dissenting.
I respectfully dissent from the majority's decision to decide this case on interlocutory appeal.4 Except under extraordinary circumstances, reviewing the denial of a Sixth Amendment speedy trial claim is best done only after the relevant facts have been developed at trial. The pretrial record before us simply does not show with any certainty the degree to which delay has impaired Harrell's ability to present a defense. I know of no sound reason to engage in the imprecise game of speculating about the prejudice the lengthy delay may have caused Harrell when that prejudice can be gauged more accurately after trial.
The difficulty in assessing how a lengthy delay has impaired a defendant's defense before the trial record has been developed is well-illustrated in this case. In finding actual impairment, the majority points to the victim's deposition testimony in which the then eighteen-year old deponent was able to describe the elements of the crime, but she was unable to recall major events and circumstances surrounding the alleged molestation. Believing this to be "the critical prejudicial item," op. at 962-968 n. 1, the majority concludes the "apparent and substantial lack of clarity in her memory" will impair Harrell's ability to attack his accuser's credibility through cross-examination. Op. at 965. I cannot predict how the factfinder will assess the victim's testimony, or whether Harrell will be able to effectively challenge his accuser's eredibility through cross-examination. It seems to me, however, that the victim's faded memory is much more likely to hurt the State's case than Harrell's defense.
I also believe speedy trial claims are generally inappropriate for interlocutory appeal because the appeal process only postpones further the speedy trial the defendant has demanded. Permitting a defendant to invite delay pending appeal, and then show delay has prejudiced his defense, to me, is a win-win situation we need not create. Although the majority concludes Harrell's defense was prejudiced long before we accepted jurisdiction of this interlocutory appeal, an assertion I believe has yet to be decided, I do not doubt the additional delay has only impaired further the victim's memory.
Finally, requiring Harrell to proceed to trial without first deciding his speedy trial claim neither violates the right we are bound to protect nor leaves him without a remedy. "[The Speedy Trial Clause does not, either on its face or according to the decisions of [the United States Supreme Court], encompass a 'right not to be tried' which must be upheld prior to trial if it is to be enjoyed at all." United States v. MacDonald (1978), 435 U.S. 850, 861, 98 S.Ct. 1547, 1553, 56 L.Ed.2d 18, 27. If a trial were to show that his Sixth Amendment right to a speedy trial was infringed, Harrell would have a remedy through a direct appeal following entry of the final judgment.
Because I do not believe we should ac cept an interlocutory appeal to review the denial of Harrell's speedy trial claim, I cannot concur with the majority's decision to dismiss outright the information charging Harrell with two counts of Class A felony child molesting. I would order this case remanded so that the trial process might be allowed to take its course.
. I acknowledge that this court accepted jurisdiction of this case when a former member of this court, who is now retired, and I voted to grant an interlocutory appeal. Upon further reflection I believe that decision was in error. The present members of this panel who are in the majority did not participate in the original decision to grant the interlocutory appeal.