                                                                I attest to the accuracy and
                                                                 integrity of this document
                                                                   New Mexico Compilation
                                                                 Commission, Santa Fe, NM
                                                                '00'05- 09:23:23 2017.12.05

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMSC-031

Filing Date: October 23, 2017

Docket No. S-1-SC-34630

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

JOHN ERIC OCHOA,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Stephen Bridgforth, District Judge

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

for Petitioner

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

for Respondent

                                         OPINION

VIGIL, Justice.

{1}     The right to a speedy trial is guaranteed by the Sixth Amendment to the United States
Constitution and Article II, Section 14 of the New Mexico Constitution. Defendant was
arrested on May 12, 2008, and charged with a number of offenses relating to criminal sexual
contact of a minor. Prior to a mistrial on March 8, 2010, trial was delayed for a number of
reasons including a furlough affecting the New Mexico Public Defender Department (Public
Defender Department). Two months later, on May 17-20, 2010, Defendant was convicted
of one count of interference with communications and two counts of criminal sexual contact

                                             1
of a minor. Defendant was incarcerated for the entire pretrial period.

{2}    Defendant appealed his convictions and the Court of Appeals reversed on speedy trial
grounds. State v. Ochoa, 2014-NMCA-065, ¶¶ 1, 25-26, 327 P.3d 1102. The Court of
Appeals determined that Defendant was prejudiced by his two-year pretrial incarceration,
reasoning that “[t]his Court previously concluded that a delay of twenty-two months
prejudiced a defendant. Here, Defendant was incarcerated even longer.” Id. ¶ 23 (citation
omitted).

{3}      We granted certiorari and reverse, applying the four-factor balancing test from
Barker v. Wingo, 407 U.S. 514, 530 (1972). We conclude that neither the length of delay,
reason for delay, nor assertion of the right to a speedy trial weigh heavily in Defendant’s
favor. We presume that Defendant suffered some prejudice as a result of his continuous
pretrial incarceration, but our presumption does not outweigh the other three factors. See
State v. Garza, 2009-NMSC-038, ¶ 1, 212 P.3d 387 (holding that a defendant must generally
show particularized prejudice). Thus, despite the obvious prejudice to Defendant, his right
to a speedy trial was not violated.

I.      BACKGROUND

A.      The Right to a Speedy Trial

{4}     In examining whether a defendant has been deprived of his constitutional right to a
speedy trial, we use the four-factor test set forth in Barker, balancing the length of delay, the
reason for delay, the defendant’s assertion of the right to a speedy trial, and the prejudice to
the defendant. See 407 U.S. at 530. We defer to the district court’s factual findings in
considering a speedy trial claim, but weigh each factor de novo. State v. Spearman, 2012-
NMSC-023, ¶ 19, 283 P.3d 272.

{5}     The speedy trial analysis is not a rigid or mechanical exercise, but rather “a difficult
and sensitive balancing process.” See Barker, 407 U.S. at 533. The speedy trial right is
“amorphous, slippery, and necessarily relative.” Vermont v. Brillon, 556 U.S. 81, 89 (2009)
(internal quotation marks and citations omitted). We consider the factors on a case-by-case
basis. See Barker, 407 U.S. at 533; see also Garza, 2009-NMSC-038, ¶ 13 (stating that
Barker “necessarily compels courts to approach speedy trial cases on an ad hoc basis”).

B.      Timeline

{6}    We begin by setting forth the facts and circumstances surrounding the delays in
bringing Defendant to trial and the role of each party in the delays. Barker, 407 U.S. at 530
(“The approach we accept is a balancing test, in which the conduct of both the prosecution
and the defendant are weighed.”). Defendant was arrested on May 12, 2008 and tried just
over two years later, on May 17-20, 2010. Defendant was incarcerated for this entire period.


                                               2
{7}     Trial was reset on multiple occasions. The first, November 10, 2008, was vacated
because November 11, 2008 was a holiday and the trial required a multi-day setting. The
second, December 17, 2008, was vacated when Defendant requested a continuance to review
evidence acquired in delayed witness interviews. The third, March 4, 2009, was vacated due
to a pending motion.1 The fourth, May 26, 2009, was vacated because it was incorrectly set
for one day. The fifth, October 27, 2009, was unexpectedly continued when the judge’s sister
passed away.

{8}      Defendant moved to continue the sixth trial setting, January 13, 2010, because
Governor Richardson ordered state employees to cease work for five days, including the
third day of trial. The furlough reduced the budget of the Public Defender Department due
to a budget shortfall for fiscal year 2010. Despite the furlough, this Court ordered public
defenders to appear for regularly scheduled court appearances. The district court granted the
continuance to ensure that defense counsel had adequate support staff to prepare a defense.
Trial finally began on the seventh setting, March 8, 2010. However, the district court granted
a mistrial because a juror made an inflammatory comment.

{9}    Over the course of the proceedings, the State filed three petitions to extend the time
to commence trial. See Rule 5-604(B) NMRA (2008) (“For good cause shown, the time for
commencement of trial may be extended by the district court . . . [by] six (6) months.”).
Defendant opposed two out of three of the State’s petitions, but did not file substantive
responses to any of them. Each of the petitions was granted.

