 1       IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 2 Opinion Number:

 3 Filing Date: October 23, 2017

 4 NO. S-1-SC-34630

 5 STATE OF NEW MEXICO,

 6        Plaintiff-Petitioner,

 7 v.

 8 JOHN ERIC OCHOA,

 9        Defendant-Respondent.

10 ORIGINAL PROCEEDING ON CERTIORARI
11 Stephen Bridgforth, District Judge


12 Hector H. Balderas, Attorney General
13 Sri Mullis, Assistant Attorney General
14 Santa Fe, NM

15 for Petitioner


16 Bennett J. Baur, Chief Public Defender
17 Nina Lalevic, Assistant Appellate Defender
18 Santa Fe, NM

19 for Respondent
 1                                         OPINION

 2 VIGIL, Justice.

 3   {1}   The right to a speedy trial is guaranteed by the Sixth Amendment to the United

 4 States Constitution and Article II, Section 14 of the New Mexico Constitution.

 5 Defendant was arrested on May 12, 2008, and charged with a number of offenses

 6 relating to criminal sexual contact of a minor. Prior to a mistrial on March 8, 2010,

 7 trial was delayed for a number of reasons including a furlough affecting the New

 8 Mexico Public Defender Department (Public Defender Department). Two months

 9 later, on May 17-20, 2010, Defendant was convicted of one count of interference with

10 communications and two counts of criminal sexual contact of a minor. Defendant was

11 incarcerated for the entire pretrial period.

12   {2}   Defendant appealed his convictions and the Court of Appeals reversed on

13 speedy trial grounds. State v. Ochoa, 2014-NMCA-065, ¶¶ 1, 25-26, 327 P.3d 1102.

14 The Court of Appeals determined that Defendant was prejudiced by his two-year

15 pretrial incarceration, reasoning that “[t]his Court previously concluded that a delay

16 of twenty-two months prejudiced a defendant. Here, Defendant was incarcerated even

17 longer.” Id. ¶ 23 (citation omitted).

18   {3}   We granted certiorari and reverse, applying the four-factor balancing test from

19 Barker v. Wingo, 407 U.S. 514, 530 (1972). We conclude that neither the length of
 1 delay, reason for delay, nor assertion of the right to a speedy trial weigh heavily in

 2 Defendant’s favor. We presume that Defendant suffered some prejudice as a result

 3 of his continuous pretrial incarceration, but our presumption does not outweigh the

 4 other three factors. See State v. Garza, 2009-NMSC-038, ¶ 1, 212 P.3d 387 (holding

 5 that a defendant must generally show particularized prejudice). Thus, despite the

 6 obvious prejudice to Defendant, his right to a speedy trial was not violated.

 7 I.      BACKGROUND

 8 A.      The Right to a Speedy Trial

 9   {4}   In examining whether a defendant has been deprived of his constitutional right

10 to a speedy trial, we use the four-factor test set forth in Barker, balancing the length

11 of delay, the reason for delay, the defendant’s assertion of the right to a speedy trial,

12 and the prejudice to the defendant. See 407 U.S. at 530. We defer to the district

13 court’s factual findings in considering a speedy trial claim, but weigh each factor de

14 novo. State v. Spearman, 2012-NMSC-023, ¶ 19, 283 P.3d 272.

15   {5}   The speedy trial analysis is not a rigid or mechanical exercise, but rather “a

16 difficult and sensitive balancing process.” See Barker, 407 U.S. at 533. The speedy

17 trial right is “amorphous, slippery, and necessarily relative.” Vermont v. Brillon, 556

18 U.S. 81, 89 (2009) (internal quotation marks and citations omitted). We consider the


                                               2
 1 factors on a case-by-case basis. See Barker, 407 U.S. at 533; see also Garza, 2009-

 2 NMSC-038, ¶ 13 (stating that Barker “necessarily compels courts to approach speedy

 3 trial cases on an ad hoc basis”).

 4 B.      Timeline

 5   {6}   We begin by setting forth the facts and circumstances surrounding the delays

 6 in bringing Defendant to trial and the role of each party in the delays. Barker, 407

 7 U.S. at 530 (“The approach we accept is a balancing test, in which the conduct of

 8 both the prosecution and the defendant are weighed.”). Defendant was arrested on

 9 May 12, 2008 and tried just over two years later, on May 17-20, 2010. Defendant was

10 incarcerated for this entire period.

11   {7}   Trial was reset on multiple occasions. The first, November 10, 2008, was

12 vacated because November 11, 2008 was a holiday and the trial required a multi-day

13 setting. The second, December 17, 2008, was vacated when Defendant requested a

14 continuance to review evidence acquired in delayed witness interviews. The third,

15 March 4, 2009, was vacated due to a pending motion.1 The fourth, May 26, 2009, was


           1
16           Although the district court did not explain why this setting was vacated, the
17   State asserted that it was vacated due to a “pending motion yet to be heard,” most
18   likely referring to Defendant’s motion to sever, demand for discovery, motion to
19   dismiss the indictment, or motion to compel disclosure filed between November 21,
20   2008 and December 5, 2008. Defendant also filed a motion for an evidentiary hearing

                                              3
 1 vacated because it was incorrectly set for one day. The fifth, October 27, 2009, was

 2 unexpectedly continued when the judge’s sister passed away.

 3   {8}   Defendant moved to continue the sixth trial setting, January 13, 2010, because

 4 Governor Richardson ordered state employees to cease work for five days, including

 5 the third day of trial. The furlough reduced the budget of the Public Defender

 6 Department due to a budget shortfall for fiscal year 2010. Despite the furlough, this

 7 Court ordered public defenders to appear for regularly scheduled court appearances.

 8 The district court granted the continuance to ensure that defense counsel had adequate

 9 support staff to prepare a defense. Trial finally began on the seventh setting, March

10 8, 2010. However, the district court granted a mistrial because a juror made an

11 inflammatory comment.

12   {9}   Over the course of the proceedings, the State filed three petitions to extend the

13 time to commence trial. See Rule 5-604(B) NMRA (2008) (“For good cause shown,

14 the time for commencement of trial may be extended by the district court . . . [by] six

15 (6) months.”). Defendant opposed two out of three of the State’s petitions, but did not


16   and forensic evaluation to determine witness competency on January 20, 2009. The
17   State filed two requests to extend the time to respond to those motions, which were
18   both granted. The district court held a hearing on Defendant’s motions on February
19   2, 2009, but did not issue orders until March 5, 2009, May 5, 2009, October 26, 2009,
20   and November 9, 2009.

                                               4
 1 file substantive responses to any of them. Each of the petitions was granted.

