correct extreme malfunctions in state criminal justice system and in our opinion in this case a twelve year delay between issuance of a criminal point and trial is the definition of an extreme malfunction of the criminal justice that the supreme court has said the criminal complaint they describe was no different than the criminal complaint we described were shot but i believe the analysis was a little different i open to the public in that it gets bostic we talked about the critical issue for triggering the speech on the right being the moment at which the prosecution was really initiating now we also have said in mashad that the that what matters is whether this kind of in the form of public accusation those are not necessarily the same thing and as i read a shot in boston together it seems like our president is suggesting that until there is the kind of former public accusation that actually shows a commitment to prosecute the speedy call clarke has not been boston together seem to suggest that that occurs not just with the filing of a complaint even though on its face it may be a form of public accusation but it occurs only when there's been more intentionality in committing to them in this case they lodged a warrant against the defendant further indicating their intent so if i get it right you're saying that the federal test is is this state committed to prosecuting the person if the highest court in the state says yes deal with the fact that our presence in boston and rashad don't seem to allow for that argument to succeed since we had exactly the kind of complaint in respond in a very similar type of issue in boston but putting them together is that you'd say now we're in a different situation because we know something about the states commitment to prosecute from the filing of this formal complaint that we didn't know and were shot in boston yes and we better that in a way that in effect is only gauging the criminal can and the only difference is that if you waive your right to indict well that's your right to indictment so the other argument would be that in massachusetts if you waive your right to indictment you're also aware you're right this trial would just like it the logic of it the notion is  this view the federal street trial right is meant to be triggered at the moment when do you keep used really is in serious jeopardy of being prosecuted by the state is that if the state tells us we have done what we consider to be enough to show that we're really going after him there's no reason for a federal court to take a different view from that if a different state is this a you know when we follow a complaint we don't mean anything that much by you should really wait till we get to the grand jury proceeding then you'd say the fed was really trying to write wouldn't be triggered in such a state in other words it's not delegating to the state to determine when the clock runs the same test does the state really intend to prosecute and then we just wait to hear from the state do they really intend to prosecute exactly i think there is one case they came across yesterday which i why was it in my brief more illinois supreme court case where they were looking at whether the right to counsel attaches and then look to illinois state law to determine when that happens and there are many s circuit court cases one of which is cited that do the same thing simply looking at states allowing the states have their own laws their own set of circumstances legal procedures and then the federal court using that as a basis the federal courts to define what what it what it means for a speedy trial for the right to trigger and then the state court says starting in in this discussion i thought we were starting with the premise that the reason a federal court should credit a complaint is sufficient is that the complaint is a in effect a definitive statement in that state of an intent to go forward that argument becomes more complicated when we recognize that in massachusetts the state cannot go forward to prosecute without an indictment unless he waives the and if that is going to be the standard i e if we're going to say ok we accept the state's view that there's serious when it gets to the moment of indictment then in an instance issue not they didn't he didn't they didn't decide the starting gate of the constitution allows us they decided on a massachusetts constitution but you know rights and the difference is for the massachusetts invite typically and one of the things the court points out in this case is that if we don't allow a complaint to trigger the speedy trial clock then people who are incarcerated don't get arrested instead they have warrants lodged against them argument fairly strongly remember that the courts have looked at state law to determine the sixth amendment right to counsel and there's no rights no difference there's no reason why they shouldn't look to the state's germination  this is when we look to it whether we find because it reside i think in a footnote we said of course we're not dealing with the issue of what might happen if they waived indictment and then we take the provisions of math law that allowed indictment to be waived but here that didn't happen which suggests  think the implication of it was of course if you don't waive and we take massachusetts at its word that they're only going to go forward with the prosecution seriously who's the night not maybe the mass courts think that for their speedy trial right under the state constitution it's enough to just formally accuse whether you've indicted or not but it seems that under our president as we interpret the speech throw it under federal law the