Lowe. J.,
delivered the opinion of the Court. Davidson, J., dissents and filed a dissenting opinion at page 106 infra.
John Edward Jones was tried before a jury in the Circuit Court for Calvert County, and convicted of narcotic law violations, nearly two and one-half years after his initial arrest. It would be rare, indeed, had his arguments on appeal not included an assertion that he was denied a speedy trial. Although two of his other arguments are of constitutional dimension, it is the trial delays that give us most pause.
Part of our concern lies in the relative nature of the right itself, which is consistent with delays and dependent upon circumstances. Beavers v. Haubert, 198 U. S. 77, 87. The [184]*184bulk of our difficulty was the need to reconstruct those circumstances from cold records, docket entries, pleadings, occasional correspondence and excerpts from transcripts of numerous cases all related, if not directly connected, to appellant as their focal point.1 The conclusion we have reached is that appellant was not denied a speedy trial. Despite his protestations from the beginning, the record strongly suggests that he did not want to be tried but hoped to take advantage of the delay by setting the scene to obtain his future deliverance. Cf. Barker v. Wingo, 407 U. S. 514, 535. The pattern of behavior of appellant and his counsel compel that conclusion.
I
The right to a speedy trial is guaranteed to the accused in tandem by the Maryland Declaration of Rights, King v. State, 5 Md. App. 652, and the Sixth Amendment of the Constitution of the United States, made applicable to the states through the Fourteenth Amendment, Klopfer v. North Carolina, 386 U. S. 213. In Barker v. Wingo, 407 U. S. 514, the Supreme Court prescribed the test by which to determine whether a criminal defendant has been denied this right.
Under the Barker test, the four factors we must consider from the time “the putative defendant . . . becomes an ‘accused’ . . .” United States v. Marion, 404 U. S. 307, 313, until his conviction at trial are: length of delay, reason for delay, prejudice to the accused and assertion of the right by the accused. None of these four factors is a prerequisite to the finding of the deprivation of appellant’s right to a speedy trial. Neither is any one factor a sufficient condition to find a deprivation. “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.” Barker, 407 U. S. at 533. On the other hand, while failure to assert the right will not serve as a [185]*185waiver, id. at 524, an accused may by express agreement or by his conduct waive the right to a speedy trial just as he may intentionally relinquish any other constitutional right. See Johnson v. Zerbst, 304 U. S. 458.
The Length of Delay
A delay of the length shown here of two and one-half years overall, is “presumptively prejudicial,” Barker v. Wingo, 407 U. S. at 530 and surmounts the threshold question of whether there was a delay of constitutional proportions. State v. Lawless, 13 Md. App. 220, 229. We must then apply the three remaining factors of the exegetic test prescribed in Barker v. Wingo, supra.
Assertion of the Right
The record is replete with demands for a speedy trial and motions to dismiss for lack thereof. The only evidence contradicting those express demands is of a subtle nature which will be discussed with the reasons for the delay. While we have given the assertions the “strong evidentiary weight” to which they are entitled “in determining whether [Jones] was deprived of the right,” Barker, supra, 407 U. S. at 531-532, we will discuss that weight in more appropriate context.
Prejudice
Appellant contends that three favorable witnesses, who would have been available at an earlier trial, were unavailable at his trial because two had died and one was missing. This is indeed a strong factor in appellant’s favor. “If witnesses die or disappear during a delay, the prejudice is obvious.” Barker, 407 U. S. at 532.
In Epps v. State, 275 Md. 96 at 120, while discussing “prejudice”, the Court of Appeals reflected upon testimony lost due to the delay:
“Although admittedly speculative, the testimony of [the missing witness] might have been sufficient to have generated a ‘reasonable doubt’ as to [Epps’] guilt.”
[186]*186We cannot conceive that the Court of Appeals intended to create a compelling presumption in favor of an accused who lays claim to a lost witness, that such testimony would be exonerative. For such allegation to weigh so heavily in appellant’s favor we must accept without question the unsupported allegation 1) that the testimony would have been favorable and 2) that the witnesses would have been available but for the delay.2 Even by adjusting the scale so favorably in appellant’s favor (without the ballast he failed to provide) we perceive a missing ingredient. For the witness’s absence to weigh so against the State, it is implicit that the delay must have been the fault of the State. We express our view prefatorily that none of the delay was solely attributable to the State by way of either neglectful or intentional procrastination.