{10} Defendant filed five demands for a speedy trial and four motions to dismiss based
on violation of the right.2 In its ruling on the first motion to dismiss, the district court found
the case to be complex and that the length of pretrial delay was less than the eighteen months
required to trigger the speedy trial analysis under Garza. See 2009-NMSC-038, ¶ 2


        1
        Although the district court did not explain why this setting was vacated, the State
asserted that it was vacated due to a “pending motion yet to be heard,” most likely referring
to Defendant’s motion to sever, demand for discovery, motion to dismiss the indictment, or
motion to compel disclosure filed between November 21, 2008 and December 5, 2008.
Defendant also filed a motion for an evidentiary hearing and forensic evaluation to determine
witness competency on January 20, 2009. The State filed two requests to extend the time to
respond to those motions, which were both granted. The district court held a hearing on
Defendant’s motions on February 2, 2009, but did not issue orders until March 5, 2009, May
5, 2009, October 26, 2009, and November 9, 2009.
        2
        Defendant filed the first of five demands for a speedy trial on January 28, 2009,
followed by demands on June 22, 2009, September 9, 2009, September 17, 2009, and
November 23, 2009. Defendant filed his first motion to dismiss for violation of the right to
a speedy trial on September 15, 2009, followed by motions on December 28, 2009, February
11, 2010, and April 20, 2010.

                                                3
(establishing the guideline as eighteen months for complex cases). In each motion to dismiss,
Defendant stated that the length of pretrial incarceration was presumptively prejudicial, he
had suffered undue anxiety and concern, and his defense was impaired by fading witness
memories. Defendant did not present evidence to support his prejudice claims, but instead
asserted that the State bore the burden of proving the absence of prejudice, citing Salandre
v. State, 1991-NMSC-016, ¶¶ 25-28, 111 N.M. 422, 806 P.2d 562, holding modified by
Garza, 2009-NMSC-038, ¶ 22.

{11} Defendant was finally tried on May 17-20, 2010, after two years of pretrial
incarceration. On May 20, 2010, a jury convicted Defendant of two counts of criminal sexual
contact of a minor and one count of interference with communications. Defendant appealed,
and the Court of Appeals reversed, holding that Defendant’s right to a speedy trial was
violated. Ochoa, 2014-NMCA-065, ¶ 1. We granted certiorari on two issues:

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

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

Applying the fluid, ad hoc approach of Barker to the facts of the instant case, we agree with
the Court of Appeals that Defendant was prejudiced by his pretrial incarceration. However,
neither the length nor reason for delay weighs heavily against the State. Therefore, we
conclude that Defendant’s right to a speedy trial was not violated.

II.    DISCUSSION

A.     Length of Delay

{12} The first factor, length of delay, is both the threshold question in the speedy trial
analysis and a factor to be weighed with the other three Barker factors. State v. Serros, 2016-
NMSC-008, ¶ 22, 366 P.3d 1121. The Barker Court deferred to the states to prescribe
reasonable guidelines for bringing a case to trial. 407 U.S. at 523. This Court prescribed such
guidelines in Garza. See 2009-NMSC-038, ¶ 2. The applicable guideline is dependent upon
the complexity of the case: twelve months for a simple case, fifteen months for an
intermediate case, and eighteen months for a complex case. Id.

{13} Consistent with Barker, this Court in Garza emphasized that the guidelines are not
bright-line tests. See Barker, 407 U.S. at 523 (“We find no constitutional basis for holding
that the speedy trial right can be quantified into a specified number of days or months.”); see
also Garza, 2009-NMSC-038, ¶ 49 (explaining that the guidelines are not bright-line tests).
The guidelines are designed to prompt the district court to conduct a speedy trial analysis,

                                              4
and do not dispose of the claim itself. Id. ¶ 2. As explained in Garza, it would be contrary
to the flexible, fact-specific nature of the Barker approach to presume that there was a
violation of the right based on the length of delay alone. See Garza, 2009-NMSC-038, ¶ 13.
The Barker Court “specifically reject[ed] inflexible, bright-line approaches to analyzing a
speedy trial claim.” Garza, 2009-NMSC-038, ¶ 13 (citing Barker, 407 U.S. at 529-30).

{14} When the length of delay exceeds a guideline, it must be weighed as one factor in
determining whether there has been a violation of the right to a speedy trial, Serros, 2016-
NMSC-008, ¶ 22, and the burden of persuasion rests on the State to demonstrate that, on
balance, there was no violation of the right to a speedy trial. Garza, 2009-NMSC-038, ¶ 22.
As the delay lengthens, it weighs increasingly in favor of the accused. Id. ¶ 24. In other
words, a delay barely crossing the guideline “is of little help” to the defendant’s claim, while
a delay of extraordinary length weighs heavily in favor of the defendant. Serros, 2016-
NMSC-008, ¶ 26.

{15} We defer to the district court’s finding of complexity,3 which was supported by the
number of charges and nature of the allegations. See State v. Manzanares, 1996-NMSC-028,
¶ 9, 121 N.M. 798, 918 P.2d 714; see also State v. Rojo, 1999-NMSC-001, ¶ 52, 126 N.M.
438, 971 P.2d 829 (explaining that the complexity of the case is best determined by the
district court, which must consider both the nature and complexity of the crime). This was
a complex case which, under Garza, should have been brought to trial within eighteen
months. See 2009-NMSC-038, ¶ 2.

{16} Defendant was arrested on May 12, 2008. Twenty-two months later, the first trial
resulted in a mistrial. This period alone was sufficient to raise speedy trial concerns, unlike
cases in which the mistrial occurred within the speedy trial guideline. See, e.g., State v.
Castro, 2017-NMSC-027, ¶ 20, __ P.3d __ (noting that the mistrial occurred within the
prescribed period for a simple case). By the time of the retrial on May 17-20, 2010, the case
had been pending for a total of two years; six months past the Garza deadline. See 2009-
NMSC-038, ¶ 48.

{17} Nevertheless, while sufficient to trigger the speedy trial analysis, the two-year delay
was not extraordinary. See, e.g., Serros, 2016-NMSC-008, ¶ 24 (holding that a delay of four
years and three months was extraordinary and weighed heavily in the defendant’s favor); see
also Doggett v. United States, 505 U.S. 647 (1992), 657-58 (describing an eight and one-half
year delay between the defendant’s indictment and arrest as extraordinary). Thus, the length
of delay weighs only slightly against the State.


