dissenting:
I respectfully dissent from the holding of the majority that the petitioner’s constitutional right to a speedy trial was violated. In my judgment, nothing in the terribly tedious and tortured history of this case from the time of Jones’ arrest on July 12, 1972, to his trial on December 11, 1974, warrants the ultimate conclusion reached by the majority that the constitutional precepts enunciated in Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, *1933 L.Ed.2d 101 (1972), and its progeny, mandate that Jones be set free without trial because of the State’s “dilatoriness” in bringing the case to disposition.
The majority divides the 29-month delay in bringing Jones to trial into three parts. As to the period from July 12,1972, to July 21,1973, it properly acknowledges that the delay was completely attributable to Jones’ own actions. It similarly acknowledges that the delay from June 26, 1974, to December 11, 1974, was also attributable solely to Jones. It identifies the 11-month delay from July 21, 1973, to June 26, 1974, as the crucial period in assessing whether the State denied Jones’ constitutional right to a speedy trial; it attributes the delay during this period entirely to the State’s procrastination.
Stripped of excessive detail, the chronology of significant events amounts essentially to this. The five-month period following Jones’ arrest was taken up with the usual bevy of motions and preliminary skirmishing between Jones and the prosecutor. During this period no less than five lawyers, including F. Lee Bailey and Stephen L. Miles, entered their appearance on behalf of Jones. While a trial date in January of 1973 was agreed upon, Jones nevertheless filed a motion for a speedy trial on January 2, 1973. The State responded promptly by setting the case for trial. Just as promptly, Jones, acting through Bailey, waived his right to a speedy trial by letter dated April 5,1973, wherein it was stated that “the defense does not demand immediate trial until such time as you are notified to the contrary.” By May of 1973, Jones had discharged four of his lawyers, including Bailey, leaving Miles as his only counsel. Bailey did not, however, strike his appearance. Robert Frank entered his appearance as counsel for Jones on June 7, 1973. Shortly thereafter, Jones went to trial on federal charges; that trial lasted from June 18,1973, to July 21,1973.
The State took no immediate action to set the case for trial following Jones’ conviction in the federal court, undoubtedly because it considered Jones’ waiver of a speedy trial still viable. In September of 1973, Miles struck his appearance as counsel for Jones; he had been indicted in July of 1973. *20Frank continued as Jones’ counsel. The record indicates that plea negotiations were taking place during the summer and early fall of 1973. On November 14, 1973, Jones filed his second motion for a speedy trial, acting through Frank. By agreement of counsel, the case was set for trial on February 26,1974, although Frank indicated his desire that the case be tried in January. Frank was then facing disbarment proceedings, with a hearing before a three-judge panel set for February 19, 1974. Jones’ trial date was postponed, with the understanding that he would be arraigned on March 11, 1974, and a firm trial date fixed at that time. Frank was unavailable on March 11, 1974, and the hearing was postponed. Arraignment was reset for April 29, 1974, and trial was scheduled for June 26, 1974. As the trial date approached, Jones complained to the court that he was not ready for trial; he said that Bailey was still his lawyer, and he wanted him to represent him at the trial. Frank struck his appearance on June 19, 1974, and Bailey reentered the picture as counsel on June 26,1974.
Bailey promptly waived Jones’ right to a speedy trial until he could be available for trial. A trial date was agreed upon for November 18, 1974, but Bailey subsequently indicated that he would not be available on this date. The case was rescheduled for trial on December 4, 1974; Bailey appeared as Jones’ counsel. After the jury had been empaneled, Jones moved for a change of venue, which was granted, The case was removed to another county and brought to trial a week later on December 11, 1974. Consistent with his past actions, Jones Undertook to discharge Bailey and employ new counsel. Jones claimed he was not ready for trial, that he had 300 witnesses to call from all over the United States and needed a postponement. The court denied the request for a postponement. In desperation, Jones told the court, “I’d like to have a recess so I can think of something else. . . .” Thereafter, Jones sought to disrupt the trial and eventually had to be shackled and gagged.
The majority concludes that the facts show that Jones at all times had an attorney ready for trial, and that the delays attributable to him did not serve to mitigate the State’s *21failure to bring him to trial between July 21,1973 and June 26, 1974. While I agree that the delay attributable to Jones did not insulate the State from discharging its duty to bring Jones to trial, I think that the critical period began with the filing of the second speedy trial motion on November 14, 1973, and ended on June 26, 1974, when Jones again waived his right to a speedy trial. As the majority opinion indicates, truly exceptional circumstances existed during this period; among other things, the State’s Attorney was on trial during January and February of 1974; Miles also was brought to trial in February on the indictment pending against him — an indictment which implicated Jones. Frank, although previously acquitted of criminal charges brought against him, was then Jones’ only counsel and he was facing disbarment proceedings. Not all of the delay during this critical period was chargeable to the State; part of it was plainly due to Frank’s unavailability and his practical inability to try the case during the pendency of his disbarment proceedings.
As I see it, the State’s dereliction in bringing the case to trial during the critical period, and particularly in the spring of 1974, was not — all circumstances considered — so gross as to call for the ultimate sanction of dismissal of all charges against Jones. Barker v. Wingo, supra, requires that we engage in a “difficult and sensitive balancing process” in passing upon a claimed denial of the constitutional right to a speedy trial; it calls for a functional analysis of the right in the particular context of the case under consideration. In view of the extraordinary circumstances involved in Jones’ ease, and taking into account the four factors applicable in determining whether the constitutional right to a speedy trial has been denied, and giving them appropriate weight, I would agree with the Court of Special Appeals and affirm the judgment. In so concluding, I do not intend to indicate approval of the State’s handling of the case. On the contrary, it appears to me that the State unwittingly permitted itself to be manipulated by Jones, acting on his own and through a battery of attorneys, it being his grand design to obtain a dismissal of the indictment for lack of a speedy trial. That *22such a result ensued in this case under the majority’s opinion should serve as a bitter lesson to prosecutors and judges throughout the State not to risk playing Russian roulette with the public’s right to have criminal defendants brought to the bar of justice on a timely basis.
Judge Smith authorizes me to state that he concurs in the views expressed herein.