In considering prejudice, we are additionally admonished by United States v. Marion, 404 U. S. at 320 to consider not only prejudice to his defense but whether the delay would:
“. . . seriously interfere with the defendant’s liberty, whether he is free on bail or not, and . . . disrupt his employment, . . . curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.”
Strunk v. United States, 412 U. S. 434, 439 recognizes that some of these factors may carry different weight where defendant is incarcerated after conviction in another jurisdiction. But even then prospects for parole and meaningful rehabilitation must be considered. While awaiting trial, appellant had been sentenced for an escape after his arrest and, by his own admission, had also been sentenced to 30 years by the federal court. There is nothing to indicate that these recently imposed sentences were subject to parole nor was it argued or alleged that parole was delayed by this case. Appellant’s own attorney [187]*187recognized this when he wrote appellant in November of 1974:
“I cannot believe that since your freedom does not at the moment hinge on the outcome of this litigation that the inconvenience of a couple of weeks is the real purpose behind your letter of October 25,1974.”
Barker also recognizes that the factors discussed in Marion are more serious for some than for others but inevitably present in all cases, because every defendant will be restricted either by incarceration or bail. Id. at 537. Here, however, as we have noted, appellant was serving other sentences and the restriction was implicit with or without the delay.
The Reasons for the Delay (The Record)
Soon after appellant was arrested on July 12, 1972 he escaped. He was returned near the end of the month by F. Lee Bailey, Esquire, the first of a procession of attorneys,3 [188]*188hired and fired at random, and was indicted on July 27,1972. Within three weeks the first of a series of local attorneys entered his appearance and the out-of-state law firm to whom appellant had surrendered himself wrote the State’s Attorney requesting an extension on the deadlines for pre-trial motions set for the middle of the following month. Since appellant’s motions for discovery, to suppress evidence, to disqualify the judge and for a jury trial were not filed until December 1,1972, we assume the State acquiesced in that extension. Along with these motions appellant included a demand for speedy trial.
The State elected to proceed first on the escape charge. The case was decided (presumably on plea) in January of 1973. In the meantime, a motion was filed for change of venue. This motion is significant only in its characterization by the State as a delaying tactic “contrary to the express written agreement of the parties that the case would proceed on or after January 8th, without further delay. The Escape case is now set for January 9, 1973. The State vigorously opposes any delay.”
1973 having thus begun with appellant’s trial for escape, there followed closely the filing of several motions by appellant, the striking of appearance by one of appellant’s lawyers and the entry of appearance of another. During the next two months of the year, the only apparent activity which followed the trial for escape seems to have been a hearing in open court on appellant’s motion to suppress evidence, which was overruled on April 9, 1973.
The trial was set for June 25, 1973. However, on May 25, 1973, presumably because of the confusion surrounding the many lawyers representing appellant,4 a hearing was held.
“THE COURT: Mr. Jones, stand up. The reason for bringing you to court today is to find out who is your lawyer. You change lawyers faster than I [189]*189change hats, and I want to know who is your attorney that represents you in this case? ”
Ironically, appellant indicated that his only attorney in the case was Stephen Miles who had been permitted to strike his appearance after petition and an order signed January 18, 1973. Appellant renounced all other counsel, several of whom were present and moved to be permitted to withdraw. Nothing in the record shows that any counsel not then present were so authorized. It later becomes clear that several stayed on.
For reasons not completely clear from the record, but presumably because the State deferred to the federal courts, the June 25, 1973 trial date was not honored in spite of a hearing judge’s observation that the State trial had precedence. We do know from appellant’s own testimony that the federal case against him continued for six weeks during the summer of ’73, bringing us toward the end of summer.