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

                                               5
B.     Reason for the Delay

{18} The second Barker factor requires us to evaluate the reason for the delay. 407 U.S.
at 530-31. We begin by calling to mind the three types of delay identified in Barker. See id.
at 531. First, “[a] deliberate attempt to delay the trial in order to hamper the defense should
be weighted heavily against the government.” Id. Second, negligent or administrative delay
weighs less heavily but nevertheless weighs against the State because “the ultimate
responsibility for such circumstances must rest with the government rather than with the
defendant.” Id. Third, neutral delay, or delay justified by a valid reason, does not weigh
against either party. See id. (stating that “a valid reason . . . should serve to justify
appropriate delay”); see also State v. O’Neal, 2009-NMCA-020, ¶¶ 20-21, 145 N.M. 604,
203 P.3d 135 (describing a mistrial and inclement weather as “purely neutral circumstances”
and holding that the resulting delays did not weigh against either party). In addition, delay
initiated by defense counsel generally weighs against the defendant. See Serros, 2016-
NMSC-008, ¶ 46 (“[T]he actions of defense counsel ordinarily are attributable to the
defendant.”).

{19} Because there was a mistrial in this case, the pre-trial delay falls into two separate
periods. Before the mistrial, trial was postponed for a number of reasons, including a
furlough affecting the Public Defender Department. The mistrial itself caused an additional
two months of delay, what we determine to be a reasonable length of time. For reasons we
explain below, we determine that the delay was primarily neutral and administrative.

1.     Pre-Mistrial delay

a.     Eighteen months of administrative delay

{20} The first four trial settings were postponed for administrative reasons, resulting in
nearly eighteen months of pretrial delay.

{21} The prosecution moved along expeditiously for the first six months following
Defendant’s arrest.4 The delays began when the district court vacated the first trial setting
of November 10, 2008 because the second day of trial fell on a state holiday. This resulted
in a one-month delay. The district court then vacated the second trial setting of December
17, 2008 to allow Defendant to conduct witness interviews. This caused a delay of two and


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

                                              6
one-half months. The district court vacated the third trial setting of March 4, 2009 due to a
pending motion. This resulted in a three-month delay. The district court continued the fourth
setting of May 26, 2009 because the trial was set for only one day instead of three days. This
led to a five-month delay.

{22} The State argues that, because Defendant asked the district court to vacate the second
trial setting in order to enable him to conduct witness interviews, the Court of Appeals
wrongly attributed the delay following the second trial setting of December 17, 2008 to the
State. We disagree with the State and affirm the Court of Appeals on this issue. See Ochoa,
2014-NMCA-065, ¶ 11. The basis for the continuance was to enable Defendant to adequately
prepare for trial. Defendant needed time to conduct witness interviews, which had been
postponed three times. This was a legitimate reason for Defendant to seek to postpone the
second trial setting, and the resulting two and one-half month delay does not weigh against
him. See Garza, 2009-NMSC-038, ¶ 11 (“ ‘[I]f either party is forced to trial without a fair
opportunity for preparation, justice is sacrificed to speed.’ ”). Further, the State did not
oppose Defendant’s request to continue the second trial setting. This period of delay was
necessary to enable Defendant to adequately prepare for trial, and the request does not weigh
against him under these circumstances.

{23} The foregoing continuances resulted in almost eighteen months of delay, all of which
were caused by negligent or administrative reasons. See Barker, 407 U.S. at 531 (explaining
that such delay should be weighed less heavily but nevertheless weighs against the State).
“As the length of delay increases, negligent or administrative delay weighs more heavily
against the State.” Serros, 2016-NMSC-008, ¶ 29 (citing Garza, 2009-NMSC-038, ¶ 26
(quoting Barker, 407 U.S. at 531)). Here, the length of delay caused by negligent or
administrative reasons was seventeen and one-half months—just under the Garza guideline
for a complex case. See Garza, 2009-NMSC-038, ¶ 48. In other words, the majority of delay
in this case falls into the “more neutral” category described in Barker. See 407 U.S. at 531.
As such, we weigh this period slightly against the State.

b.     Four and one-half months of neutral delay

{24} The fifth and sixth trial settings were vacated for reasons we determine to be
“neutral.” The resulting delay amounted to four and one-half months of neutral delay.

{25} The fifth trial setting of October 27, 2009 was vacated because the district court
judge’s sister died, causing two and one-half months of delay. This delay is a classic
example of what we consider “neutral” delay that weighs against neither party. See, e.g.,
O’Neal, 2009-NMCA-020, ¶¶ 20-21.

{26} The sixth trial setting of January 13, 2010 was delayed at Defendant’s urging, as a
furlough of employees of the Public Defender Department was expected to take effect on the
third day of trial. In his motion to continue, Defendant stated that Governor Richardson had
designated Friday, January 15, 2010 as a mandatory furlough day for all state employees and

                                              7
that defense counsel, a public defender, was subject to the mandatory furlough. Defendant
also noted that this Court, contrary to the Governor’s mandate, had ordered public defenders
to appear at hearings scheduled on the furlough day. Even so, Defendant asserted that
defense counsel would be without support staff and unable to provide effective assistance
at trial.

{27} The district court granted the request to continue the trial “to ensure the [d]efense
[c]ounsel ha[d] adequate support staff to prepare a defense.” Defendant argued that the
“mandatory furlough is an action by the State” and any resulting delay to the proceedings
should weigh against the State. The Court of Appeals agreed with Defendant and weighed
the ensuing months against the State. See Ochoa, 2014-NMCA-065, ¶ 10. We disagree with
attributing this delay to the State for the following reasons.