 2   {10}   Defendant filed five demands for a speedy trial and four motions to dismiss

 3 based on violation of the right.2 In its ruling on the first motion to dismiss, the district

 4 court found the case to be complex and that the length of pretrial delay was less than

 5 the eighteen months required to trigger the speedy trial analysis under Garza. See

 6 2009-NMSC-038, ¶ 2 (establishing the guideline as eighteen months for complex

 7 cases). In each motion to dismiss, Defendant stated that the length of pretrial

 8 incarceration was presumptively prejudicial, he had suffered undue anxiety and

 9 concern, and his defense was impaired by fading witness memories. Defendant did

10 not present evidence to support his prejudice claims, but instead asserted that the

11 State bore the burden of proving the absence of prejudice, citing Salandre v. State,

12 1991-NMSC-016, ¶¶ 25-28, 111 N.M. 422, 806 P.2d 562, holding modified by Garza,

13 2009-NMSC-038, ¶ 22.

14   {11}   Defendant was finally tried on May 17-20, 2010, after two years of pretrial

15 incarceration. On May 20, 2010, a jury convicted Defendant of two counts of criminal


            2
16           Defendant filed the first of five demands for a speedy trial on January 28,
17   2009, followed by demands on June 22, 2009, September 9, 2009, September 17,
18   2009, and November 23, 2009. Defendant filed his first motion to dismiss for
19   violation of the right to a speedy trial on September 15, 2009, followed by motions
20   on December 28, 2009, February 11, 2010, and April 20, 2010.

                                                5
 1 sexual contact of a minor and one count of interference with communications.

 2 Defendant appealed, and the Court of Appeals reversed, holding that Defendant’s

 3 right to a speedy trial was violated. Ochoa, 2014-NMCA-065, ¶ 1. We granted

 4 certiorari on two issues:

 5                 1) Whether the Court of Appeals erred in holding that [the State
 6          denied Defendant] his constitutional right to a speedy trial when the
 7          length and reasons for the delay did not weigh heavily against [the
 8          State].

 9                2) Whether the Court of Appeals erred in creating a bright-line
10          rule that pre-trial incarceration over twenty-two months is unduly
11          prejudicial even when [Defendant] failed to make a particularized
12          showing of prejudice.

13 Applying the fluid, ad hoc approach of Barker to the facts of the instant case, we

14 agree with the Court of Appeals that Defendant was prejudiced by his pretrial

15 incarceration. However, neither the length nor reason for delay weighs heavily against

16 the State. Therefore, we conclude that Defendant’s right to a speedy trial was not

17 violated.

18 II.      DISCUSSION

19 A.       Length of Delay

20   {12}   The first factor, length of delay, is both the threshold question in the speedy

21 trial analysis and a factor to be weighed with the other three Barker factors. State v.


                                               6
 1 Serros, 2016-NMSC-008, ¶ 22, 366 P.3d 1121. The Barker Court deferred to the

 2 states to prescribe reasonable guidelines for bringing a case to trial. 407 U.S. at 523.

 3 This Court prescribed such guidelines in Garza. See 2009-NMSC-038, ¶ 2. The

 4 applicable guideline is dependent upon the complexity of the case: twelve months for

 5 a simple case, fifteen months for an intermediate case, and eighteen months for a

 6 complex case. Id.

 7   {13}   Consistent with Barker, this Court in Garza emphasized that the guidelines are

 8 not bright-line tests. See Barker, 407 U.S. at 523 (“We find no constitutional basis for

 9 holding that the speedy trial right can be quantified into a specified number of days

10 or months.”); see also Garza, 2009-NMSC-038, ¶ 49 (explaining that the guidelines

11 are not bright-line tests). The guidelines are designed to prompt the district court to

12 conduct a speedy trial analysis, and do not dispose of the claim itself. Id. ¶ 2. As

13 explained in Garza, it would be contrary to the flexible, fact-specific nature of the

14 Barker approach to presume that there was a violation of the right based on the length

15 of delay alone. See Garza, 2009-NMSC-038, ¶ 13. The Barker Court “specifically

16 reject[ed] inflexible, bright-line approaches to analyzing a speedy trial claim.” Garza,

17 2009-NMSC-038, ¶ 13 (citing Barker, 407 U.S. at 529-30).

18   {14}   When the length of delay exceeds a guideline, it must be weighed as one factor


                                               7
 1 in determining whether there has been a violation of the right to a speedy trial, Serros,

 2 2016-NMSC-008, ¶ 22, and the burden of persuasion rests on the State to demonstrate

 3 that, on balance, there was no violation of the right to a speedy trial. Garza, 2009-

 4 NMSC-038, ¶ 22. As the delay lengthens, it weighs increasingly in favor of the

 5 accused. Id. ¶ 24. In other words, a delay barely crossing the guideline “is of little

 6 help” to the defendant’s claim, while a delay of extraordinary length weighs heavily

 7 in favor of the defendant. Serros, 2016-NMSC-008, ¶ 26.

 8   {15}   We defer to the district court’s finding of complexity,3 which was supported

 9 by the number of charges and nature of the allegations. See State v. Manzanares,

10 1996-NMSC-028, ¶ 9, 121 N.M. 798, 918 P.2d 714; see also State v. Rojo,

11 1999-NMSC-001, ¶ 52, 126 N.M. 438, 971 P.2d 829 (explaining that the complexity

12 of the case is best determined by the district court, which must consider both the

13 nature and complexity of the crime). This was a complex case which, under Garza,

14 should have been brought to trial within eighteen months. See 2009-NMSC-038, ¶ 2.

15   {16}   Defendant was arrested on May 12, 2008. Twenty-two months later, the first


            3
16           Defendant faced one count of kidnapping, two counts of attempt to commit
17   criminal sexual penetration in the first degree (child under thirteen), one count of
18   interference with communications, ten counts of criminal sexual contact of a minor
19   in the second degree (child under thirteen), and two counts of criminal sexual contact
20   of a minor in the third degree (child under thirteen).

                                               8
 1 trial resulted in a mistrial. This period alone was sufficient to raise speedy trial

 2 concerns, unlike cases in which the mistrial occurred within the speedy trial

 3 guideline. See, e.g., State v. Castro, 2017-NMSC-027, ¶ 20, __ P.3d __ (noting that

 4 the mistrial occurred within the prescribed period for a simple case). By the time of

 5 the retrial on May 17-20, 2010, the case had been pending for a total of two years; six

 6 months past the Garza deadline. See 2009-NMSC-038, ¶ 48.