As fall approached, Stephen Miles, who had participated in the defense of appellant in the federal courts, again struck his appearance. This time the record provides a glimmer of light on the “circumstances” surrounding that episode which clearly contributed to the succeeding delay. From the pleadings and exhibits submitted by appellant, it is clear that two of appellant’s counsel became personally embroiled in accusations of attempting to bribe an assistant State’s Attorney relating to their defense of appellant, for which they were subsequently indicted and tried. Miles was indicted in July of 1973 and tried in March of 1974.5 6 Frank was tried in February of 1973. Miles’ motion to strike his appearance on September 9, 1973 recites indicia of animosity between him and his co-counsel Frank arising from accusations and counter-accusations of the bribe attempts [190]*190stemming from their representation of Jones.6 Miles’ appearance was struck. Frank and others stayed on.
In November of 1973 Frank again moved for a speedy trial for Jones; however, there is an indication even here that appellant did not desire that which he formally prayed. In acknowledging a trial date set for February 26, 1974, Mr. Frank included a statement that he did not waive his speedy trial motion of November 11, 1973. A letter from the State’s Attorney to Mr. Frank clearly indicated that the State was given informal assurances that the speedy trial issue would not be pressed, notwithstanding the procedural prods of renewed motions and written expressions of non-waiver for the record. The letter dated January 9, 1974, a copy of which went to the court, said in part:
“I note with some chagrin your reference in your January 7th letter that you do not waive any speedy trial motion that was filed on behalf of Mr. Jones. My recollection of various conversations with you in the Court House in Baltimore County was that you were not necessarily concerned with the trial of the Jones case but only in plea negotiations. In fact, at one time you indicated that you would be more than happy to accept a stet in the case of Mr. Jones providing the State would return the money seized from him at the time of his arrest. Of course, you will remember at that time I told you to give an appropriate four letter word greeting to Mr. Jones in response to that demand.
At other times during these conversations, your only request was that in any trial that the State Nol Pros the proceeding against Mr. Strickland so that you would not have a potential conflict of interest with your representation of Messrs. Jones and Strickland. In view of possible motions that [191]*191may be filed and in view of confusion concerning the representation of the defendants in this case, I am requesting Judge Proctor to set a pre-trial hearing date before the Court at which time all pre-trial motions would have to be filed and a final determination of representation by counsel be made.”
While not conclusive of defense procrastination, that letter first gave voice to what appears implicit throughout the record. Although appellant’s continued demands for speedy trial clearly preserve the issue, and are entitled to strong evidentiary weight, Barker, supra, 407 U. S. at 527, as with any evidence the weight given it “ . . . must be considered together with such other circumstances as may be relevant.” Barker, supra, 407 U. S. at 533.
An additional delay was explained by Judge Kenneth C. Proctor in a letter to counsel explaining the necessity for postponing the February 26,1974 trial date. The letter said:
“Sometime ago I scheduled the above captioned case for trial commencing on February 26, 1974, at that time anticipating that there would be no problem in making a Judge available for the trial of this case.
However, with the trials of cases resulting from the investigation of the State’s Attorney’s Office, it has been necessary for us to send a Judge into Baltimore City, in exchange for the Judge from the Supreme Bench who must come out to Baltimore County, to preside at the trial of such cases. This, of course, leaves us shorthanded for the trial of cases in the regular assignment. In addition to this, at the time you made your request, Judge Walter R. Haile, who is handling the Criminal Jury assignment this term, had already scheduled cases to the end of March, so that I could not assign him to the trial of the above captioned case.
For these reasons the above captioned case will have to be removed from the trial assignment for [192]*192February 26 and rescheduled for sometime during the April Term of Court.”
The “investigation of the State’s Attorney’s Office” is a reference to a gubernatorial directive proclaimed on November 13, 1972, Irvin v. State, 23 Md. App. 457, 458-59, constitutionally authorizing the Attorney General
“ ... to investigate the allegations of corruption of public officials in connection with the arrest, pending prosecution and escape of one John Edward Jones, from the Baltimore County jail, and to pursue any evidence of criminal violations or administrative irregularities resulting from your investigation.” Green v. State, 25 Md. App. 679, 704.