{28} In Vermont v. Brillon, the Supreme Court of the United States established the general
rule that “delays caused by defense counsel are properly attributed to the defendant, even
where counsel is assigned.” 556 U.S. at 94; id. at 85 (“[D]elays sought by counsel are
ordinarily attributable to the defendants they represent.”). However, the Brillon Court
foresaw an exception to the general rule where the delay results from a “systemic breakdown
in the public defender system.” See id. at 94 (internal quotation marks and citation omitted).
The Brillon Court did not define the contours of this exception.5 See id. Thus, we must
decide whether the furlough, which affected staff at the Public Defender Department for only
one day of trial, constitutes a “systemic breakdown in the public defender system.” See id.
(internal quotation marks and citation omitted). We conclude that it does not.

{29} Other courts have interpreted “systemic breakdown in the public defender system”
to describe problems that are not only institutional in origin, but sufficiently serious to justify
weighing the delay against the government. See, e.g., Weis v. State, 287 Ga. 46, 694 S.E.2d
350, 354-55 (2010) (holding that funding problems did not amount to a breakdown of the
entire public defender system when “lack of funding . . . was not the sole factor contributing
to the delay”), cert. denied, Weis v. Georgia, 562 U.S. 850 (2010); cf. United States v.
Young, 657 F.3d 408, 414-15 (6th Cir. 2011) (rejecting the argument that the district court’s
untimeliness was a “systemic failure” that should weigh against the State). We agree with
this interpretation, and conclude that a “systemic breakdown in the public defender system”
must be based upon problems that are both institutional in origin and debilitating in scope.



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

                                                8
{30} In the instant case, the furlough was initiated by the Governor and resulted from
events beyond the control of the defense and the prosecution. Cf. Brillon, 556 U.S. at 94
(“The effect of these earlier events should have been factored into the court’s analysis of
subsequent delay.”). Thus, the period of delay caused by the furlough was institutional in
origin. However, the furlough was not so debilitating as to justify attributing the delay to the
government.

{31} The importance of adequately funding the institutions obligated to fulfill our
constitutional responsibilities to accused persons cannot be overstated. See Kerr v. Parsons,
2016-NMSC-028, ¶ 40, 378 P.3d 1 (Vigil, J., specially concurring). However, we do not
consider the delay caused by the instant furlough to be sufficiently onerous to constitute a
“systemic breakdown of the public defender system.” See Brillon, 556 U.S. at 94 (internal
quotation marks and citation omitted). The furlough, which impacted only one day of a
three-day jury trial and resulted in just two months of the entire two-year delay, is not the
type of “systemic breakdown” contemplated by the Brillon Court. Cf. State v. Brown, 2015
WI App 90, ¶ 46, 365 Wis. 2d 608, 871 N.W.2d 867 (non-precedential) (concluding that
there was no systemic breakdown when its public defender department left an unlicensed
attorney on a case for a short period of the delay).

{32} Consistent with Brillon, we note that the “contrary conclusion could encourage
appointed counsel to delay proceedings by seeking unreasonable continuances, hoping
thereby to obtain a dismissal of the indictment on speedy-trial grounds.” See Brillon, 556
U.S. at 93. Such a rule could create perverse incentives for defense counsel seeking to secure
dismissal of a case. See id. In turn, “[t]rial courts might well respond by viewing continuance
requests made by appointed counsel with skepticism, concerned that even an apparently
genuine need for more time is in reality a delay tactic.” Id. Defendant specifically asserted
that he would lack the support of paralegals, secretaries, and investigators on the third day
of trial. To weigh the ensuing delay against the State could fault the State for delay initiated
by any defense attorney whose support staff were unavailable for trial. This result would be
inappropriate where the State diligently persevered in moving the case forward, as in the
instant case.

{33} We also do not consider the fact that Defendant sought the continuance—due to the
furlough—to be dispositive of this issue. As stated in Brillon, courts must account for the
earlier factors in a sequence of events when determining the reasons for delay. Id. at 94
(“The effect of these earlier events should have been factored into the court’s analysis of
subsequent delay.”). The district court was justified in granting the continuance in
anticipation of the furlough day. See id. We do not weigh this delay against a defendant “for
the simple reason that an indigent defendant has no control over whether a [s]tate has set
aside funds to pay his lawyer.” Cf. Boyer, 133 S.Ct. at 1707 (Sotomayor, J., dissenting from
dismissal of writ of certiorari). This analysis leads us to conclude that the two months
following the furlough do not weigh against either party. We therefore conclude that this was
a neutral delay.


                                               9
2.     Delay following the mistrial

{34} We proceed to consider the period after the mistrial. The mistrial occurred on March
8, 2010, two months before Defendant was convicted in a retrial. The district court found
this period to be neutral, consistent with precedent then in force. See O’Neal, 2009-NMCA-
020, ¶ 21 (weighing the period after a mistrial neutrally because it “[bore] no fault
attributable to the parties”). Since then, this Court has announced that after a mistrial “the
speedy trial clock does not begin to run anew—that is, the court does not have another
[eighteen] months to schedule a [complex] case for retrial.” Castro, 2017-NMSC-027, ¶ 21.

{35} In Castro, we rejected the approach under which the speedy trial “clock” resets and
runs anew from the date of the mistrial. Id.; see, e.g., State v. Strong, 258 Mont. 48, 50, 851
P.2d 415 (1993). The “clock” approach does not adequately protect incarcerated defendants
in the event of successive mistrials. Reuster v. Turner, 250 So.2d 264, 267 (Fla. 1971) (“A
construction allowing for a continuing series of new demand periods reinstated in the event
of each mistrial would . . . do violence to our organic guarantee of speedy trial . . . .”),
overruling Kelly v. State ex rel. Morgan, 54 So.2d 431, 432 (Fla. 1951). It is also
inconsistent with our obligation to consider the unique circumstances underlying each
speedy trial claim, including the particularized prejudice facing each defendant. See Barker,
407 U.S. at 522 (“[A]ny inquiry into a speedy trial claim necessitates a functional analysis
of the right in the particular context of the case.”); see also Garza, 2009-NMSC-038, ¶ 13
(“Violation of the speedy trial right is only determined through a review of the circumstances
of a case, which may not be divorced from a consideration of . . . the harm to the
defendant . . . . ”).