 7   {17}   Nevertheless, while sufficient to trigger the speedy trial analysis, the two-year

 8 delay was not extraordinary. See, e.g., Serros, 2016-NMSC-008, ¶ 24 (holding that

 9 a delay of four years and three months was extraordinary and weighed heavily in the

10 defendant’s favor); see also Doggett v. United States, 505 U.S. 647 (1992), 657-58

11 (describing an eight and one-half year delay between the defendant’s indictment and

12 arrest as extraordinary). Thus, the length of delay weighs only slightly against the

13 State.

14 B.       Reason for the Delay

15   {18}   The second Barker factor requires us to evaluate the reason for the delay. 407

16 U.S. at 530-31. We begin by calling to mind the three types of delay identified in

17 Barker. See id. at 531. First, “[a] deliberate attempt to delay the trial in order to

18 hamper the defense should be weighted heavily against the government.” Id. Second,


                                                9
 1 negligent or administrative delay weighs less heavily but nevertheless weighs against

 2 the State because “the ultimate responsibility for such circumstances must rest with

 3 the government rather than with the defendant.” Id. Third, neutral delay, or delay

 4 justified by a valid reason, does not weigh against either party. See id. (stating that

 5 “a valid reason . . . should serve to justify appropriate delay”); see also State v.

 6 O’Neal, 2009-NMCA-020, ¶¶ 20-21, 145 N.M. 604, 203 P.3d 135 (describing a

 7 mistrial and inclement weather as “purely neutral circumstances” and holding that the

 8 resulting delays did not weigh against either party). In addition, delay initiated by

 9 defense counsel generally weighs against the defendant. See Serros, 2016-NMSC-

10 008, ¶ 46 (“[T]he actions of defense counsel ordinarily are attributable to the

11 defendant.”).

12   {19}   Because there was a mistrial in this case, the pre-trial delay falls into two

13 separate periods. Before the mistrial, trial was postponed for a number of reasons,

14 including a furlough affecting the New Mexico Public Defender Department (Public

15 Defender Department). The mistrial itself caused an additional two months of delay,

16 what we determine to be a reasonable length of time. For reasons we explain below,

17 we determine that the delay was primarily neutral and administrative.

18 1.       Pre-Mistrial delay


                                              10
 1 a.       Eighteen months of administrative delay

 2   {20}   The first four trial settings were postponed for administrative reasons, resulting

 3 in nearly eighteen months of pretrial delay.

 4   {21}   The prosecution moved along expeditiously for the first six months following

 5 Defendant’s arrest.4 The delays began when the district court vacated the first trial

 6 setting of November 10, 2008 because the second day of trial fell on a state holiday.

 7 This resulted in a one-month delay. The district court then vacated the second trial

 8 setting of December 17, 2008 to allow Defendant to conduct witness interviews. This

 9 caused a delay of two and one-half months. The district court vacated the third trial

10 setting of March 4, 2009 due to a pending motion. This resulted in a three-month

11 delay. The district court continued the fourth setting of May 26, 2009 because the trial

12 was set for only one day instead of three days. This led to a five-month delay.

13   {22}   The State argues that, because Defendant asked the district court to vacate the



            4
14          For the reader’s convenience, periods of delay are rounded to the nearest half
15   month. The respective periods of delay are May 12, 2008 to November 10, 2008 (five
16   months, 29 days); November 10, 2008 to December 17, 2008 (one month, seven
17   days); December 17, 2008 to March 4, 2009 (two months, 15 days); March 4, 2009
18   to May 26, 2009 (two months, 22 days); May 26, 2009 to October 27, 2009 (five
19   months, one day); October 27, 2009 to January 13, 2010 (two months, 17 days);
20   January 13, 2010 to March 8, 2010 (one month, 23 days); and March 8, 2010 to May
21   17, 2010 (two months, nine days).

                                                11
 1 second trial setting in order to enable him to conduct witness interviews, the Court

 2 of Appeals wrongly attributed the delay following the second trial setting of

 3 December 17, 2008 to the State. We disagree with the State and affirm the Court of

 4 Appeals on this issue. See Ochoa, 2014-NMCA-065, ¶ 11. The basis for the

 5 continuance was to enable Defendant to adequately prepare for trial. Defendant

 6 needed time to conduct witness interviews, which had been postponed three times.

 7 This was a legitimate reason for Defendant to seek to postpone the second trial

 8 setting, and the resulting two and one-half month delay does not weigh against him.

 9 See Garza, 2009-NMSC-038, ¶ 11 (“ ‘[I]f either party is forced to trial without a fair

10 opportunity for preparation, justice is sacrificed to speed.’ ”). Further, the State did

11 not oppose Defendant’s request to continue the second trial setting. This period of

12 delay was necessary to enable Defendant to adequately prepare for trial, and the

13 request does not weigh against him under these circumstances.

14   {23}   The foregoing continuances resulted in almost eighteen months of delay, all of

15 which were caused by negligent or administrative reasons. See Barker, 407 U.S. at

16 531 (explaining that such delay should be weighed less heavily but nevertheless

17 weighs against the State). “As the length of delay increases, negligent or

18 administrative delay weighs more heavily against the State.” Serros, 2016-NMSC-


                                              12
 1 008, ¶ 29 (citing Garza, 2009-NMSC-038, ¶ 26 (quoting Barker, 407 U.S. at 531)).

 2 Here, the length of delay caused by negligent or administrative reasons was seventeen

 3 and one-half months—just under the Garza guideline for a complex case. See Garza,

 4 2009-NMSC-038, ¶ 48. In other words, the majority of delay in this case falls into the

 5 “more neutral” category described in Barker. See 407 U.S. at 531. As such, we weigh

 6 this period slightly against the State.

 7 b.       Four and one-half months of neutral delay

 8   {24}   The fifth and sixth trial settings were vacated for reasons we determine to be

 9 “neutral.” The resulting delay amounted to four and one-half months of neutral delay.

10   {25}   The fifth trial setting of October 27, 2009 was vacated because the district

11 court judge’s sister died, causing two and one-half months of delay. This delay is a

12 classic example of what we consider “neutral” delay that weighs against neither party.

13 See, e.g., O’Neal, 2009-NMCA-020, ¶¶ 20-21.

14   {26}   The sixth trial setting of January 13, 2010 was delayed at Defendant’s urging,

15 as a furlough of employees of the Public Defender Department was expected to take

16 effect on the third day of trial. In his motion to continue, Defendant stated that

17 Governor Richardson had designated Friday, January 15, 2010 as a mandatory

18 furlough day for all state employees and that defense counsel, a public defender, was


                                              13
 1 subject to the mandatory furlough. Defendant also noted that this Court, contrary to

 2 the Governor’s mandate, had ordered public defenders to appear at hearings

 3 scheduled on the furlough day. Even so, Defendant asserted that defense counsel

 4 would be without support staff and unable to provide effective assistance at trial.

 5   {27}   The district court granted the request to continue the trial “to ensure the

 6 [d]efense [c]ounsel ha[d] adequate support staff to prepare a defense.” Defendant

 7 argued that the “mandatory furlough is an action by the State” and any resulting delay

 8 to the proceedings should weigh against the State. The Court of Appeals agreed with

 9 Defendant and weighed the ensuing months against the State. See Ochoa, 2014-

10 NMCA-065, ¶ 10. We disagree with attributing this delay to the State for the

11 following reasons.