The very sketchy and discordant record (partially attributable to the refusal of the trial judge to hear evidence proffered by the State and appellant’s response) does not disclose the extent nor the dates of this investigation. We know of Miles’ indictment in July of 1973, and we know of Frank’s disbarment effective November 7, 1974 for having admitted payment of $3,000 on September 21 or 22, 1972, to Deputy State’s Attorney Stuart Hirsch in order to influence unlawfully the outcome of a case which may or may not have been that pending against appellant and his co-defendants.7 Maryland St. Bar Ass’n v. Frank, 272 Md. 528. Notwithstanding the failure of the State to provide us with a record clearly setting out these dates and events, we cannot close our eyes to that which is recorded for posterity in our own opinions and in those of the Court of Appeals.8
On December 4, 1974, appellant was finally brought to trial in the Circuit Court for Baltimore County. However, a motion for change of venue was filed by appellant and granted on December 5, 1974. The trial was transferred to [193]*193the Circuit Court for Calvert County to commence on December 11, 1974.
On the day of trial in Calvert County, appellant made every effort to keep it from being tried, including another attempt to fire counsel and hire another. He asserted flat out that he was not prepared to proceed and offered every conceivable reason for further delay. He even had the audacity to ask for time to “think of something else.”
“THE DEFENDANT: First of all, your Honor, I ain’t prepared to go to trial for this ca.se. I’ve been putting in for a speedy trial for two and a half years and I didn’t even know I was coming to Court today, the trial was coming to Court today and I ain’t seen F. Lee Bailey for two and a half years. He ain’t investigating the case properly. I’ve got three hundred and some witnesses I’d like to call in this case. I don’t know what the State’s Attorney talking about he’s going to rush this case in three days. He’s going to railroad me. He’s going to railroad me right. He railroaded me once in Federal Court on the same charge and I got thirty years for it, so if you’re going to railroad me in three days, just railroad me in three days. I’ve got three hundred and some witnesses to call. If he can call the Police here to testify against lies, I can call witnesses to counteract the Police to testify against me, my witnesses. My witnesses are all over the United States. I ain’t even got Subpoenaes or nothing to call them. It might take three days to get one of them here.
JUDGE BOWEN: Anything else you’ve got to say?
THE DEFENDANT: Yes, sir. I ain’t prepared to go to trial and I’d like to call my witnesses on open Court motion before the trial starts.
JUDGE BOWEN: Anything else?
THE DEFENDANT: I’d like to have a recess so I can think of something else and read my file.”
[194]*194With two of his lawyers by his side, appellant initially chose to conduct his own defense, complaining that he no longer wanted to be represented by the counsel present, F. Lee Bailey and William Carrier, but had only recently decided to hire another, “Jeff Hoffman.” Appellant’s continued protests and interruptions became so disruptive that the judge, after repeated warnings, had him first shackled and gagged, then manacled, and finally removed from the courtroom only to be permitted to return when he agreed to conduct himself decorously. At every opportunity, however, he repeated that he was not prepared for trial.
“Q All right. Do you have anything else you want to tell the Judge about the Speedy Trial Matter?
A Not other than I just been trying to come to Court for this two and a half years and every time they postpone it, it is the State’s fault. And then they rush me today and I wasn’t prepared to come to trial.”
The Reason for the Delay (Conclusions)
As is obvious from the facts as briefly outlined, the delay in bringing Jones to trial can be laid to both the State and to the defense, notwithstanding the appearance that “This period of delay resulted solely from the prosecutor’s tactical decision . . . and the passive cooperation of the court with no heed being paid to [Jones’] unequivocal request. . . .” See Epps, supra, 276 Md. 96. The root cause of the delay here, however, was not solely “governmental action.” Although nearly all postponements were initiated by the State 9 (which [195]*195includes court action, see Epps, supra, 276 Md. 96) that naked fact overlooks the underlying cause of the delay, and is otherwise counterbalanced by expressed efforts of both prosecutor and court, to bring the case to trial. Delays caused by other trials of appellant and of appellant’s attorneys cannot be weighed against the State especially when the priority given is so obviously to effect justice rather than to obtain a prejudicial advantage. We are bound by the Court of Appeal’s holding that overcrowded courts, and inferentially court congestion, is not a neutral reason for excusing a delay. Epps, supra, 276 Md. 96. But when that congestion is traced back to the defendant’s doorstep, the confusion of clearing out the corruption brought to light by actions of his own lawyers is a far cry from the “tactical decision” of the prosecutor in Epps, “to try the defendants jointly.”