{36} Nor did we adopt a second approach under which a mistrial is not a “trial” for speedy
trial purposes, and defendants must be tried by a statutory deadline or released. See, e.g.,
Rider v. State, 118 S.E.2d 749, 750 (Ga. Ct. App. 1961). The second approach conflicts with
Garza, which “specifically rejects inflexible, bright-line approaches to analyzing a speedy
trial claim.” See 2009-NMSC-038, ¶ 13. It also conflicts with our rejection of the
presumption that the right to a speedy trial has been violated when the delay crosses a
threshold of “presumptive prejudice.” See id. ¶ 21. Like the “clock” approach, the second
approach prevents a court from examining the particular circumstances of each case. We
reject both of these approaches as inconsistent with our speedy trial jurisprudence.

{37} Castro embodies a third approach.“Ordinarily the court should schedule the retrial
as soon as its docket permits unless the parties justifiably require additional pre-retrial
discovery or motions practice.” Castro, 2017-NMSC-027, ¶ 21. In other words, a defendant
must be brought to trial within a reasonable time following a mistrial. See, e.g., People v.
Dixon, 87 Ill. App. 3d 84, 43 Ill. Dec. 252, 410 N.E.2d 252, 256 (2d Dist. 1980) (concluding
that the constitutional right to a speedy trial was not violated when the defendant was retried
within a reasonable time). This approach is consistent with both Barker and Garza. In the
event of a mistrial, district courts must consider and weigh the ensuing developments in
accordance with the particularized circumstances of each case. See Garza, 2009-NMSC-038,

                                              10
¶ 13; see also Barker, 407 U.S. at 530-31 (explaining that the speedy trial inquiry “is
necessarily dependent upon the peculiar circumstances of the case”).

{38} In Castro, we were “particularly disturb[ed]” by a thirty-two month post-mistrial
delay. Castro, 2017-NMSC-027, ¶ 21. In contrast, the retrial occurred just two months after
the mistrial in this case. No one can reasonably contend that the retrial did not occur in a
reasonable amount of time.

{39} We emphasize, however, the importance of timely disposition of cases. Boundless
pretrial delay caused by the inefficiencies of those responsible for the fair and timely
administration of justice has significant adverse consequences to the community and victims,
as well as the accused. Barker, 407 U.S. at 519 (“[T]here is a societal interest in providing
a speedy trial which exists separate from, and at times in opposition to, the interests of the
accused.”). The effect of extended delay on determinations of truth and reliability “is a two-
edged sword. It is the Government that bears the burden of proving its case beyond a
reasonable doubt. The passage of time may make it difficult or impossible for the
Government to carry this burden.” Doggett, 505 U.S. at 659 (O’Connor, J., dissenting).
When the regular course of prosecution is interrupted by an unexpected turn of events, it
should be rescheduled in the manner best designed to foster expeditious resolution of a case.
See Castro, 2017-NMSC-027, ¶ 21.

{40} In sum, under the second Barker factor, just under eighteen months of delay were
caused by administrative reasons. This falls within the guidelines for a complex case and
therefore weighs only slightly against the State. See Garza, 2009-NMSC-038, ¶ 2 (setting
eighteen months as the guideline for a complex case); id. ¶ 26 (“The degree of weight we
assign against the State for [administrative] delay is closely related to the length of
delay[.]”). Further, the four and one-half month delay caused by the unforeseen death and
the furlough of the employees of the Public Defender Department is neutral delay and does
not weigh against either party. Finally, the State brought Defendant to trial within a
reasonable time after the mistrial. Therefore, the second factor does not weigh heavily
against the State.

C.      Assertion of the Right to a Speedy Trial

{41} The third Barker factor asks us to consider whether Defendant asserted the right to
a speedy trial. 407 U.S. at 531-32. The district court has the discretion to weigh a
defendant’s assertion based on the circumstances of the case. Id. at 528-29. The frequency
and force of the objections can be taken into account in considering the defendant’s
assertion, as well as whether an assertion is purely pro forma. Id. at 529. Pro forma
assertions are sufficient to assert the right, but are given little weight in a defendant’s favor.
State v. Urban, 2004-NMSC-007, ¶ 16, 135 N.M. 279, 87 P.3d 1061.

{42} In evaluating the third factor, this Court has also noted the importance of closely
examining the circumstances of each case. Garza, 2009-NMSC-038, ¶ 33. This includes

                                               11
accounting for a defendant’s actions with regard to the delay, such as filing frivolous
motions or procedural maneuvers. See id. ¶ 32. On one hand, a single demand for a speedy
trial is sufficient to assert the right. See, e.g., id. ¶ 34. On the other hand, a defendant’s
assertion can be weakened by a defendant’s acquiescence to the delay. Id. We also consider
the consistency of a defendant’s legal positions with respect to the delay. See id. ¶ 33.

{43} In the instant case, Defendant filed five demands and four motions to dismiss for
violation of the right to a speedy trial. These filings were interspersed with Defendant’s
requests to continue the second and sixth trial settings. However, Defendant failed to
respond to the State’s three petitions to extend the time to commence trial.

{44} The State argues that Defendant weakened his assertion by requesting two
continuances. We disagree. The Court of Appeals correctly concluded that the continuances
sought by Defendant were the result of legitimate concerns in securing a fair trial for two
reasons. Ochoa, 2014-NMCA-065, ¶ 19. The first was to ensure adequate time to prepare
and review newly disclosed information. See id. ¶ 11. The second was because the third day
of trial fell on a furlough day. See id. ¶ 19. We do not expect a defendant to choose between
a speedy trial and an adequate defense. See Garza, 2009-NMSC-038, ¶ 32 (citing McNeely
v. Blanas, 336 F.3d 822, 831 (9th Cir. 2003)). Defendant did not weaken his assertion of the
right to a speedy trial by requesting two continuances. See Urban, 2004-NMSC-007, ¶ 16
(holding that the defendant’s request for a continuance did not “erase” his assertion of the
right).