12   {28}   In Vermont v. Brillon, the Supreme Court of the United States established the

13 general rule that “delays caused by defense counsel are properly attributed to the

14 defendant, even where counsel is assigned.” 556 U.S. at 94; id. at 85 (“[D]elays

15 sought by counsel are ordinarily attributable to the defendants they represent.”).

16 However, the Brillon Court foresaw an exception to the general rule where the delay

17 results from a “systemic breakdown in the public defender system.” See id. at 94

18 (internal quotation marks and citation omitted). The Brillon Court did not define the


                                              14
 1 contours of this exception.5 See id. Thus, we must decide whether the furlough, which

 2 affected staff at the Public Defender Department for only one day of trial, constitutes

 3 a “systemic breakdown in the public defender system.” See id. (internal quotation

 4 marks and citation omitted). We conclude that it does not.

 5   {29}   Other courts have interpreted “systemic breakdown in the public defender

 6 system” to describe problems that are not only institutional in origin, but sufficiently

 7 serious to justify weighing the delay against the government. See, e.g., Weis v. State,

 8 287 Ga. 46, 694 S.E.2d 350, 354-55 (2010) (holding that funding problems did not

 9 amount to a breakdown of the entire public defender system when “lack of funding

10 . . . was not the sole factor contributing to the delay”), cert. denied, Weis v. Georgia,

11 562 U.S. 850 (2010); cf. United States v. Young, 657 F.3d 408, 414-15 (6th Cir. 2011)

12 (rejecting the argument that the district court’s untimeliness was a “systemic failure”

13 that should weigh against the State). We agree with this interpretation, and conclude

14 that a “systemic breakdown in the public defender system” must be based upon


            5
15           The Court granted certiorari to determine whether a state’s failure to fund
16   counsel for an indigent defendant weighs against the State in Boyer v. Louisiana, 133
17   S. Ct. 1702, 1702 (2013) (per curiam), dismissing cert. as improvidently granted.
18   However, the Court dismissed the writ as improvidently granted after determining
19   that the record did not squarely present that issue. See id. at 1703 (concluding that
20   most of the delay resulted from defense requests for continuances, other defense
21   motions, and events beyond the control of either party).

                                              15
 1 problems that are both institutional in origin and debilitating in scope.

 2   {30}   In the instant case, the furlough was initiated by the Governor and resulted

 3 from events beyond the control of the defense and the prosecution. Cf. Brillon, 556

 4 U.S. at 94 (“The effect of these earlier events should have been factored into the

 5 court’s analysis of subsequent delay.”). Thus, the period of delay caused by the

 6 furlough was institutional in origin. However, the furlough was not so debilitating as

 7 to justify attributing the delay to the government.

 8   {31}   The importance of adequately funding the institutions obligated to fulfill our

 9 constitutional responsibilities to accused persons cannot be overstated. See Kerr v.

10 Parsons, 2016-NMSC-028, ¶ 40, 378 P.3d 1 (Vigil, J., specially concurring).

11 However, we do not consider the delay caused by the instant furlough to be

12 sufficiently onerous to constitute a “systemic breakdown of the public defender

13 system.” See Brillon, 556 U.S. at 94 (internal quotation marks and citation omitted).

14 The furlough, which impacted only one day of a three-day jury trial and resulted in

15 just two months of the entire two-year delay, is not the type of “systemic breakdown”

16 contemplated by the Brillon Court. Cf. State v. Brown, 2015 WI App 90, ¶ 46, 365

17 Wis. 2d 608, 871 N.W.2d 867 (non-precedential) (concluding that there was no

18 systemic breakdown when its public defender department left an unlicensed attorney


                                              16
 1 on a case for a short period of the delay).

 2   {32}   Consistent with Brillon, we note that the “contrary conclusion could encourage

 3 appointed counsel to delay proceedings by seeking unreasonable continuances,

 4 hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds.” See

 5 Brillon, 556 U.S. at 93. Such a rule could create perverse incentives for defense

 6 counsel seeking to secure dismissal of a case. See id. In turn, “[t]rial courts might well

 7 respond by viewing continuance requests made by appointed counsel with skepticism,

 8 concerned that even an apparently genuine need for more time is in reality a delay

 9 tactic.” Id. Defendant specifically asserted that he would lack the support of

10 paralegals, secretaries, and investigators on the third day of trial. To weigh the

11 ensuing delay against the State could fault the State for delay initiated by any defense

12 attorney whose support staff were unavailable for trial. This result would be

13 inappropriate where the State diligently persevered in moving the case forward, as in

14 the instant case.

15   {33}   We also do not consider the fact that Defendant sought the continuance—due

16 to the furlough—to be dispositive of this issue. As stated in Brillon, courts must

17 account for the earlier factors in a sequence of events when determining the reasons

18 for delay. Id. at 94 (“The effect of these earlier events should have been factored into


                                               17
 1 the court’s analysis of subsequent delay.”). The district court was justified in granting

 2 the continuance in anticipation of the furlough day. See id. We do not weigh this

 3 delay against a defendant “for the simple reason that an indigent defendant has no

 4 control over whether a [s]tate has set aside funds to pay his lawyer.” Cf. Boyer, 133

 5 S.Ct. at 1707 (Sotomayor, J., dissenting from dismissal of writ of certiorari). This

 6 analysis leads us to conclude that the two months following the furlough do not

 7 weigh against either party. We therefore conclude that this was a neutral delay.

 8 2.       Delay following the mistrial

 9   {34}   We proceed to consider the period after the mistrial. The mistrial occurred on

10 March 8, 2010, two months before Defendant was convicted in a retrial. The district

11 court found this period to be neutral, consistent with precedent then in force. See

12 O’Neal, 2009-NMCA-020, ¶ 21 (weighing the period after a mistrial neutrally

13 because it “[bore] no fault attributable to the parties”). Since then, this Court has

14 announced that after a mistrial “the speedy trial clock does not begin to run

15 anew—that is, the court does not have another [eighteen] months to schedule a

16 [complex] case for retrial.” Castro, 2017-NMSC-027, ¶ 21.

17   {35}   In Castro, we rejected the approach under which the speedy trial “clock” resets

18 and runs anew from the date of the mistrial. Id.; see, e.g., State v. Strong, 258 Mont.