A substantial part of the delay related to the indictments and trials of appellant’s attorneys and the State’s Attorneys, part was occasioned by other trials of appellant, and part was at the behest of appellant’s counsel. All of these were in large measure beneficial safeguards helping to assure appellant of obtaining a fair trial. The reason for the investigation of the prosecutors, as well as his own counsel, regardless of its unrelated result, provided a degree of assurance that he would be fairly tried and fairly represented. Whether or not that is what appellant wanted, it is that only to which he was entitled. Tipton v. Warden, Maryland House of Correction, 28 Md. App. 206. The speed of coming to trial varies with the circumstances of each case.
“However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, this Court has consistently been of the view that ‘The right of a speedy trial is necessarily relative. It is consistent with delays and [196]*196depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.’ Beavers v. Haubert, 198 U. S. 77, 87, 49 L.Ed. 950, 954, 25 S. Ct. 573. ‘Whether delay in completing a prosecution . .. amounts to an unconstitutional deprivation of rights depends upon the circumstances... . The delay must not be purposeful or oppressive,’ Pollard v. United States, 352 U. S. 354, 361, 1 L.Ed.2d 393, 399, 77 S. Ct. 481. ‘[T]he essential ingredient is orderly expedition and not mere speed.’ Smith v. United States, 360 U. S. 1, 10, 3 L.Ed.2d 1041, 1048, 79 S. Ct. 991.” United States v. Ewell, 383 U. S. 116, 120.
That appellant was at the vortex of this unique corruption investigation is a circumstance peculiar to this case. Faced with the unprecedented gubernatorially mandated corruption investigation of both prosecutors and defenders of the accused, the State had two alternatives. It could press for Jones’ trial in spite of the investigation and indictments so closely related to it and thus provide Jones with the speed to which he claims entitlement; or, it could chance delay and ferret out the truth, assuring Jones as well as society that whatever the result of the trial, it was not conducted under a cloud of corruption. Jones was entitled to a fair trial and a speedy one. It was clear that the State could not assure him of both. Between “these nice sharp quillets of the law,” the State sacrificed speed for certainty of fairness, an assurance that enured to the benefit of appellant. We can more readily assess responsibility for the period of delay between the bribe in September of 1972 and the disbarment of Frank in November, 1974, against Jones than we can charge it against the State. Of the two, the State’s motives seem less impugnable. At worst we find the circumstances a “neutral” one.
We could hardly be expected to hold the State solely accountable for that portion of the delay attributable to the investigation and peripheral confusion. The proportion of fault attributable to society’s attorney as cause for the delay is no greater than, if as great as, that attributable to [197]*197appellant’s attorneys. As persistent as Messrs. Frank and Miles were in their demands that Jones be tried speedily, it was their conduct which brought on the delaying investigation, albeit, it was “ordered” by the State (governor). Jones, however, would “hold with the hare and run with the hound.” He clutches to their assertions of the speedy trial on his behalf, but denies responsibility for their contribution to the cause of delay.
On April 5, 1973 F. Lee Bailey’s office wrote the court indicating that the “defense does not demand an immediate trial until such time as the court is notified to the contrary.” 10 The following month Jones represented to the court that he was going to fire all lawyers except Miles. Evidence from later correspondence of Bailey appear to support that result both by his letter of October 14, 1974 and Alch’s telegram on June 26 which purported to “enter” Bailey’s appearance. However, neither Bailey nor Alch ever struck their appearance first entered in the summer of 1972. They neither sought leave to withdraw nor did the court provide such leave pursuant to Md. Rule 751. Although Bailey and Jones were apparently at odds, it was Bailey who was ultimately present to represent Jones at his trial and still on this appeal. It was also he who once again requested a postponement when the June 26, 1974 trial date aborted and was to be reset for November 18, 1974. This was performed by Mr. Alch of Bailey’s office who concluded the telegram requesting postponement with the sentence that “Jones has agreed to waive his right to a speedy trial.” 11
Interspersed throughout the entire period before and after these apparent waivers were sent, are demands for speedy trial by other lawyers who came and went before the final trial date, and by Jones himself; however, the record [198]*198continued to reflect Bailey’s continued appearance and the standing waiver “until notified to the contrary.” Bailey’s renewed waiver in June (through Alch’s telegram) interpretatively supports the appearance of a continuing waiver by counsel of record. Whether or not this pattern of conduct was “manipulated by Jones we know not. It is apparent that he has sought the advantage of it through the very lawyer who sang the Siren’s song, luring the State to founder upon the rocks of delay. If the positions represented by Bailey’s office were not waivers, they were representations of record which together with the other “circumstances” substantially remove from the State some of the onus of delay.