{45} Defendant did, however, dilute the strength of his assertion by failing to respond in
a substantive manner to the State’s three requests to extend the “six-month rule.” See Rule
5-604(B)-(C) (Rule 5-604, the “six-month rule,” requires the State to bring a defendant to
trial within six months, but permits the district court to grant an extension for good cause.).
Defendant did not file a response to any of these petitions. The first petition states that
Defendant did not oppose the extension. The second petition states that Defendant opposed
the extension and would file a response—but Defendant never did so. The third petition
states that Defendant opposed the extension but “no hearing [was] necessary.”

{46} Substantive responses are necessary to adequately inform the district court of each
party’s position so it can fully and fairly consider the merits of the request. By failing to
assert a consistent position on the issue, Defendant acquiesced to the delay. Garza, 2009-
NMSC-038, ¶ 34 (explaining that a defendant’s “acquiescence to the delay” can mitigate the
strength of the assertion). Therefore, Defendant’s lack of response to the State’s three
requests to extend the six-month rule tempered his assertion of the right to a speedy trial.

{47} Further, given the timing of the State’s petitions, Defendant’s silence muted his
demands for a speedy trial. See Garza, 2009-NMSC-038, ¶ 33. Just one month before
Defendant filed his first demand for a speedy trial, Defendant did not oppose the State’s first
petition for an extension. One day after filing his second demand for a speedy trial,
Defendant did not respond to the State’s second request for an extension. Finally, just days

                                              12
before filing his fifth demand for a speedy trial, Defendant did not respond to the State’s
third request for an extension. The timing of these demands, in relation to Defendant’s
acquiescence to the State’s requests to continue the trial settings, is “reminiscent of
Penelope’s tapestry.”6 Therefore, we decline to weigh the third Barker factor in Defendant’s
favor.

D.     Prejudice

{48} The final Barker factor requires us to examine the prejudice to Defendant. 407 U.S.
at 532. “Prejudice, of course, should be assessed in the light of the interests of defendants
which the speedy trial right was designed to protect.” Id. These interests are preventing
oppressive pretrial incarceration, minimizing anxiety and concern of the accused, and
limiting the possibility that the defense will be impaired. Id. We examine these interests in
light of the specific facts and circumstances of each case. See id. at 522.

{49} We begin our analysis of the prejudice factor by noting two important facts. First,
Defendant was incarcerated for two years before he was ultimately tried and convicted.
Second, Defendant did not offer proof in the form of affidavits, testimony, or other
documentation to support his prejudice claim. Thus, we are compelled to assess the prejudice
factor with little assistance from Defendant. See Garza, 2009-NMSC-038, ¶ 35 (“[W]e will
not speculate as to the impact of pretrial incarceration on a defendant or the degree of
anxiety a defendant suffers.”).

{50} On appeal, the State asserts that the Court of Appeals erred in creating a bright-line
rule that twenty-two months of pretrial incarceration is unduly prejudicial even when a
defendant fails to make a particularized showing of prejudice. The State asserts that the
Court of Appeals wrongly emphasized the length of delay in concluding that Defendant was
prejudiced:

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


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

                                             13
Ochoa, 2014-NMCA-065, ¶ 23. For the reasons that follow, we reject the State’s argument
and agree with the Court of Appeals on this issue. In doing so, we address three interrelated
issues: (1) What is the role of the length of pretrial incarceration in determining whether a
defendant suffered prejudice; (2) Can we presume that a defendant suffered particularized
prejudice when, as here, he failed to present affirmative proof in support of his prejudice
claim; and (3) If so, what is the weight of such a presumption in the overall balancing test?
We hold that Defendant was prejudiced as a result of his continuous pretrial incarceration,
although this presumption does not dispose of the speedy trial claim.

{51} Defendant was continuously incarcerated during the two years leading up to trial. As
the Barker Court recognized:

       [There are] societal disadvantages of lengthy pretrial incarceration, [and]
       obviously the disadvantages for the accused who cannot obtain his release
       are even more serious. The time spent in jail awaiting trial has a detrimental
       impact on the individual. It often means loss of a job; it disrupts family life;
       and it enforces idleness. . . . The time spent in jail is simply dead time.
       Moreover, if a defendant is locked up, he is hindered in his ability to gather
       evidence, contact witnesses, or otherwise prepare his defense. Imposing those
       consequences . . . is serious.

407 U.S. at 532-33 (footnotes omitted). “The oppressive nature of the pretrial incarceration
depends on the length of incarceration, whether the defendant obtained release prior to trial,
and what prejudicial effects the defendant has shown as a result of the incarceration.” Garza,
2009-NMSC-038, ¶ 35 (citing Barker, 407 U.S. at 532-33). Because some degree of
oppression and anxiety is inherent in every incarceration, “we weigh this factor in the
defendant’s favor only where the pretrial incarceration or anxiety suffered is undue.” Id. ¶
35 (citation omitted).

{52} Consistent with Barker and Garza, the Court of Appeals properly considered the
length of incarceration in determining whether there was oppressive pretrial incarceration.
See Barker, 407 U.S. at 532-33; Garza, 2009-NMSC-038, ¶ 35 (citing Barker, 407 U.S. at
532-33). Although a defendant bears the burden of proving prejudice, this burden varies with
the length of pretrial incarceration. See Garza, 2009-NMSC-038, ¶ 35 (explaining that a
defendant “bear[s] the burden of production on this issue” (internal quotation marks and
citation omitted)); see, e.g., id. ¶ 37 (concluding that the defendant made no showing of
prejudice when he spent only two hours in jail and apparently offered no proof in support
of his prejudice claim); see also Spearman, 2012-NMSC-023, ¶¶ 3, 39 (concluding that the
record was too limited to determine whether there was prejudice when the defendant spent
only one day in jail); see Serros, 2016-NMSC-008, ¶¶ 21, 90 (considering the defendant’s
testimony in its conclusion that four years of pretrial incarceration resulted in extreme
prejudice).