                                              18
 1 48, 50, 851 P.2d 415 (1993). The “clock” approach does not adequately protect

 2 incarcerated defendants in the event of successive mistrials. Reuster v. Turner, 250

 3 So.2d 264, 267 (Fla. 1971) (“A construction allowing for a continuing series of new

 4 demand periods reinstated in the event of each mistrial would . . . do violence to our

 5 organic guarantee of speedy trial . . . .”), overruling Kelly v. State ex rel. Morgan, 54

 6 So.2d 431, 432 (Fla. 1951). It is also inconsistent with our obligation to consider the

 7 unique circumstances underlying each speedy trial claim, including the particularized

 8 prejudice facing each defendant. See Barker, 407 U.S. at 522 (“[A]ny inquiry into a

 9 speedy trial claim necessitates a functional analysis of the right in the particular

10 context of the case.”); see also Garza, 2009-NMSC-038, ¶ 13 (“Violation of the

11 speedy trial right is only determined through a review of the circumstances of a case,

12 which may not be divorced from a consideration of . . . the harm to the

13 defendant . . . . ”).

14   {36}   Nor did we adopt a second approach under which a mistrial is not a “trial” for

15 speedy trial purposes, and defendants must be tried by a statutory deadline or

16 released. See, e.g., Rider v. State, 118 S.E.2d 749, 750 (Ga. Ct. App. 1961). The

17 second approach conflicts with Garza, which “specifically rejects inflexible, bright-

18 line approaches to analyzing a speedy trial claim.” See 2009-NMSC-038, ¶ 13. It also


                                              19
 1 conflicts with our rejection of the presumption that the right to a speedy trial has been

 2 violated when the delay crosses a threshold of “presumptive prejudice.” See id. ¶ 21.

 3 Like the “clock” approach, the second approach prevents a court from examining the

 4 particular circumstances of each case. We reject both of these approaches as

 5 inconsistent with our speedy trial jurisprudence.

 6   {37}   Castro embodies a third approach.“Ordinarily the court should schedule the

 7 retrial as soon as its docket permits unless the parties justifiably require additional

 8 pre-retrial discovery or motions practice.” Castro, 2017-NMSC-027, ¶ 21. In other

 9 words, a defendant must be brought to trial within a reasonable time following a

10 mistrial. See, e.g., People v. Dixon, 87 Ill. App. 3d 84, 43 Ill. Dec. 252, 410 N.E.2d

11 252, 256 (2d Dist. 1980) (concluding that the constitutional right to a speedy trial was

12 not violated when the defendant was retried within a reasonable time). This approach

13 is consistent with both Barker and Garza. In the event of a mistrial, district courts

14 must consider and weigh the ensuing developments in accordance with the

15 particularized circumstances of each case. See Garza, 2009-NMSC-038, ¶ 13; see

16 also Barker, 407 U.S. at 530-31 (explaining that the speedy trial inquiry “is

17 necessarily dependent upon the peculiar circumstances of the case”).

18   {38}   In Castro, we were “particularly disturb[ed]” by a thirty-two month post-


                                              20
 1 mistrial delay. Castro, 2017-NMSC-027, ¶ 21. In contrast, the retrial occurred just

 2 two months after the mistrial in this case. No one can reasonably contend that the

 3 retrial did not occur in a reasonable amount of time.

 4   {39}   We emphasize, however, the importance of timely disposition of cases.

 5 Boundless pretrial delay caused by the inefficiencies of those responsible for the fair

 6 and timely administration of justice has significant adverse consequences to the

 7 community and victims, as well as the accused. Barker, 407 U.S. at 519 (“[T]here is

 8 a societal interest in providing a speedy trial which exists separate from, and at times

 9 in opposition to, the interests of the accused.”). The effect of extended delay on

10 determinations of truth and reliability “is a two-edged sword. It is the Government

11 that bears the burden of proving its case beyond a reasonable doubt. The passage of

12 time may make it difficult or impossible for the Government to carry this burden.”

13 Doggett, 505 U.S. at 659 (O’Connor, J., dissenting). When the regular course of

14 prosecution is interrupted by an unexpected turn of events, it should be rescheduled

15 in the manner best designed to foster expeditious resolution of a case. See Castro,

16 2017-NMSC-027, ¶ 21.

17   {40}   In sum, under the second Barker factor, just under eighteen months of delay

18 were caused by administrative reasons. This falls within the guidelines for a complex


                                              21
 1 case and therefore weighs only slightly against the State. See Garza, 2009-NMSC-

 2 038, ¶ 2 (setting eighteen months as the guideline for a complex case); id. ¶ 26 (“The

 3 degree of weight we assign against the State for [administrative] delay is closely

 4 related to the length of delay[.]”). Further, the four and one-half month delay caused

 5 by the unforeseen death and the furlough of the employees of the Public Defender

 6 Department is neutral delay and does not weigh against either party. Finally, the State

 7 brought Defendant to trial within a reasonable time after the mistrial. Therefore, the

 8 second factor does not weigh heavily against the State.

 9 C.       Assertion of the Right to a Speedy Trial

10   {41}   The third Barker factor asks us to consider whether Defendant asserted the

11 right to a speedy trial. 407 U.S. at 531-32. The district court has the discretion to

12 weigh a defendant’s assertion based on the circumstances of the case. Id. at 528-29.

13 The frequency and force of the objections can be taken into account in considering

14 the defendant’s assertion, as well as whether an assertion is purely pro forma. Id. at

15 529. Pro forma assertions are sufficient to assert the right, but are given little weight

16 in a defendant’s favor. State v. Urban, 2004-NMSC-007, ¶ 16, 135 N.M. 279, 87 P.3d

17 1061.

18   {42}   In evaluating the third factor, this Court has also noted the importance of


                                              22
 1 closely examining the circumstances of each case. Garza, 2009-NMSC-038, ¶ 33.

 2 This includes accounting for a defendant’s actions with regard to the delay, such as

 3 filing frivolous motions or procedural maneuvers. See id. ¶ 32. On one hand, a single

 4 demand for a speedy trial is sufficient to assert the right. See, e.g., id. ¶ 34. On the

 5 other hand, a defendant’s assertion can be weakened by a defendant’s acquiescence

 6 to the delay. Id. We also consider the consistency of a defendant’s legal positions

 7 with respect to the delay. See id. ¶ 33.

 8   {43}   In the instant case, Defendant filed five demands and four motions to dismiss

 9 for violation of the right to a speedy trial. These filings were interspersed with

10 Defendant’s requests to continue the second and sixth trial settings. However,

11 Defendant failed to respond to the State’s three petitions to extend the time to

12 commence trial.

13   {44}   The State argues that Defendant weakened his assertion by requesting two

14 continuances. We disagree. The Court of Appeals correctly concluded that the

15 continuances sought by Defendant were the result of legitimate concerns in securing

16 a fair trial for two reasons. Ochoa, 2014-NMCA-065, ¶ 19. The first was to ensure

17 adequate time to prepare and review newly disclosed information. See id. ¶ 11. The

18 second was because the third day of trial fell on a furlough day. See id. ¶ 19. We do


                                              23
 1 not expect a defendant to choose between a speedy trial and an adequate defense. See

 2 Garza, 2009-NMSC-038, ¶ 32 (citing McNeely v. Blanas, 336 F.3d 822, 831 (9th Cir.

 3 2003)). Defendant did not weaken his assertion of the right to a speedy trial by

 4 requesting two continuances. See Urban, 2004-NMSC-007, ¶ 16 (holding that the

 5 defendant’s request for a continuance did not “erase” his assertion of the right).