There is also evidence in the record that a portion of the delay was caused by plea negotiations engaged in by Jones, his attorneys, and the prosecutors. The “circumstance” surrounding the January 9, 1974 correspondence above quoted was clearly that some plea bargaining was being carried on at least up to that time. This is supported subsequently by a motion filed charging a violation of a plea bargain. Although we are told that overcrowded courts “may not be a ‘neutral’ reason for delay,” clearly plea negotiations are attempted not only by the State for the benefit of society, but by the accused for his own purposes as well.
Neither plea negotiations, the representations of counsel of record, confusion by repeated hiring and firing of counsel, the corruption investigation, related trials in other courts, nor the resolution of the procedural motions, as a single factor, even when carried on over a prolonged period, may condone an excessive delay in coming to trial. Two and one-half years has the appearance of prejudice even where an accused must be dragged to trial kicking and screaming as was Mr. Jones. Yet where such delay may not be readily forgiven, circumstances (which alter every case) may permit that it be excused.
The Barker Result
In Barker, supra, 407 U. S. at 535, the Supreme Court concluded upon review that “Barker did not want a speedy [199]*199trial,” and it declined to reverse his conviction in spite of a five year delay. The Court surmised that:
“The probable reasoyi for Barker’s attitude was that he was gambling on Manning’s [a co-defendant] acquittal. The evidence was not very strong against Manning, as the reversals and hung juries suggest, and Barker undoubtedly thought that if Manning were acquitted, he would never be tried.” (Emphasis added).
The Court does not spell out to us the reasons for their conclusion. The opinion merely tells us that:
“ . . . the record strongly suggests that while he hoped to take advantage of the delay in which he had acquiesced, and thereby obtain a dismissal of the charges, he definitely did not want to be tried.” (Emphasis added). Id. at 535.
The record here also “strongly suggests that [Jones] hoped to take advantage of the delay” to which his actions and the actions of his lawyers had contributed (if not caused; and thereby obtain a dismissal of the charges. It further not only “strongly suggests” but rings out the message that Jones did not want to be tried. Our suspicion is raised not only by Jones’ apparent manipulation of the legal counsel representing him, nor by his involvement in pending negotiations, but also by his own proclamation when he eventually came to trial that he was not yet ready for it even then.
In May of 1974 Jones filed motion upon preliminary motion, some new and some seemingly repetitious, all of which required considerable time to respond properly or hear. Among these were motions for dismissal (for lack of speedy trial among other grounds), particulars, exculpatory evidence, inspection of grand jury minutes, severance (which was granted), etc. The content of some of the motions, such as the ones related to discovery, indicate preliminary preparations and negotiations being attempted by the defense which simply are not in concert with his persistent [200]*200formal demands for speedy trial.12 But even more compelling is the correspondence from out-of-state counsel expressly negating demands for speedy trial. The delays attributable to Mr. Bailey’s office request were concededly recognized, if not condoned by appellant in November of 1974. The intermittent hearings on the plethora of motions filed by his attorneys from time to time were also “procedural safeguards provided an accused.” Ewell, supra, 383 U. S. at 120. Appellant’s many legal gladiators obviously differing in the use of the constitutional right to speedy trial used it alternately first as a sword then as a shield. “Delay is not an uncommon defense tactic” Barker, 407 U. S. at 521, and appellant used it to the very end when, after an aborted trial December 4, 1974, he continued his avalanche of motions including a motion for psychiatric evaluation and a successful effort to have the case removed to its final situs in Calvert County.
As to the State, we found not one scintilla of evidence that the delay was intentionally “purposeful or oppressive,” Pollard, v. United States, 352 U. S. 354, 361, nor even that it was negligent which is “[a] more neutral reason. . . .” Barker, supra, 407 U. S. at 531. The record shows continued activity; the delays were at varying stages acquiesced in and contributed to by appellant.