{53}   Generally, mere allegations are insufficient to prove prejudice. Jackson v. Ray, 390

                                             14
F.3d 1254, 1264 (10th Cir. 2004) (stating that “[t]he burden of showing all types of prejudice
lies with the individual claiming the violation and the mere ‘possibility of prejudice is not
sufficient’ ”). For example, the defendant in Garza spent only two hours in jail and did not
offer proof in support of his prejudice claim. 2009-NMSC-038, ¶ 37. We held that the
defendant “made no showing of prejudice” cognizable under the fourth Barker factor. Id.
Likewise, the defendant in Spearman asserted that he lost employment opportunities, had
to move, and eventually suffered bankruptcy due to the pending charges. 2012-NMSC-023,
¶¶ 38, 39. He offered no evidence in support of his assertions and spent only one day in jail.
Id. ¶¶ 3, 39. This Court concluded that it could not determine whether the defendant was
prejudiced due to the lack of evidence in the record. See id. ¶ 39.

{54} However, lengthy and onerous pretrial incarceration may render affirmative proof
unnecessary to find that the defendant suffered prejudice. See, e.g., Serros, 2016-NMSC-
008, ¶ 90; State v. Brown, 2017-NMCA-046, ¶ 37, 396 P.3d 171 (rejecting the State’s
argument that a defendant incarcerated for thirty-three months did not suffer particularized
prejudice). In Serros, for example, the defendant testified that he was incarcerated for more
than four years in custodial segregation. See 2016-NMSC-008, ¶ 88. We noted that “[the
d]efendant’s testimony easily establishes that the delay . . . caused him to suffer oppressive
pretrial incarceration.” Id. ¶ 90. However, we also acknowledged that the defendant’s
testimony was not essential to our conclusion that he suffered oppressive pretrial
incarceration. See id. (describing the length of incarceration as “oppressive on its face”).
Independent of the testimony describing his specific circumstances, the oppressive nature
of the incarceration was self-evident based on the sheer length of incarceration. See id. Thus,
the length of incarceration is a counterweight to a defendant’s burden of production.

{55} The State incorrectly assumes that a court cannot find that a defendant has suffered
prejudice when the defendant fails to present affirmative proof in support of his prejudice
claim. Despite the emphasis in our recent jurisprudence on a defendant’s burden in showing
prejudice, we have also acknowledged that a defendant need not always present affirmative
proof in support of a prejudice claim. Garza, 2009-NMSC-038, ¶ 39 (stating that “in some
circumstances, prejudice may be presumed” and that “[t]he presumption that pretrial delay
has prejudiced the accused intensifies over time” (alteration in original) (internal quotation
marks and citations omitted)); id. (recognizing that a defendant need not show prejudice
when the other three Barker factors weigh strongly in his favor (citing United States v.
Mendoza, 530 F.3d 758, 764 (9th Cir. 2008))); see also Moore v. Arizona, 414 U.S. 25, 26
(1973) (per curiam) (“Barker v. Wingo expressly rejected the notion that an affirmative
demonstration of prejudice was necessary to prove a denial of the constitutional right to a
speedy trial[.]”).

{56} The United States Supreme Court has expressly held that “consideration of prejudice
is not limited to the specifically demonstrable[.]” Doggett, 505 U.S. at 655. In Doggett, the
Court held that the defendant suffered presumptive prejudice as a result of an eight and one-
half year delay. Id. at 655-58. “[E]xcessive delay presumptively compromises the reliability
of a trial in ways that neither party can prove or, for that matter, identify.” Id. at 655.

                                              15
Although the Doggett Court addressed the third type of prejudice—impairment of the
defense—its reasoning is persuasive with respect to Defendant’s other prejudice claims.
Pursuant to Doggett, a court can under certain circumstances presume that a defendant
suffered some degree of prejudice even without affirmative proof. Id. at 655 (presuming that
a defendant suffered prejudice and noting that certain forms of prejudice “can rarely be
shown”).

{57} We agree with the Court of Appeals that Defendant’s two-year incarceration resulted
in prejudice. Ochoa, 2014-NMCA-065, ¶ 23. Continuous pretrial incarceration is obviously
oppressive to some degree, even in the absence of affirmative proof. See Barker, 407 U.S.
at 532-33 (describing disadvantages for the accused as “obvious”). When, as in this case, a
defendant was continuously incarcerated for an extended period of time, it requires no
speculation to determine that the defendant suffered some prejudice. Cf. Loud Hawk, 474
U.S. at 304, 315 (1986) (holding that the prejudice to respondents who were neither under
indictment nor subject to official restraint was too speculative to weigh in their favor).
Therefore, we presume that Defendant was prejudiced simply by being continuously
incarcerated for two years.

{58} We are unpersuaded by the State’s argument that the length of delay is too short to
presume prejudice. In support of this argument, the State relies on cases in which the
defendants did not suffer oppressive pretrial incarceration. See Barker, 407 U.S. at 533-34
(finding no prejudice when the defendant was incarcerated for just ten months of the five-
year delay); Jackson, 390 F.3d at 1258, 1263-65 (declining to presume prejudice when the
defendant was incarcerated for just one year and nine months out of the four-year delay,
without considering whether the defendant suffered oppressive pretrial incarceration);
United States v. Serna-Villarreal, 352 F.3d 225, 232-33 (5th Cir. 2003) (holding that a delay
of three years and nine months was too short to presume prejudice, without addressing
whether the defendant was continuously incarcerated). These cases are distinguishable from
the instant case.