 6   {45}   Defendant did, however, dilute the strength of his assertion by failing to

 7 respond in a substantive manner to the State’s three requests to extend the “six-month

 8 rule.” See Rule 5-604(B)-(C) (Rule 5-604, the “six-month rule,” requires the State to

 9 bring a defendant to trial within six months, but permits the district court to grant an

10 extension for good cause.). Defendant did not file a response to any of these petitions.

11 The first petition states that Defendant did not oppose the extension. The second

12 petition states that Defendant opposed the extension and would file a response—but

13 Defendant never did so. The third petition states that Defendant opposed the

14 extension but “no hearing [was] necessary.”

15   {46}   Substantive responses are necessary to adequately inform the district court of

16 each party’s position so it can fully and fairly consider the merits of the request. By

17 failing to assert a consistent position on the issue, Defendant acquiesced to the delay.

18 Garza, 2009-NMSC-038, ¶ 34 (explaining that a defendant’s “acquiescence to the


                                              24
 1 delay” can mitigate the strength of the assertion). Therefore, Defendant’s lack of

 2 response to the State’s three requests to extend the six-month rule tempered his

 3 assertion of the right to a speedy trial.

 4   {47}   Further, given the timing of the State’s petitions, Defendant’s silence muted his

 5 demands for a speedy trial. See Garza, 2009-NMSC-038, ¶ 33. Just one month before

 6 Defendant filed his first demand for a speedy trial, Defendant did not oppose the

 7 State’s first petition for an extension. One day after filing his second demand for a

 8 speedy trial, Defendant did not respond to the State’s second request for an extension.

 9 Finally, just days before filing his fifth demand for a speedy trial, Defendant did not

10 respond to the State’s third request for an extension. The timing of these demands, in

11 relation to Defendant’s acquiescence to the State’s requests to continue the trial

12 settings, is “reminiscent of Penelope’s tapestry.”6 Therefore, we decline to weigh the

13 third Barker factor in Defendant’s favor.

14 D.       Prejudice

15   {48}   The final Barker factor requires us to examine the prejudice to Defendant. 407


            6
16          United States v. Loud Hawk, 474 U.S. 302, 314 (1986) (quoting Homer, The
17   Odyssey, Book II, lines 91-105) (Richmond Lattimore trans., 1965) (comparing a
18   defendant’s actions to those of Penelope, the wife of Odysseus, who claimed she
19   would accept a suitor when she finished a tapestry, but unraveled part of the tapestry
20   every night)).

                                               25
 1 U.S. at 532. “Prejudice, of course, should be assessed in the light of the interests of

 2 defendants which the speedy trial right was designed to protect.” Id. These interests

 3 are preventing oppressive pretrial incarceration, minimizing anxiety and concern of

 4 the accused, and limiting the possibility that the defense will be impaired. Id. We

 5 examine these interests in light of the specific facts and circumstances of each case.

 6 See id. at 522.

 7   {49}   We begin our analysis of the prejudice factor by noting two important facts.

 8 First, Defendant was incarcerated for two years before he was ultimately tried and

 9 convicted. Second, Defendant did not offer proof in the form of affidavits, testimony,

10 or other documentation to support his prejudice claim. Thus, we are compelled to

11 assess the prejudice factor with little assistance from Defendant. See Garza, 2009-

12 NMSC-038, ¶ 35 (“[W]e will not speculate as to the impact of pretrial incarceration

13 on a defendant or the degree of anxiety a defendant suffers.”).

14   {50}   On appeal, the State asserts that the Court of Appeals erred in creating a bright-

15 line rule that twenty-two months of pretrial incarceration is unduly prejudicial even

16 when a defendant fails to make a particularized showing of prejudice. The State

17 asserts that the Court of Appeals wrongly emphasized the length of delay in

18 concluding that Defendant was prejudiced:


                                                26
 1          “With respect to pretrial incarceration, the question is whether the length
 2          of time was unacceptably long in that it became unduly prejudicial so as
 3          to factor into the analysis.” State v. Laney, 2003-NMCA-144, ¶ 29, 134
 4          N.M. 648, 81 P.3d 591. This Court previously concluded that a delay of
 5          twenty-two months prejudiced a defendant. See State v. Moreno, 2010-
 6          NMCA-044, ¶¶ 36-37, 148 N.M. 253, 233 P.3d 782 (considering
 7          twenty-two months of pretrial incarceration as the main factor in
 8          determining that the defendant was prejudiced). Here, Defendant was
 9          incarcerated even longer. This is the “precise kind” of prejudice the
10          speedy trial right was intended to prevent.

11 Ochoa, 2014-NMCA-065, ¶ 23. For the reasons that follow, we reject the State’s

12 argument and agree with the Court of Appeals on this issue. In doing so, we address

13 three interrelated issues: (1) What is the role of the length of pretrial incarceration in

14 determining whether a defendant suffered prejudice; (2) Can we presume that a

15 defendant suffered particularized prejudice when, as here, he failed to present

16 affirmative proof in support of his prejudice claim; and (3) If so, what is the weight

17 of such a presumption in the overall balancing test? We hold that Defendant was

18 prejudiced as a result of his continuous pretrial incarceration, although this

19 presumption does not dispose of the speedy trial claim.

20   {51}   Defendant was continuously incarcerated during the two years leading up to

21 trial. As the Barker Court recognized:

22          [There are] societal disadvantages of lengthy pretrial incarceration, [and]
23          obviously the disadvantages for the accused who cannot obtain his


                                                27
 1          release are even more serious. The time spent in jail awaiting trial has
 2          a detrimental impact on the individual. It often means loss of a job; it
 3          disrupts family life; and it enforces idleness. . . . The time spent in jail
 4          is simply dead time. Moreover, if a defendant is locked up, he is
 5          hindered in his ability to gather evidence, contact witnesses, or
 6          otherwise prepare his defense. Imposing those consequences . . . is
 7          serious.

 8 407 U.S. at 532-33 (footnotes omitted). “The oppressive nature of the pretrial

 9 incarceration depends on the length of incarceration, whether the defendant obtained

10 release prior to trial, and what prejudicial effects the defendant has shown as a result

11 of the incarceration.” Garza, 2009-NMSC-038, ¶ 35 (citing Barker, 407 U.S. at 532-

12 33). Because some degree of oppression and anxiety is inherent in every

13 incarceration, “we weigh this factor in the defendant’s favor only where the pretrial

14 incarceration or anxiety suffered is undue.” Id. ¶ 35 (citation omitted).