Upon most appeals a reversal means a remand for a new trial, but
“[t]he amorphous quality of the right [to a speedy trial] . .. leads to the unsatisfactorily severe remedy of dismissal of the indictment when the [201]*201right has been deprived.” Barker, supra, 407 U. S. at 522.
When the nature of the remedy so enhances the potential danger to society, we must be especially careful not to permit legal fictions to obscure our common sense. If we close our eyes to what is there because by its nature it is difficult to discern or to articulate — or because it was not transcribed in a simple record for easy review — the only alternative is the serious consequence of a criminal fairly convicted on abundant evidence that will be freed with a recidivistic potential made more likely because he “beat” the charge.
The lingering question we must answer in the face of appellant’s repeated demands is, whether the State discharged its “constitutional duty to make a diligent, good-faith effort to bring him . . . [to] trial”? Smith v. Hooey, 393 U. S. 374, 383. Our unequivocal answer is yes.
II
Appellant next contends that the court erred in denying his motion to dismiss on the basis of collateral estoppel. The short answer here (contrasting our prolonged speedy trial analysis) is simply that the record does not provide us with evidence that the issue litigated in the federal court is the same as that here determined. Appellant’s prosecution below was for acts committed on July 11 and 12 of 1972. He asserts in his brief reliance upon an acquittal in the summer of 1973 for a similar offense “on or about July 31, 1972.” Since both charges had at their base possession of narcotics on dates over three weeks apart, we fail to see the logical application of the double jeopardy offshoot — collateral estoppel.
Ill
Appellant’s third assignment of error is meritorious. A conviction of simple possession of heroin charged in count 2 merged with the conviction of possession of a sufficient quantity reasonably to indicate an intent to distribute in [202]*202count 1. We will, therefore, vacate the verdict and sentence of the lesser charge, Gray v. State, 10 Md. App. 478, which sentence was concurrent in any event.
IV
Appellant’s initial requests for instructions were not in the record. His description of the request denied, of which denial he complains, is included by way of objection following the instruction:
“Mr. Bailey: May it please the Court, may the record show that prior to the giving the charge to the jury I presented a number of instructions, all was given save one and that one was that the instructions of the Court are the sole and exclusive source of the law and the jury may find the law from no other source than the instructions of the Court and that they are absolutely obligated to follow those instructions, particularly those of constitutional dimension; the most important of which in all the circumstances of this trial is the impermissible nature of drawing an inference from the silence of the Defendant; a right upon which the Court has spoken very clearly.”
It is manifest in the request so described that appellant objected to the court’s instruction pursuant to our unique State Constitutional procedure in Section 5 of Art. XV which reads:
“In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.”
Unquestionably the judge understood that to be the case:
“JUDGE BOWEN: For the purposes of the record, what Mr. Bailey says about the instruction which he requested; that is, that the law as the Court gives it is binding and mandatory upon the [203]*203jury and may not find it otherwise is correct. Mr. Bailey and counsel for the State discussed this matter at length when the instructions were discussed. He requested in the instructions that this be given. The Court indicated at that time we would not give the instruction but would give him an exception at the conclusion of the charge, both to the Court’s refusal to give it in the original instructions and to now refuse to go back and now give it as an amended instruction.
The Court understood precisely the material which Mr. Bailey requested and we think that the exception should and is intended to preserve for all appropriate appellant review the issue of whether or not such instruction would violate the Defendant’s right of the United States’ Court [Constitution].”
It thus becomes clear that the instruction to which exception is taken is that portion saying:
“Now you are advised that this does not mean that you are free to make law or change the law or to find it as you think it was yesterday or will be tomorrow or ought to be today. Your responsibility to the best of your ability is to determine what the law at the present time is insofar as it pertains to the matters before you in this case and you apply that law, as you find it to be, to the facts as you find them to be. Therefore, everything the Court says to you in these remarks is advice only. You are not obliged to follow it and counsel should they wish to do so, will be permitted to argue to you that the law is other than as the Court advises you it is.
Parenthetically we note, then, that it was clearly understood that the question sought to be preserved and presented to us is that expressed by appellant in his brief, i.e.:
“Whether the Maryland Constitution establishing [204]*204the jury in a criminal case as judge of law as well as fact and the judge’s charge to that effect is violative to federal constitutional due process requirements binding upon the states.”