{59} Nor are we convinced that the prejudice to Defendant is too speculative to consider
in the speedy trial analysis. See, e.g., Loud Hawk, 474 U.S. at 314. In Loud Hawk, a split
court held that the mere possibility of prejudice was not sufficient to support the
respondent’s assertion that their speedy trial rights were violated. See id. at 315. The Loud
Hawk respondents—unlike Defendant—were unconditionally released from custody. Id. at
308. Indeed, Loud Hawk expressly holds that the speedy trial right applies when defendants
are subject to substantial restrictions on their liberty. Id. at 312 (“[T]he Speedy Trial
Clause’s core concern is impairment of liberty[.]”). We agree with the Court of Appeals that
Defendant suffered “the ‘precise kind’ of prejudice” the speedy trial right is meant to
prevent. See Ochoa, 2014-NMCA-065, ¶ 23.

{60} But our inquiry does not end there. Though it is obvious that Defendant was
prejudiced by virtue of his continuous incarceration, absent affirmative proof, we can only
speculate as to the specific circumstances of his incarceration. See Garza, 2009-NMSC-038,

                                             16
¶ 35. In Serros, for example, the defendant’s testimony supported our determination that the
pretrial incarceration resulted in extreme prejudice. See 2016-NMSC-008, ¶¶ 88-90 (“[The
d]efendant’s testimony easily establishes that the delay in his case caused him to suffer
oppressive pretrial incarceration.”). However, a defendant could conceivably suffer
oppressive pretrial incarceration in a much shorter time, or suffer less prejudice during a
longer period of incarceration. These particulars are unknowable in the absence of
affirmative proof. With affirmative proof, Defendant could have provided the Court with a
basis for concluding that he suffered extreme prejudice.

{61} Similarly, we can presume that Defendant suffered some degree of anxiety and
concern, but can only speculate as to whether such prejudice was undue. See Spearman,
2012-NMSC-023, ¶ 39 (declining to hold that the defendant suffered undue anxiety based
on the bare allegations of defense counsel); see also Garza, 2009-NMSC-038, ¶ 35
(requiring the anxiety to be undue in order to weigh in the defendant’s favor). Defendant did
not offer affidavits, testimony, or documentation with respect to his specific circumstances
of anxiety. Rather, Defendant argued that the State bore the burden of showing that he had
not suffered anxiety or concern. Without this showing, we decline to speculate as to the
particularized anxiety or concern he may have suffered. See Garza, 2009-NMSC-038, ¶ 35.

{62} We also presume that there was some impairment of the defense. Doggett, 505 U.S.
at 655 (explaining that impairment of the defense may be impossible to prove). The Doggett
Court explicitly recognized the concept of presumptive prejudice in the form of impairment
of the defense, id. at 655, and the Barker Court described this as the “most serious” form of
prejudice because “inability of a defendant adequately to prepare his case skews the fairness
of the entire system.” 407 U.S. at 532. Fading witness memories are just one collateral effect
of prolonged pretrial delay. See id. (noting the possibility that the defense could also be
impaired by loss of exculpatory evidence). Nevertheless, Defendant was obligated to state
“with particularity what exculpatory [evidence] would have been offered[.]” Serros, 2016-
NMSC-008, ¶ 85 (first alteration in original) (internal quotation marks and citations
omitted). Here, Defendant asserted that the memories of the alleged victims exhibited
significant discrepancies over the course of the delay, and that one of the witnesses changed
her story. Defendant did not state with particularity what exculpatory evidence may have
been offered.

{63} Finally, we must determine the weight of our presumption in the overall balance.
Presumptive prejudice is not dispositive of the speedy trial claim. See Doggett, 505 U.S. at
656. “[P]resumptive prejudice cannot alone carry a Sixth Amendment claim without regard
to the other Barker criteria.” Id. Rather, “it is part of the mix of relevant facts, and its
importance increases with the length of delay.” Id.

{64} In conclusion, we presume that Defendant was prejudiced by his two-year,
continuous incarceration. This prejudice is obvious and would be unjust to ignore. Cf.
Serros, 2016-NMSC-008, ¶ 27 (“To weigh a delay of over four years against [the
d]efendant—even slightly—[would be] simply unjust . . . .”). However, without knowing his

                                             17
specific circumstances, we would be strained to conclude that this prejudice prevails over
the other three factors. Defendant bore the burden of showing particularized prejudice,
Garza, 2009-NMSC-038, ¶ 35, which would enable this Court to weigh this factor more
strongly in his favor. In the absence of such proof, this factor does not tip the scale in
Defendant’s favor. See Doggett, 505 U.S. at 656.

E.     Balancing the Barker Factors

{65} We conclude that, while Defendant was prejudiced by his two-year pretrial
incarceration, neither the length of delay, reasons for delay, nor assertion of the right to a
speedy trial weigh in his favor. We presume prejudice based on Defendant’s continuous
incarceration for an extended period before trial. Defendant’s burden of showing
particularized prejudice was counterbalanced by the length of his pretrial incarceration.
Nevertheless, this presumption does not weigh strongly in Defendant’s favor in this case.
Thus, Defendant was not deprived of his right to a speedy trial.

{66} In short, our presumption that Defendant was prejudiced is simply not enough to tip
the scale in favor of Defendant’s speedy trial claim. Despite the prejudice to Defendant, the
other factors do not weigh strongly in his favor. We therefore conclude that Defendant’s
right to a speedy trial was not violated.

III.   CONCLUSION

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

{68}   IT IS SO ORDERED.

                                              ____________________________________
                                              BARBARA J. VIGIL, Justice

WE CONCUR:

____________________________________
JUDITH K. NAKAMURA, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice


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