15   {52}   Consistent with Barker and Garza, the Court of Appeals properly considered

16 the length of incarceration in determining whether there was oppressive pretrial

17 incarceration. See Barker, 407 U.S. at 532-33; Garza, 2009-NMSC-038, ¶ 35 (citing

18 Barker, 407 U.S. at 532-33). Although a defendant bears the burden of proving

19 prejudice, this burden varies with the length of pretrial incarceration. See Garza,

20 2009-NMSC-038, ¶ 35 (explaining that a defendant “bear[s] the burden of production

21 on this issue” (internal quotation marks and citation omitted)); see, e.g., id. ¶ 37


                                                28
 1 (concluding that the defendant made no showing of prejudice when he spent only two

 2 hours in jail and apparently offered no proof in support of his prejudice claim); see

 3 also Spearman, 2012-NMSC-023, ¶¶ 3, 39 (concluding that the record was too

 4 limited to determine whether there was prejudice when the defendant spent only one

 5 day in jail); see Serros, 2016-NMSC-008, ¶¶ 21, 90 (considering the defendant’s

 6 testimony in its conclusion that four years of pretrial incarceration resulted in extreme

 7 prejudice).

 8   {53}   Generally, mere allegations are insufficient to prove prejudice. Jackson v. Ray,

 9 390 F.3d 1254, 1264 (10th Cir. 2004) (stating that “[t]he burden of showing all types

10 of prejudice lies with the individual claiming the violation and the mere ‘possibility

11 of prejudice is not sufficient’ ”). For example, the defendant in Garza spent only two

12 hours in jail and did not offer proof in support of his prejudice claim. 2009-NMSC-

13 038, ¶ 37. We held that the defendant “made no showing of prejudice” cognizable

14 under the fourth Barker factor. Id. Likewise, the defendant in Spearman asserted that

15 he lost employment opportunities, had to move, and eventually suffered bankruptcy

16 due to the pending charges. 2012-NMSC-023, ¶¶ 38, 39. He offered no evidence in

17 support of his assertions and spent only one day in jail. Id. ¶¶ 3, 39. This Court

18 concluded that it could not determine whether the defendant was prejudiced due to


                                               29
 1 the lack of evidence in the record. See id. ¶ 39.

 2   {54}   However, lengthy and onerous pretrial incarceration may render affirmative

 3 proof unnecessary to find that the defendant suffered prejudice. See, e.g., Serros,

 4 2016-NMSC-008, ¶ 90; State v. Brown, 2017-NMCA-046, ¶ 37, 396 P.3d 171

 5 (rejecting the State’s argument that a defendant incarcerated for thirty-three months

 6 did not suffer particularized prejudice). In Serros, for example, the defendant testified

 7 that he was incarcerated for more than four years in custodial segregation. See 2016-

 8 NMSC-008, ¶ 88. We noted that “[the d]efendant’s testimony easily establishes that

 9 the delay . . . caused him to suffer oppressive pretrial incarceration.” Id. ¶ 90.

10 However, we also acknowledged that the defendant’s testimony was not essential to

11 our conclusion that he suffered oppressive pretrial incarceration. See id. (describing

12 the length of incarceration as “oppressive on its face”). Independent of the testimony

13 describing his specific circumstances, the oppressive nature of the incarceration was

14 self-evident based on the sheer length of incarceration. See id. Thus, the length of

15 incarceration is a counterweight to a defendant’s burden of production.

16   {55}   The State incorrectly assumes that a court cannot find that a defendant has

17 suffered prejudice when the defendant fails to present affirmative proof in support of

18 his prejudice claim. Despite the emphasis in our recent jurisprudence on a defendant’s


                                              30
 1 burden in showing prejudice, we have also acknowledged that a defendant need not

 2 always present affirmative proof in support of a prejudice claim. Garza, 2009-NMSC-

 3 038, ¶ 39 (stating that “in some circumstances, prejudice may be presumed” and that

 4 “[t]he presumption that pretrial delay has prejudiced the accused intensifies over

 5 time” (alteration in original) (internal quotation marks and citations omitted)); id.

 6 (recognizing that a defendant need not show prejudice when the other three Barker

 7 factors weigh strongly in his favor (citing United States v. Mendoza, 530 F.3d 758,

 8 764 (9th Cir. 2008))); see also Moore v. Arizona, 414 U.S. 25, 26 (1973) (per curiam)

 9 (“Barker v. Wingo expressly rejected the notion that an affirmative demonstration of

10 prejudice was necessary to prove a denial of the constitutional right to a speedy

11 trial[.]”).

12   {56}   The United States Supreme Court has expressly held that “consideration of

13 prejudice is not limited to the specifically demonstrable[.]” Doggett, 505 U.S. at 655.

14 In Doggett, the Court held that the defendant suffered presumptive prejudice as a

15 result of an eight and one-half year delay. Id. at 655-58. “[E]xcessive delay

16 presumptively compromises the reliability of a trial in ways that neither party can

17 prove or, for that matter, identify.” Id. at 655. Although the Doggett Court addressed

18 the third type of prejudice—impairment of the defense—its reasoning is persuasive


                                             31
 1 with respect to Defendant’s other prejudice claims. Pursuant to Doggett, a court can

 2 under certain circumstances presume that a defendant suffered some degree of

 3 prejudice even without affirmative proof. Id. at 655 (presuming that a defendant

 4 suffered prejudice and noting that certain forms of prejudice “can rarely be shown”).

 5   {57}   We agree with the Court of Appeals that Defendant’s two-year incarceration

 6 resulted in prejudice. Ochoa, 2014-NMCA-065, ¶ 23. Continuous pretrial

 7 incarceration is obviously oppressive to some degree, even in the absence of

 8 affirmative proof. See Barker, 407 U.S. at 532-33 (describing disadvantages for the

 9 accused as “obvious”). When, as in this case, a defendant was continuously

10 incarcerated for an extended period of time, it requires no speculation to determine

11 that the defendant suffered some prejudice. Cf. Loud Hawk, 474 U.S. at 304, 315

12 (1986) (holding that the prejudice to respondents who were neither under indictment

13 nor subject to official restraint was too speculative to weigh in their favor). Therefore,

14 we presume that Defendant was prejudiced simply by being continuously incarcerated

15 for two years.

16   {58}   We are unpersuaded by the State’s argument that the length of delay is too

17 short to presume prejudice. In support of this argument, the State relies on cases in

18 which the defendants did not suffer oppressive pretrial incarceration. See Barker, 407


                                               32
 1 U.S. at 533-34 (finding no prejudice when the defendant was incarcerated for just ten

 2 months of the five-year delay); Jackson, 390 F.3d at 1258, 1263-65 (declining to

 3 presume prejudice when the defendant was incarcerated for just one year and nine

 4 months out of the four-year delay, without considering whether the defendant

 5 suffered oppressive pretrial incarceration); United States v. Serna-Villarreal, 352

 6 F.3d 225, 232-33 (5th Cir. 2003) (holding that a delay of three years and nine months

 7 was too short to presume prejudice, without addressing whether the defendant was

 8 continuously incarcerated). These cases are distinguishable from the instant case.

