What is the current state of the law on the waiver of the Sixth Amendment?

These cases, and those which the majority dismisses as either lacking in analysis or relying upon inapposite authority, all follow the dictate of Barker v. Wingo, supra, that all relevant factors be considered. As the Barker court explained: "We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be . relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution." (407 U.S. at p. 533, 92 S.Ct. at p. 2193, fn. omitted.)

The meaning of this language is clear. The Sixth Amendment rights of the accused cannot be summarily dismissed or deemed waived based solely on the fact that he has fled the jurisdiction. Even when the defendant has made a concerted effort to avoid prosecution, a court must give effect to the holding of Barker v. Wingo by weighing the conduct of both sides.

The language in Barker, quoted by the majority, to wit, "that 'if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine....' (Barker v. Wingo, supra, 407 U.S. 514, 529 [92 S.Ct. 2182, 33 L.Ed.2d 101])" does not undermine this conclusion. The Barker court, describing the right to speedy trial as "so slippery," (407 U.S. at p. 522, 92 S.Ct. at p. 2188) rejected a rigid approach to any analysis of whether a defendant has been denied this right. Thus the quoted language must be read in the context of the entire opinion which emphasized that the balancing approach "allows the court to exercise a judicial discretion based on the circumstances" and permits the court to attach a different weight to different circumstances. (Ibid.)