The pains to which we have gone in setting out the question serve a twofold purpose. First we accept head-on appellant’s renewed attack on Section 5 of Art. XV. Secondly, we make it quite clear that appellant did not ask that the jury be-instructed that its role as judges of the law carried with it no right to pass on constitutional matters, cf. Hitchcock v. State, 213 Md. 273, or to withhold constitutional safeguards. See Md. Rule 756 f and g. It is because appellant’s argument necessarily presupposes that the jurors rejected the constitutional safeguards of which they were advised, that we have pinpointed his attack as a frontal one against the jury’s role under the Maryland Constitution and not a peripheral one asking for instructions of one or more of the limitations upon that role as set out by the Court of Appeals in Giles v. State, 229 Md. 370, 382-386. Appellant made no such request below, nor does he indicate any interest upon appeal as to what extent, if any, such qualifying instructions should be granted upon request.
His argument is a most beguiling one but hardly convincing. He contends that the instruction given the jurors under Md. Constitution, Art. XV, Sec. 5 is a denial of due process. He notes especially that one charged with so heinous a crime as heroin distribution, and who comports himself so reprehensibly in the courtroom as to require his being bound, gagged and finally removed, can hardly expect a juror to cloak him with the presumption of innocence when he is told by the judge that the instruction to that effect is advisory only. Such juror is expressly told, goes the argument, that he is the sole judge of the law, therefore, he is free not only to disregard the presumption of innocence but also to lessen the State’s burden of proof from beyond a reasonable doubt to a level of hardly requiring any doubt at all.
Appellant now argues that the “trend” of the Supreme [205]*205Court decisions is firmly fixed in protecting the presumption of innocence by strictly holding the State to its burden of proof beyond a reasonable doubt throughout the trial. E.g., Mullaney v. Wilbur, 421 U. S. 684, 44 L.Ed.2d 508.
Regardless what our personal opinion of Art. XV, Sec. 5 may be, we are not the forum for change. Constitutional change in Maryland must be initiated by the Legislature and consummated by the people. Beyond that, in this State the Court of Appeals is the final word on constitutional validity, and that which it speaks binds us to the result. The Court of Appeals has repeatedly spoken on this subject. The Supreme Court has itself recognized this unique, if not archaic, practice and by such express recognition approved it sub silentio. The history of court review of this provision was reviewed in an alembic for this Court by Judge Scanlan in Wilkens v. State, 16 Md. App. 587, 604-605:
“The constitutionality of Article XV, Section 5 has been repeatedly upheld by the Court of Appeals and by this Court. Slansky v. State, 192 Md. 94, 63 A. 2d 599 (1949); Giles v. State, 229 Md. 370, 183 A. 2d 359 (1962); Avey v. State, 1 Md. App. 178, 228 A. 2d 614 (1967); Lewis v. State, 2 Md. App. 678, 237 A. 2d 73 (1968); Avey v. State, 9 Md. App. 227, 263 A. 2d 609 (1970). Moreover, the Supreme Court of the United States has had occasion to consider Article XV, Section 5, but has failed to intimate doubts about the constitutionality of the provision. In Giles v. Maryland, 372 U. S. 767 (1963), the Supreme Court dismissed an appeal which raised this issue, along with others, for want of a substantial federal question. See also Brady v. Maryland, 373 U. S. 83 (1963), in which the court discussed Article XV, Section 5 without questioning its constitutionality.
The whole question was carefully addressed by the Fourth Circuit, speaking through Judge Sobeloff, in Wyley v. Warden, 372 F. 2d 742, 744 (4th Cir. 1967). In that case, the Fourth Circuit [206]*206rejected Wyley’s challenge to Article XV, Section 5, based upon a claim that the provision denied him due process and equal protection of the law in violation of the Fourteenth Amendment.”
The opinions of those two Courts of finality as we expressed them, have not changed. As recently as 1974 both Courts declined to review that question when it denied certiorari in Bremer v. State, 18 Md. App. 291, 349-350, cert. den. 269 Md. 755, cert. den. 415 U. S. 930.
Judgment affirmed except conviction and sentence under count
2 vacated as merging with the conviction under count 1.
Costs to be paid by the appellant.