 9   {59}   Nor are we convinced that the prejudice to Defendant is too speculative to

10 consider in the speedy trial analysis. See, e.g., Loud Hawk, 474 U.S. at 314. In Loud

11 Hawk, a split court held that the mere possibility of prejudice was not sufficient to

12 support the respondent’s assertion that their speedy trial rights were violated. See id.

13 at 315. The Loud Hawk respondents—unlike Defendant—were unconditionally

14 released from custody. Id. at 308. Indeed, Loud Hawk expressly holds that the speedy

15 trial right applies when defendants are subject to substantial restrictions on their

16 liberty. Id. at 312 (“[T]he Speedy Trial Clause’s core concern is impairment of

17 liberty[.]”). We agree with the Court of Appeals that Defendant suffered “the ‘precise

18 kind’ of prejudice” the speedy trial right is meant to prevent. See Ochoa, 2014-


                                              33
 1 NMCA-065, ¶ 23.

 2   {60}   But our inquiry does not end there. Though it is obvious that Defendant was

 3 prejudiced by virtue of his continuous incarceration, absent affirmative proof, we can

 4 only speculate as to the specific circumstances of his incarceration. See Garza, 2009-

 5 NMSC-038, ¶ 35. In Serros, for example, the defendant’s testimony supported our

 6 determination that the pretrial incarceration resulted in extreme prejudice. See 2016-

 7 NMSC-008, ¶¶ 88-90 (“[The d]efendant’s testimony easily establishes that the delay

 8 in his case caused him to suffer oppressive pretrial incarceration.”). However, a

 9 defendant could conceivably suffer oppressive pretrial incarceration in a much shorter

10 time, or suffer less prejudice during a longer period of incarceration. These particulars

11 are unknowable in the absence of affirmative proof. With affirmative proof,

12 Defendant could have provided the Court with a basis for concluding that he suffered

13 extreme prejudice.

14   {61}   Similarly, we can presume that Defendant suffered some degree of anxiety and

15 concern, but can only speculate as to whether such prejudice was undue. See

16 Spearman, 2012-NMSC-023, ¶ 39 (declining to hold that the defendant suffered

17 undue anxiety based on the bare allegations of defense counsel); see also Garza,

18 2009-NMSC-038, ¶ 35 (requiring the anxiety to be undue in order to weigh in the


                                              34
 1 defendant’s favor). Defendant did not offer affidavits, testimony, or documentation

 2 with respect to his specific circumstances of anxiety. Rather, Defendant argued that

 3 the State bore the burden of showing that he had not suffered anxiety or concern.

 4 Without this showing, we decline to speculate as to the particularized anxiety or

 5 concern he may have suffered. See Garza, 2009-NMSC-038, ¶ 35.

 6   {62}   We also presume that there was some impairment of the defense. Doggett, 505

 7 U.S. at 655 (explaining that impairment of the defense may be impossible to prove).

 8 The Doggett Court explicitly recognized the concept of presumptive prejudice in the

 9 form of impairment of the defense, id. at 655, and the Barker Court described this as

10 the “most serious” form of prejudice because “inability of a defendant adequately to

11 prepare his case skews the fairness of the entire system.” 407 U.S. at 532. Fading

12 witness memories are just one collateral effect of prolonged pretrial delay. See id.

13 (noting the possibility that the defense could also be impaired by loss of exculpatory

14 evidence). Nevertheless, Defendant was obligated to state “with particularity what

15 exculpatory [evidence] would have been offered[.]” Serros, 2016-NMSC-008, ¶ 85

16 (first alteration in original) (internal quotation marks and citations omitted). Here,

17 Defendant asserted that the memories of the alleged victims exhibited significant

18 discrepancies over the course of the delay, and that one of the witnesses changed her


                                             35
 1 story. Defendant did not state with particularity what exculpatory evidence may have

 2 been offered.

 3   {63}   Finally, we must determine the weight of our presumption in the overall

 4 balance. Presumptive prejudice is not dispositive of the speedy trial claim. See

 5 Doggett, 505 U.S. at 656. “[P]resumptive prejudice cannot alone carry a Sixth

 6 Amendment claim without regard to the other Barker criteria.” Id. Rather, “it is part

 7 of the mix of relevant facts, and its importance increases with the length of delay.”

 8 Id.

 9   {64}   In conclusion, we presume that Defendant was prejudiced by his two-year,

10 continuous incarceration. This prejudice is obvious and would be unjust to ignore. Cf.

11 Serros, 2016-NMSC-008, ¶ 27 (“To weigh a delay of over four years against [the

12 d]efendant—even slightly—[would be] simply unjust . . . .”). However, without

13 knowing his specific circumstances, we would be strained to conclude that this

14 prejudice prevails over the other three factors. Defendant bore the burden of showing

15 particularized prejudice, Garza, 2009-NMSC-038, ¶ 35, which would enable this

16 Court to weigh this factor more strongly in his favor. In the absence of such proof,

17 this factor does not tip the scale in Defendant’s favor. See Doggett, 505 U.S. at 656.

18 E.       Balancing the Barker Factors


                                             36
 1   {65}   We conclude that, while Defendant was prejudiced by his two-year pretrial

 2 incarceration, neither the length of delay, reasons for delay, nor assertion of the right

 3 to a speedy trial weigh in his favor. We presume prejudice based on Defendant’s

 4 continuous incarceration for an extended period before trial. Defendant’s burden of

 5 showing particularized prejudice was counterbalanced by the length of his pretrial

 6 incarceration. Nevertheless, this presumption does not weigh strongly in Defendant’s

 7 favor in this case. Thus, Defendant was not deprived of his right to a speedy trial.

 8   {66}   In short, our presumption that Defendant was prejudiced is simply not enough

 9 to tip the scale in favor of Defendant’s speedy trial claim. Despite the prejudice to

10 Defendant, the other factors do not weigh strongly in his favor. We therefore

11 conclude that Defendant’s right to a speedy trial was not violated.

12 III.     CONCLUSION

13   {67}   We reverse the Court of Appeals and reinstate Defendant’s convictions.

14   {68}   IT IS SO ORDERED.


15                                                 ______________________________
16                                                 BARBARA J. VIGIL, Justice




                                              37
1 WE CONCUR:



2 ___________________________________
3 JUDITH K. NAKAMURA, Chief Justice



4 ___________________________________
5 PETRA JIMENEZ MAES, Justice



6 ___________________________________
7 EDWARD L. CHÁVEZ, Justice



8 ___________________________________
9 CHARLES W. DANIELS, Justice




                                  38