question of whether you have made a formal public accusation is not enough well the supreme court and you know we have to look at the supreme court statute statements on these issues supreme court says indictment information or other formal accusation that never ever explicitly excluded a criminal complaint and then what they've indicated is that what has to happen is that this has to go from it doesn't apply to the preoccupation investigation period it applies to the accusation period and in massachusetts a person is a formal finding of probable cause for a criminal complaint and issue just like with a grand jury and the indictment is the defendant's right so if he chooses not to waive that right or if you choose to waive that right then it  seems that that shouldn't be the marker as to whether he is entitled to a speedy trial and in this case you see the damage that happens this man spent seven and a half years in jail after sending in his trial form he went to other courts and resolved all these other cases and was you know given a form by the government he sent it to another government agency that lost it and the government's just seems we've forgotten about him for all this period of time they're obviously interested in pursuing him because three days after he was released they issued another arrest warrant and then arrested in the time you have left just assume the clock starts later than you wish to start with  motions and things i never like to concede anything but i think that that makes it much tougher definitely but you know we're talking about a fundamental constitutional right we're talking about a right that's as fundamental as any other right that a man asserted when he knew we had charges against him and then he just disappeared and nobody did anything in the government to try to bring him back until he was released in massachusetts to said this starts the speedy trial clock and i believe this court has to defer to that ruling and start the clock when the criminal complaint which contrary to reasonably established to reasonably clear supreme court precedent as my brother stated during his argument this report has never held the criminal complaint triggers the sixty minutes drive lock yes tracy in this case did not hold that a criminal complaint triggered the speedy trial clock yesterday she noted that there was no clear guidance from the supreme court has a footnote with the survey of the conflict among different circuit courts of appeals in other state courts and has support in the text of the search in on itself and rather than focus on kind of the formalism of it's a criminal complaint it's this it's not the six and then it says in all criminal prosecutions if you show enjoy the right to a speedy and public trial if you look at what happened here when it came to the filing of the criminal complaint it wasn't filed by a prosecutor massachusetts law doesn't require official involvement i can be complaining witness in this case it was a police officer and rather than this being the spot where we had moved from speedy trial right in the supreme court barker explicitly rejected certain verses waiver dichotomy the petitioner is urging here and barker the supreme court instead structured courts to weigh the frequency and the force of the say yes i would and then this was to figure out oh actually that wasn't the moment you were supposed to be tried quickly you're supposed to figure out that later on is really the moment you're supposed to ask again so the form itself is strictly couch right before the attaches and here we're dealing with a search the net right and one that attaches and that's not given very much weight right now i'm thinking of the perspective of whether he did timely assert or biggers the assert his speedy trial right prejudice you're more likely to vigorously and repeatedly assert this request the more that you're feeling the pressure so there's there's two aspects to that one it preempted it predated the attachment of the right but you know i i wouldn't say that it controls here what the estrace see had held was that the fact that he had been placed on notice about it about it being a possibility initially and then did nothing with it that was basically evidence of this is you know similar to what was going on and in rashad where he may have been hoping to fly under the radar because of a possible procedural issue or some humorous i mean i guess that's what does that seem like a reasonable conclusion to make when he's basically under the official records under the impression he's not going to fly under the radar there's no radar operating i think yes you see has the latitude under under hey this review here you know whether we would decide differently on direct appeal and then third we move on to the the more sort of thorny issue of the possibility of prejudice to the defense depending on when the right to speedy trial attaches there are basically two different ways of looking at this issue the first is you know whether there's a memory failures other witnesses couldn't be found he doesn't offer any argument for what those witnesses would have testified to have they been able to be found loud hawk in the united states supreme court case and the court's decision and trevor whether the defense was was was impaired that's not the same as giving an affirmative requirement that the government prove a negative that there actually was no one parent so here we've basically the decision of dog it says there are two ways you can get around this either if the delays extenuated by the position is acquiescence and that's exactly the issue that we have here the petitioner acquiesced by in the last four year