for purposes of this dissent to raise Sixth Amendment concerns, although there is no precise time for the constitutional right to a speedy trial to be implicated. Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972) (“We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate.”)
Seven of those months are attributable to the defendant’s request for a psychiatric evaluation and are excused from the speedy trial computation. United States v. O’Bryant, 775 F.2d 1528 (11th Cir.1985).
Nine of the remaining 16 months involve a decision by the Government to wait until the Alabama Supreme Court rendered its decision in Beck v. State, 396 So.2d 645 (Ala.1981). In that case, the Alabama Supreme Court held that the provision in state’s death penalty statute prohibiting lesser offense instructions — struck down as unconstitutional by the United States Supreme Court in June 1980 — could be severed from the rest of the statute.
Until the Beck decision, the validity of the State’s entire capital statutory scheme was in doubt. As the Alabama Court of Criminal Appeals stated, the Government exercised “commendable caution and circumspection rather than rushing ahead” when it chose not to proceed to trial against Ringstaff on capital murder charges pending a resolution of the issue. Ringstaff v. State, 451 So.2d 375, 381 (Ala.Crim.App.1984), cert. denied, No. 83-652 (Ala., June 1, 1984). Had the Government pursued the prosecution, it faced the possibility that Ringstaff would have been convicted of capital murder under a statute later determined to be invalid. It would then have been forced to retry Ringstaff, a particularly inefficient use of resources, especially where it is likely that Ringstaff would have been convicted at least of the very same charge for which he now appeals.
Just as the courts have found reasonable the delay while pretrial motions and interlocutory appeals are resolved, it was reasonable for the Government to wait until this very important issue of law was settled before bringing Ringstaff to trial. See United States v. Loud Hawk, 474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (Government’s interlocutory appeal which took two years accorded little weight in Barker balancing); Government of the Virgin Islands v. Birmingham, 788 F.2d 933 (3d Cir.1986) (18-month delay between indictment and trial justified where Territorial Court sought clarification of applicability of Speedy Trial Act to criminal proceedings in its court); see also Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (although not addressing speedy trial, Court recognizes in the context of a double jeopardy claim that resolution of some issues prior to trial is appropriate).
There is no evidence that the delay was due to bad faith or a dilatory purpose by the Government. See Loud Hawk, 474 U.S. at 316, 106 S.Ct. at 656. The panel asserts that the Government’s motive was to increase the likelihood that Ringstaff would receive the death penalty and that this motive was an improper maneuver to gain some “tactical advantage” over the defense. It speculates that the trial court may have been hesitant to sentence a defendant to death because of the uncertainty surrounding Alabama law prior to Beck. The district court made no finding of fact that such was the State's motive and such a finding is not supported by the evidence. This is not a case where the Government delayed to harass the defendant or to specifically interfere with the defense, such as delaying the trial to prevent a particular witness from testifying. United States v. Avalos, 541 F.2d 1100, 1113 (5th Cir.1976) cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977); cf. Arrant v. Wainwright, 468 F.2d 677, 681 (5th Cir.1972) (two-year delay in murder trial not justified when only reason offered by state attorney was that he “did not want to see [the defendant] be acquitted of this crime.”), cert. denied, 410 U.S. 947, 93 S.Ct. 1369, 35 L.Ed.2d 613 (1973). Rather, the Government merely waited to see if it could legally proceed with a capital murder prosecution.
The courts should not lightly dispense with the actual prejudice requirement be*650cause to do so necessarily results in the “severe remedy of dismissal of the indictment.” Barker, 407 U.S. at 522, 92 S.Ct. at 2188. That is, the three Barker factors must indeed weigh heavily against the Government before prejudice should be presumed. Indeed, in Barker itself there was a five-year delay between the defendant’s arrest and trial with much of that time attributable to the State’s desire to wait until the conviction of a co-defendant whose testimony was believed necessary to the defendant’s conviction. Although noting that the delay was “too long a period,” the Court nonetheless proceeded to the analysis of whether the defendant had been prejudiced by it, ultimately concluding he had not.
Where, as here, the delay was not the result of a deliberate attempt to “hamper the defense,” it should be afforded little weight in the balance. Thus, I would require Ringstaff to show he suffered actual prejudice in order to prevail. The Court in Barker identified three interests which the Speedy Trial right was designed to protect: “(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.” 407 U.S. at 532, 92 S.Ct. at 2193. Of these three interests, the Supreme Court characterized the third as being the most significant.
The only evidence of impairment to his defense was Ringstaff’s testimony that he was unable to contact a particular witness named “Larry” who could have established an alibi for him. That complaint goes to the fact of his incarceration, an issue that he has not raised, and not to the length of time between his arrest and trial. It is at least arguable that more time, not less, was needed in order for Ringstaff to find this man and that his only claim is that he should have been free during the intervening period. At any rate, as the district court found and Ringstaff himself concedes, there were several alibi witnesses who did testify as to his whereabouts on the date of the murder and “Larry's” testimony was merely cumulative of the testimony already presented at trial.
Without some showing of actual prejudice, the district court’s denial of a writ of habeas corpus should be affirmed.